                        UNITED STATES, Appellee

                                    v.

                     Eric R. CASTILLO, Sergeant
                        U.S. Army, Appellant

                              No. 14-0457

                       Crim. App. No. 20110935

       United States Court of Appeals for the Armed Forces

                       Argued October 21, 2014

                      Decided February 12, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and OHLSON, JJ., joined. STUCKY, J., filed a separate
concurring opinion. RYAN, J., filed a separate opinion
concurring in the result.

                                 Counsel

For Appellant: Captain Aaron R. Inkenbrandt (argued); Colonel
Kevin Boyle, Lieutenant Colonel Jonathan F. Potter, and Captain
Michael J. Millios (on brief); Lieutenant Colonel Peter
Kageleiry Jr. and Major Vincent T. Shuler.

For Appellee: Captain Janae M. Lepir (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Kenneth
W. Borgnino (on brief).



Military Judge:   T. Mark Kulish



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Castillo, No. 14-0457/AR


     Chief Judge BAKER delivered the opinion of the Court.

     Contrary to his pleas, a general court-martial composed of

officer and enlisted members at Camp Humphreys, Republic of

Korea, convicted Appellant of rape and assault consummated by

battery, in violation of Articles 120 and 128, UCMJ, 10 U.S.C.

§§ 920, 928 (2006).   He was sentenced to confinement for two

years, forfeitures of all pay and allowances, reduction to the

lowest enlisted grade, and a dishonorable discharge.   The

convening authority reduced the term of confinement by one

month, and the United States Army Court of Criminal Appeals

summarily affirmed.   United States v. Castillo, No. ARMY

20110935 (A. Ct. Crim. App. Jan. 29, 2014) (per curiam).     We

granted review of a single issue:

     WHETHER, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE
     MILITARY JUDGE ERRED IN DENYING THE DEFENSE IMPLIED
     BIAS CHALLENGE AGAINST LTC DS IN LIGHT OF HIS PERSONAL
     EXPERIENCE AS A SEXUAL ASSAULT VICTIM, HIS DIRECT
     SUPERVISORY ROLE OVER TWO OTHER MEMBERS, HIS ONGOING
     RELIANCE ON THE TRIAL COUNSEL FOR MILITARY JUSTICE
     ADVICE, THE PRESENCE OF FOUR OTHER MEMBERS WHO ALSO
     RECEIVED MILITARY JUSTICE ASSISTANCE FROM THE TRIAL
     COUNSEL, AND THE FACT THAT THE PANEL WAS SELECTED
     EXCLUSIVELY FROM APPELLANT’S BRIGADE.

     For the reasons stated below, we conclude that the military

judge did not err in denying the implied bias challenges raised

by the defense.   In contrast to United States v. Peters, __ M.J.

__ (C.A.A.F. 2015), the panel members’ relationships with trial

counsel in this case were not of a qualitative nature to rise

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above the normative sorts of relationships expected in military

service that could impact perceptions of fairness.

                              Background

     Appellant was charged with raping and assaulting Specialist

CC while stationed in Korea.     Following individual voir dire,

trial defense counsel challenged several panel members on the

basis of actual and implied bias.      The military judge granted

the defense’s challenge for cause against a panel member whose

wife had been the victim of sexual assault, but denied the other

challenges.     This appeal centers on the defense’s challenge for

cause against Lieutenant Colonel (LTC) DS.

     During voir dire, LTC DS testified that he had been a

victim of sexual assault as a child “twenty, almost thirty years

ago.”     He testified that the assault would not impact his

ability to judge the case, because he did not view the case on

trial “as the same issue at all.”      He also testified that he was

acquainted with the trial counsel:

     Q.    Captain Sandys, how is it that you know him?

     A. He’s the brigade trial counsel for the aviation
     brigade.

     Q.    How often do you interact with him?

     A. Once every week or once every other week. It depends
     on the individuals that we’re having any military justice
     issues with.




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United States v. Castillo, No. 14-0457/AR


     Q. Have you personally consulted with him with respect to
     military justice related issues?

     A.   Yes, I have.

     Q.   In what way?

     A. Asking his opinion on charges I’m bringing up against
     Soldiers under my command.

     Q.   And how did you view his advice?

     A.   Very well.

     Q.   Your view was that he gave you sound advice?

     A.   He gave me confident advice, yes.

     Q. Did you use that advice to then make recommendations to
     your own commander?

     A. Sometimes.     Sometimes I agree with him and sometimes I
     do not.

     Q. And you said that this was on a weekly to bi-weekly
     basis?

     A.   Roger.

     Q.   How long have you known my colleague?

     A. I’ve been in command for 90 days, so since I took
     command 90 days ago.

     Prior to challenging LTC DS for cause, the defense brought

a challenge against a separate panel member, LTC James Duncan,

on the grounds that he supervised three panel members and on the

basis of his relationship with trial counsel, who served as the



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brigade trial counsel. 1   As to his interaction with trial

counsel, the defense argued:

     CDC: Lieutenant Colonel Duncan . . . regularly meets with
     his brigade judge advocate I think is the right term for
     Captain Sandys. Regularly meets with him, he has a very
     favorable view of -- well he has a favorable view of
     Captain Sandys’s legal advice and Captain Sandys is going
     to continue to serve as his legal advisor[,] and I just
     don’t see how you can have a panel member whose lawyer,
     organization counsel, is serving as a prosecutor. You
     certainly would never have a case where the defense
     attorney’s former client was on the panel.

     The military judge denied the challenge for cause, finding

that he relies on Captain Sandys’s advice “in part,” and “he

doesn’t rely on him exclusively or follow his advice

automatically.”   The defense then brought the following

challenge for cause against LTC DS:

     CDC: With respect to [LTC DS], sir, it’s a nearly
     identical argument to [the defense’s previous challenge to
     LTC Duncan,] with the addition of two issues. One is going
     to be on experiences as a victim. And two is going to be
     his additional [sexual assault] training as an ROTC
     professor . . . .

     The military judge denied the challenge for cause, finding

that:

     [LTC DS] sometimes agrees with Captain Sandys’ advice and
     sometimes not. So even over a period of three months,
     there have been times when he’s disagreed with the advice
     that Captain Sandys has given him as brigade trial counsel.

1
 LTC Duncan was later the subject of a defense peremptory
challenge, and one of the panel members he supervised was
subject to a Government peremptory challenge.

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United States v. Castillo, No. 14-0457/AR


     . . . With regard to the fact that [LTC DS] may have been
     molested in some way when he was a child, he, again without
     prompting, said there would be no effect here and “it is
     not the same issue at all.” . . . With regard to this
     course at Western Michigan University, he and all the other
     members of the faculty sat through a sexual assault
     prevention course . . . . So the court finds no actual bias
     and finds further that viewed objectively through the eyes
     of the public, an objective observer would not have a
     substantial [doubt] about the fairness of the accused’s
     court-martial panel if [LTC DS] served as a member and I
     have considered the liberal grant mandate.

     The defense also brought challenges against three other

panel members -- Command Sergeant Major (CSM) Felicioni, CSM

Merriwether, and Captain (CPT) Little -- on the basis of their

interaction with trial counsel in his capacity as the brigade

trial counsel.   The military judge denied these challenges,

finding that their interactions amounted to no more than

receiving information regarding cases in the military justice

system.

                             Analysis

     We review implied bias challenges pursuant to a standard

that is less deferential than abuse of discretion, but more

deferential than de novo review.       United States v. Moreno, 63

M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46

M.J. 279, 283 (C.A.A.F. 1997).

     R.C.M. 912(f)(1)(N) sets the basis for an implied bias

challenge, which stems from the:



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United States v. Castillo, No. 14-0457/AR


        “historic concerns about the real and perceived
        potential for command influence” in courts-martial.
        Unlike the test for actual bias, this Court looks to
        an objective standard in determining whether implied
        bias exists. The core of that objective test is the
        consideration of the public’s perception of fairness
        in having a particular member as part of the court-
        martial panel. In reaching a determination of whether
        there is implied bias, namely, a “perception or
        appearance of fairness of the military justice
        system,” the totality of the circumstances should be
        considered. While cast as a question of public
        perception, this test may well reflect how members of
        the armed forces, and indeed the accused, perceive the
        procedural fairness of the trial as well.

Peters, __ M.J. at __ (8) (citations omitted).     Applying these

standards to this case, we conclude that the military judge did

not err in denying Appellant’s challenge for cause on the

following grounds, or based on the cumulative effect of these

grounds.

LTC DS’s Experience as a Sexual Assault Victim

        There is no per se rule that a panel member must be excused

because he or she has been the victim of a similar crime.     See

United States v. Smart, 21 M.J. 15, 19 (C.M.A. 1985) (“The

[crimes] of which [the member] had been a victim did not of

themselves disqualify him to participate in trying appellant.”).

A panel member’s experience as a victim similar in theme or

close in time to the charged offense may, in some cases, present

an issue of implied bias.     United States v. Daulton, 45 M.J.

212, 217 (C.A.A.F. 1996).    No such relationship exists in this

case.    Moreover, the military judge found LTC DS’s statement


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that he did not view his experience as a victim as “the same

issue at all” to be credible, and concluded, “based on observing

his demeanor . . . that the incident will not affect [LTC DS’s]

deliberations in this case.”    These statements are not

dispositive.    However, the statements in tone and content as

well as the absence of a presumptive rule of disqualification

supports the military judge’s decision.    Thus, the military

judge did not err in denying the challenge for cause.

LTC DS’s Relationship with Trial Counsel

     [I]n military practice, the qualitative nature of the
     relationships between trial attorneys and officers in
     the commands those attorneys advise will cover a wide
     range of experiences. Some officers . . . will
     establish a close personal and professional bond [with
     the attorneys, or] the contact may be singular or
     passing; formal and professional, but not indicative
     of special deference or bonding.

     United States v. Richardson, 61 M.J. 113, 119 (C.A.A.F.

2005).   Here, in contrast to Peters, __ M.J. at __ (3), there is

no evidence of a personal bond or a particularly deferential

professional bond.    Further, LTC DS had only been in his

position ninety days, a fact that weighs against a finding of

implied bias.    The military judge did not err.

LTC DS’s Rating of Two Panel Members

     “It is well settled that a senior-subordinate/rating

relationship does not per se require disqualification of a panel

member.”   United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F.



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United States v. Castillo, No. 14-0457/AR


2001) (citations omitted).   LTC DS’s rating of CPT Little and

CSM Merriwether did not require the military judge to excuse LTC

DS in the context of this case, given the broader composition of

the panel.   Further, the military judge concluded that all three

panel members “credibly disclaimed that they would feel any

restraint or discomfort in freely expressing their views during

deliberations if they all three remained on the panel.”

Other Members’ Favorable Impressions of Trial Counsel

     Apart from LTC DS, CSM Felicioni, CSM Merriwether, and CPT

Little received information from trial counsel regarding

military justice matters, and CSM Felicioni once played cards

with trial counsel.   These facts do not constitute a claim of

close personal or deferential professional bonding under

Richardson, 61 M.J. at 119, and the military judge did not err.

The Panel Was Drawn Entirely from Appellant’s Brigade and
Cumulative Error

     Appellant did not raise the issue of panel members being

drawn exclusively from his brigade at trial, and as a result,

this issue is waived as a discrete ground for challenge.      Rule

for Courts-Martial 912(f)(2)(4).       Nonetheless, Appellant asserts

this issue along with the other asserted grounds for a finding

of implied bias in their cumulative effect.

     “It is well-established that an appellate court can order a

rehearing based on the accumulation of errors not reversible



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United States v. Castillo, No. 14-0457/AR


individually.”     United States v. Dollente, 45 M.J. 234, 242

(C.A.A.F. 1996).    Appellant cites no authority indicating that a

panel drawn entirely from one brigade, including this brigade in

Korea, is an unusual or unlawful practice in the military

justice system.    As a result, Appellant’s asserted errors lack

merit, and they do not combine to create error.

                              Conclusion

     The military judge did not err in denying Appellant’s

challenges for cause.    Accordingly, the decision of the United

States Army Court of Criminal Appeals is affirmed.




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United States v. Castillo, No. 14-0457/AR


     STUCKY, Judge (concurring):

     I join the majority’s opinion with one reservation.    The

majority opinion quotes United States v. Peters, __ M.J. __ (8)

(C.A.A.F. 2015), to say:   “While cast as a question of public

perception, this [implied bias] test may well reflect how

members of the armed forces, and indeed the accused, perceive

the procedural fairness of the trial as well.”   United States v.

Castillo, __ M.J. __ (7) (C.A.A.F. 2015).   This sentence appears

to expand the ambit of the “public perception” test contrary to

our case law:   The accused’s perception of the fairness of his

trial has never been part of the implied bias test.   I write

separately solely to clarify that the test for implied bias is a

question of public perception only.
United States v. Castillo, 14-0457/AR


       RYAN, Judge (concurring in the result):

       We have long held that a military judge is entitled to

deference on issues of implied bias under Rule for Courts-

Martial 912(f)(1)(N), if less deference than on issues of actual

bias.    United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F.

1997).    I stand by this Court’s guidance in United States v.

Clay, 64 M.J. 274 (C.A.A.F. 2007):    “[W]here a military judge

considers a challenge based on implied bias, recognizes his duty

to liberally grant defense challenges, and places his reasoning

on the record, instances in which the military judge’s exercise

of discretion will be reversed will indeed be rare.”    Id. at

277.

       It is my view that, where the correct law is recognized and

there is no erroneous application of the law or view of the

facts, military judges should receive the deference to which

they are entitled under our precedent on matters of implied

bias.    This Court is better suited to remind military judges

that challenges are to be liberally granted -- and, relatedly,

that excusing a member on the basis of implied bias is not a

condemnation of any particular member’s sincerity, integrity, or

fitness -- than to review on a case-by-case basis how much

qualitative and quantitative contact between a convening

authority and a trial counsel who serves as the legal counsel
United States v. Castillo, 14-0457/AR


for that convening authority a member of the public would view

as unfair.

     This Court has repeatedly eschewed a bright-line rule

requiring military judges to grant challenges for cause on the

basis of implied bias against members who have or have had a

professional relationship with legal counsel.   See United States

v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998) (holding a member’s

“professional relationship with the trial counsel was not per se

disqualifying”); United States v. Hamilton, 41 M.J. 22, 25

(C.M.A. 1994) (finding no “per se ground for challenge” where

three members had received legal assistance from the assistant

trial counsel); see also United States v. Peters, __ M.J. __, __

(1-2) (C.A.A.F. 2015) (Ryan, J., dissenting).   However

reasonable I might find such a bright-line rule in the case of

an implied bias challenge against a commanding officer sitting

as a panel member, even as her legal advisor served as trial

counsel, if presented with it as a matter of first impression, I

agree that the military judge should receive deference.   I

respectfully concur in the result.




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