United States v. Castillo

74 M.J. 39, 2015 CAAF LEXIS 142, 2015 WL 591751
CourtCourt of Appeals for the Armed Forces
DecidedFebruary 12, 2015
Docket14-0457/AR
StatusPublished
Cited by9 cases

This text of 74 M.J. 39 (United States v. Castillo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Castillo, 74 M.J. 39, 2015 CAAF LEXIS 142, 2015 WL 591751 (Ark. 2015).

Opinions

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, 74 M.J. 31 (C.A.A.F.2015), the panel members’ relationships with trial counsel in this case were not of a qualitative nature to rise above the normative sorts of relationships expected in military service that could impact perceptions of fairness.

[41]*41 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.
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 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 advisory 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 ease 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 [42]*42have been times when he’s disagreed with the advice that Captain Sandys has given him as brigade trial counsel.... 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) Felieioni, CSM Merriwether, and Captain (OPT) 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 eases 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)(l)(N) sets the basis for an implied bias challenge, which stems from the:

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United States v. Akbar
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United States v. Oakley
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United States v. Peters
74 M.J. 31 (Court of Appeals for the Armed Forces, 2015)
United States v. Castillo
74 M.J. 39 (Court of Appeals for the Armed Forces, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
74 M.J. 39, 2015 CAAF LEXIS 142, 2015 WL 591751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-castillo-armfor-2015.