              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     ANTONIO M. CASTELLANO
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201100248
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 21 November 2013.
Military Judge: LtCol David A. Jones, USMC.
Convening Authority: Commanding General, 1st Marine
Aircraft Wing, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Col J.R. Woodworth,
USMC (30 Mar 2011 and 21 Apr 2011 Addendum); LtCol J.M.
Heckel, USMC (24 Apr 2014 and 2 Jun 2014 Addenda).
For Appellant: LT Gabriel Bradley, JAGC, USN; Capt Brian
Magee, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj Tracey
Holtshirley, USMC; LT James Belforti, JAGC, USN.

                           11 December 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     This case is before us a second time. A military judge
sitting as a general court-martial convicted the appellant,
pursuant to his plea, of one specification of adultery in
violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934. A panel of members with enlisted representation
sitting as a general court-martial convicted the appellant,
contrary to his pleas, of one specification of attempted
adultery, two specifications of indecent conduct, one
specification of consensual sodomy, and two specifications of
assault consummated by a battery, in violation of Articles 80,
120, 125, and 128, UCMJ, 10 U.S.C. §§ 880, 920, 925, and 928.

     The members sentenced the appellant to confinement for
eighteen months, reduction to pay grade E-1, forfeiture of all
pay and allowances, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged.

     On the first appeal, this court set aside the two
specifications of assault consummated by a battery for
instructional error, affirmed the remaining findings, and
affirmed the sentence as approved by the CA. United States v.
Castellano, No. 201100248, 2012 CCA LEXIS 571, unpublished op.
(N.M.Ct.Crim.App. 26 Jun 2012) (per curiam). The Court of
Appeals for the Armed Forces then set aside the appellant’s
consensual sodomy conviction, affirmed the remaining findings,
set aside the sentence, and authorized a rehearing on the
consensual sodomy offense and the sentence. United States v.
Castellano, 72 M.J. 217, 223 (C.A.A.F. 2013). The CA directed a
rehearing on sentence only.

     On rehearing, the members sentenced the         appellant to
confinement for 308 days,1 forfeiture of all         pay and allowances,
reduction to pay grade E-1, a reprimand, and         a bad-conduct
discharge. The CA approved this sentence as          adjudged and
ordered it executed.2

     The appellant now raises four assignments of error (AOE)
related to the sentence rehearing: (1) his sentence, which now
includes a reprimand, is more severe than the sentence approved


1
  The appellant had already served 308 days of confinement and had been
released on parole at the time of his sentence rehearing.
2
  To the extent the CA’s action purports to execute the bad-conduct discharge,
it is a legal nullity. United States v. Tarniewicz, 70 M.J. 543, 544
(N.M.Ct.Crim.App. 2011). We also note that the CA’s action does not include
a copy of the letter of reprimand as required by section 0152 of the Manual
of the Judge Advocate General, Judge Advocate General Instruction 5800.7F (26
Jun 2012). We have been informed the CA has not and does not intend to issue
a letter in this case.


                                      2
at his original court-martial;3 (2) he was prejudiced by the
systematic exclusion of potential court-martial members on the
basis of rank; (3) the military judge erred by failing to grant
defense challenges for cause against two members; and (4) the
military judge abused his discretion by admitting evidence in
aggravation of stale prior non-judicial punishments (NJP).4

     After careful consideration of the record of trial and the
parties’ pleadings, we conclude that the affirmed findings and
the approved sentence are correct in law and fact and that no
error materially prejudicial to the substantial rights of the
appellant and not corrected during the prior appellate review of
this case was committed. Arts. 59(a) and 66(c), UCMJ.

                                   Background

     In September of 2009, the appellant engaged in sexual
intercourse with Lance Corporal B, while he was married to
another woman, resulting in the appellant’s plea of guilty to
adultery. The appellant also stands convicted of attempted
adultery with a second Marine, Private First Class H, and two
specifications of indecent conduct for exceeding the scope of
her consent to certain sexual acts in September 2010.
Additional facts necessary for the resolution of each AOE are
developed below.

                          Member Selection Process

     The appellant argues that the military judge erred by
denying the trial defense counsel’s request to dismiss the panel
because members were systematically excluded on the basis of
rank. The CA in this case, Commanding General of 1st Marine
Aircraft Wing (MAW), was located in Okinawa, Japan but the
sentence rehearing was held at Marine Corps Recruit Depot (MCRD)
Parris Island. The 1st MAW Staff Judge Advocate (SJA),
Lieutenant Colonel (LtCol) H, asked the SJA from MCRD, Parris
Island, Major (Maj) N, for assistance in securing members.
LtCol H did not specify how members were to be selected. Maj N
sent an email to tenant commands requesting availability of
majors, lieutenant colonels, and enlisted personnel in the grade
of staff sergeant and above. The CA was presented with 23
questionnaires from Parris Island units, representing Marines in

3
    This AOE is rendered moot by our action in the decretal paragraph.
4
  AOEs III and IV are raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).


                                        3
ranks 0-3 through O-5 and E-6 through E-9, from which the CA
selected six officers and six enlisted to comprise General
Court-Martial Convening Order (GCMCO) 2-13A.
     After discovering that certain ranks had not been
solicited, LtCol H requested additional questionnaires from
Marines in the excluded ranks. The CA was given a package
containing the original 23 members and 20 additional members’
questionnaires. The additional questionnaires included nine E-
4’s, ten E-5’s, and one warrant officer.5 The CA then approved
GCMCO 2-13B, increasing the number of primary panel members from
12 to 14 by removing a master sergeant and a staff sergeant and
adding a chief warrant officer, two sergeants, and a corporal.
     Prior to the sentence rehearing, the appellant challenged
the court-martial member selection process because certain ranks
were systematically excluded. The military judge denied the
defense motion on the basis that the CA had adequately remedied
the problem by reviewing the additional members’ questionnaires
before finalizing GCMCO 2-13B.
     Whether a panel is properly selected is a matter of law
that this court reviews de novo. United States v. Gooch, 69
M.J. 353, 358 (C.A.A.F. 2011) (citing United States v. Dowty, 60
M.J. 163, 171 (C.A.A.F. 2004)). We are bound by the findings of
the military judge unless they are clearly erroneous. United
States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001).
     The CA must personally select members who are “best
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament.” Art.
25(d)(2), UCMJ. The CA may rely on subordinates to nominate
potential court members. Id. at 455. However, “[w]hen the
request for nominations does improperly include or exclude
certain members,” the court must “ensure that those actions do
not taint the selection by the convening authority.” United
States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999).
     The burden is on the defense to show a systematic exclusion
of qualified personnel from the selection process. United
States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000) (citing
Roland, 50 M.J. at 69). Once the defense meets their burden of
production, “the Government must show by competent evidence that
no impropriety occurred when selecting appellant’s court-martial
members.” Id. (citation omitted). Under the circumstances of

5
  The military judge found there were no questionnaires from lieutenants
because none were available for the court-martial. Appellate Exhibit XCVI at
2.
                                     4
this case, we conclude that the appellant has not met his
burden.
     Once the CA recognized that members had been improperly
excluded by rank, he reconsidered the panel and added members of
ranks that had originally been excluded. The record is utterly
devoid of any indication that the CA intended to exclude any
rank or that the CA or his subordinates made any attempt to
“stack” the court with higher-ranking Marines. Cf. United
States v. Hilow, 32 M.J. 439, 442 (C.M.A. 1991) (finding members
panel tainted when CA’s subordinates attempted to stack the
panel even though the CA was unaware of the “stacking” attempt).

      Under the specific circumstances of this case, we agree
with the military judge that the CA “acted appropriately to cure
a defect in the process” and “his remedial actions removed any
possible taint from the proceedings.” Appellate Exhibit XCVI at
6; see also RULE FOR COURTS-MARTIAL 505(c)(1)(A), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) (“[b]efore the court-martial is
assembled, the convening authority may change the members of the
court-martial without showing cause”); Dowty, 60 M.J. at 175
(finding error of screening the panel pool using the
impermissible variable of volunteer was cured when the CA
personally selected the panel and applied the criteria of
Article 25(d)). Here, the CA personally selected all of the
members based on the proper statutory criteria, and the court
was ultimately properly convened.

     Moreover, there is nothing in the record to suggest that
the members who sat on the appellant’s court-martial were
anything but fair and impartial. To the contrary, the members
were the product of a rigorous voir dire process wherein the
military judge granted three of six defense challenges for cause
and removed another member upon both defense and government
objection.6 On these facts, we are confident that there was no
material prejudice to the appellant's substantial rights and
that the appellant “received the statutorily qualified, fair,
and impartial panel to which he was entitled.” United States v.
Dowty, 57 M.J. 707, 715 (N.M.Ct.Crim.App. 2002), aff’d, 60 M.J.
163 (C.A.A.F. 2004).




6
   Of the three challenges for cause that were not granted, one member was
struck after a peremptory challenge.


                                      5
                      Challenges for Cause

     The appellant alleges the military judge abused his
discretion when he denied the defense’s challenge for cause of
Chief Warrant Officer-2 (CWO2) B and Sergeant (Sgt) L, who
expressed during voir dire that they held negative feelings
about adultery that were rooted in their religious beliefs.

     A member must be excused for cause whenever it appears that
the member should not sit as a member in the interest of having
the court-martial “free from substantial doubt as to legality,
fairness, and impartiality.” R.C.M. 912(f)(1)(N).

     A military judge’s decision on a challenge for cause is
reviewed for a “‘clear abuse of discretion.’” United States v.
Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006) (quoting United
States v. James, 61 M.J. 132, 138 (C.A.A.F. 2005)). As we
conduct our review, we recognize that “‘military judges must
liberally grant challenges for cause.’” James, 61 M.J. at 139
(quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.
2002)) (additional citation omitted).

     We review issues of implied bias for an abuse of
discretion, but the objective nature of the inquiry affords less
deference to the military judge. United States v. Townsend, 65
M.J. 460, 463 (C.A.A.F. 2008) (citing United States v.
Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000) and United States v.
Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). However, “[a]
military judge who addresses implied bias by applying the
liberal grant mandate on the record will receive more deference
on review than one that does not.” United States v. Clay, 64
M.J. 274, 277 (C.A.A.F. 2007).

     Notwithstanding a member’s disclaimer of bias, there is
implied bias “when most people in the same position would be
prejudiced.” Unites States v. Schlamer, 52 M.J. 80, 93
(C.A.A.F. 1999) (citation and internal quotation marks omitted).
We view implied bias objectively “‘through the eyes of the
public, focusing on the appearance of fairness.’” Clay, 64 M.J.
at 276 (quoting United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998)).

     We hold that the military judge did not abuse his
discretion in denying the challenges of CWO2 B and Sgt L.
During voir dire, CWO2 B and Sgt L both expressed they had
religious beliefs against adultery. Recognizing that adultery
is a crime under the UCMJ like any other, the military judge

                                6
found that “just because somebody has a strong feeling contrary
to adultery does not disqualify them from being a member.”
Record at 1615. A moral or religious distaste for a crime does
not per se require disqualification of a panel member.
Schlamer, 52 M.J. at 92 (citing United States v. Bannwarth, 36
M.J. 265, 268 (C.M.A. 1993)); cf. Clay, 64 M.J. at 278 (finding
a member unfit when he said he would be “merciless” to someone
he found guilty of raping a “young female,” and was equivocal
when responding to questions about whether he could have an
elastic view toward sentencing).

     In this case, we do not believe the appearance of the
proceedings was rendered unfair by CWO2 B or Sgt L’s presence on
the panel. CWO2 B stated that his beliefs did not impact his
ability to sit as a member of the court-martial, he would
consider the full range of punishments, and he would follow the
military judge’s instructions when determining an appropriate
sentence. Record at 1542-43, 1545. Sgt L noted, while his
personal religious belief was that adultery was a sin, it was
the same as any other sin. Id. at 1592. He also stated he
would consider the entire range of punishment, including no
punishment, and that he was capable of assessing a fair and just
sentence and keeping an open mind as to what the sentence should
be. Id. at 1592, 1596, 1600-01.

     Applying the liberal grant mandate, the military judge
granted three of six defense challenges for cause and removed
another member upon both defense and Government objection. The
military judge’s statements on the record clearly demonstrate
that he made a credibility determination as to the two members
and found them to be able and willing to sentence the appellant
fairly and in accordance with his instructions. We find no
abuse of the military judge’s discretion.

               Sentencing Evidence in Aggravation

     In his final AOE, the appellant avers that the military
judge erred by admitting over defense objection, NJP records
that were stale at the time of resentencing.

     “A military judge’s decision to admit or exclude evidence
is reviewed under an abuse of discretion standard.” United
States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing
United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000)).
We will not overturn a military judge's evidentiary decision
unless that decision was arbitrary, fanciful, clearly
unreasonable, or clearly erroneous. United States v. Miller, 46

                                7
M.J. 63, 65 (C.A.A.F. 1997) (citing United States v. Travers, 25
M.J. 61, 62 (C.M.A. 1987)). Sentencing evidence is also subject
to the MILITARY RULE OF EVIDENCE 403, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.) balancing test. United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000) (citing United States v. Rust, 41 M.J.
472, 478 (C.A.A.F. 1995)). If the military judge conducts a
proper balancing test under MIL. R. EVID. 403, the “ruling will
not be overturned unless there is a ‘clear abuse of
discretion.’” Id. (quoting United States v. Ruppel, 49 M.J.
247, 250 (C.A.A.F. 1998)).

     Here, the appellant committed the offenses for which he was
being sentenced in 2009 and 2010. The two NJPs concern
unrelated misconduct that occurred in 2009. Prosecution Exhibit
20. At the sentence rehearing, the defense argued that the
accused was not in his current enlistment, so his NJPs were
barred under Manual of the Judge Advocate General, Judge
Advocate General Instruction 5800.7F, § 0141 (26 Jun 2012)
(allowing NJPs as evidence in court-martials if they “reflect
offenses committed during the current enlistment or period of
service of the accused”). Record at 1684.

     The military judge found that the appellant was still in
his current enlistment due to the extension of his enlistment
for trial and the appellate process. Id. at 1688. He also
noted that the NJPs took place within two years of the date of
the offenses on the charge sheet. Additionally, the evidence
was properly admitted as evidence in aggravation at the
appellant’s first court-martial. Id. at 1685. Finally, the
military judge conducted a MIL. R. EVID. 403 analysis, finding
that the NJPs’ “probative value is high for the government, they
want to be able to show that this accused did not have a clean
record when he committed these offenses” and that such value was
not substantially outweighed by the danger of unfair prejudice
to the accused. Id. at 1689. He noted that the members were
entitled to see what type of Marine the appellant was at the
time of the offenses. Id. Under these circumstances, the
military judge did not abuse his discretion when he admitted the
appellant’s NJP records into evidence under R.C.M. 1001(b).

                              Conclusion

     The convening authority having declined to order a
rehearing as to the consensual sodomy offense, Charge III and
its specification are dismissed. The remaining findings of
guilty having previously been affirmed, only so much of the
sentence as includes 308 days confinement, forfeiture of all pay

                                  8
and allowances, reduction to pay grade E-1, and a bad-conduct
discharge is affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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