United States v. Castellano ( 2014 )


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  •               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
    ---------------------------------------------------
    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
    9
    

Document Info

Docket Number: 201100248

Filed Date: 12/11/2014

Precedential Status: Precedential

Modified Date: 12/18/2014