United States v. Salyer

UNITED STATES, Appellee
v.
Joseph B. SALYER, Corporal
U.S. Marine Corps, Appellant
No. 13-0186
Crim. App. No. 201200145
United States Court of Appeals for the Armed Forces
Argued April 2, 2013
Decided August 2, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and STUCKY, JJ., joined. RYAN, J., filed a separate
dissenting opinion, in which COX, S.J., joined.
Counsel
For Appellant: Lieutenant David C. Dziengowski, JAGC, USN
(argued); Captain Paul C. LeBlanc, JAGC, USN, and Major Jeffrey
R. Liebenguth, USMC (on brief).
For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief).
Amicus Curiae on Behalf of the National Institute of Military
Justice: Philip D. Cave, Esq., Kevin J. Hejmanowski, Esq., and
Christopher Mathews, Esq. (on brief).
Military Judges: M. D. Mori, J. R. Redford, and Michael B.
Richardson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Salyer, No. 13-0186/MC
Chief Judge BAKER delivered the opinion of the Court.
After the original military judge in the case recused
himself, a general court-martial composed of officer and
enlisted members convicted Appellant, contrary to his pleas, of
wrongful possession of child pornography in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2006). The adjudged and approved sentence included confinement
for two years, forfeiture of all pay and allowances, reduction
to pay grade E-1, and a bad-conduct discharge. The United
States Navy-Marine Corps Court of Criminal Appeals (CCA)
affirmed. United States v. Salyer, No. NMCCA 201200145, 2012
CCA LEXIS 407, at *20, 2012 WL 5208620, at *8 (N-M. Ct. Crim.
App. Oct. 23, 2012) (unpublished). The granted issue poses the
questions: Did the Government’s actions cause the recusal of
the original military judge and did such actions amount to
unlawful influence? If so, what remedy is warranted? 1
1
The granted issue is:
UNDER UNITED STATES v. LEWIS, 63 M.J. 405 (C.A.A.F.
2006), A CASE IS DISMISSED WITH PREJUDICE WHEN
UNLAWFUL COMMAND INFLUENCE RESULTS IN THE RECUSAL OF A
MILITARY JUDGE. HERE, THE MILITARY JUDGE RECUSED
HIMSELF BECAUSE HE FOUND THAT THE GOVERNMENT’S ACTIONS
MADE IT IMPOSSIBLE FOR HIM TO REMAIN ON THE CASE. THE
GOVERNMENT COMPLAINED TO HIS SUPERVISOR ABOUT A
RULING, ACCESSED HIS SERVICE RECORD WITHOUT
PERMISSION, AND WITH THIS INFORMATION, MOVED FOR HIS
RECUSAL. SHOULD THIS CASE BE DISMISSED WITH
PREJUDICE?
2
United States v. Salyer, No. 13-0186/MC
We hold that the Government’s conduct raised some evidence
of an appearance of unlawful influence. We further hold that
the Government has not demonstrated beyond a reasonable doubt
that the appearance of unlawful influence did not affect the
findings or the sentence, and that dismissal of the charges with
prejudice is appropriate under the circumstances of this case.
BACKGROUND
Appellant was initially charged with one specification of
wrongful distribution of images of child pornography and one
specification of wrongful possession of a laptop computer
containing images of child pornography. See 2012 CCA LEXIS 407,
2012 WL 5208620. Both specifications alleged violations of 18
U.S.C. § 2252A (2006), under Article 134, UCMJ. Similarly, both
specifications alleged conduct “prejudicial to good order and
discipline or of a nature to bring discredit upon the armed
forces.” 2 During an Article 39(a), UCMJ, 3 session on July 29,
2
The specification under the Charge alleged: “In that Corporal
Joseph B. Salyer . . . did . . . knowingly and wrongfully
distribute images of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(A), which conduct was prejudicial to good order
and discipline or of a nature to bring discredit upon the armed
forces.”
The specification under the Additional Charge alleged: “In
that Corporal Joseph B. Salyer . . . did . . . knowingly and
wrongfully possess a laptop computer containing image files of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
which conduct was prejudicial to good order and discipline or of
a nature to bring discredit upon the armed forces.”
3
10 U.S.C. § 839(a) (2006) [hereinafter Article 39(a) session].
3
United States v. Salyer, No. 13-0186/MC
2011, the accused was arraigned, and counsel and the military
judge, Lieutenant Colonel (LtCol) Mori, announced their
qualifications on the record. 4 A discovery and motions schedule
was set and the session was adjourned. Between July 29 and
November 7, two officers made appearances on the record as
detailed trial counsel, Captain (Capt) Schweig, the military
justice officer, and Capt Maya, who eventually acted as detailed
trial counsel for the remainder of the court-martial.
At an Article 39(a) session on November 7, 2011, the
Government moved to amend each specification by removing the
references to 18 U.S.C. § 2252A and the language alleging
conduct to the prejudice of good order and discipline. The
motion was granted and each specification now alleged a
violation of clause 2 of Article 134, UCMJ. In addition, with
respect to the possession specification, trial counsel moved to
strike the reference to the laptop computer. It was apparent
that the computer would be unavailable for trial. Defense
counsel objected to this proposed amendment arguing that the
defense had prepared its case in reliance on the language
referencing the computer. The military judge reserved his
ruling on this issue.
4
Captain Milton was the detailed trial counsel for this session.
4
United States v. Salyer, No. 13-0186/MC
The next relevant Article 39(a) session occurred on
November 14, 2011. The military judge denied the Government’s
motion to strike the specification’s reference to the laptop.
The parties also addressed the potential maximum authorized
punishment in the event the accused was convicted of both
offenses. The military judge indicated that for the purpose of
voir dire, he would inform the members that the maximum
punishment was up to thirty years, but that the issue would be
revisited after the findings were returned.
After this Article 39(a) session adjourned, voir dire was
conducted, challenges were granted and the members were excused.
Afterwards, the military judge and the parties continued
discussion on the record regarding potential rulings, including
the definition of child pornography for an Article 134(2), UCMJ,
offense. The Government argued that the term “minor” should be
defined as a person under the age of eighteen. The defense
argued that “minor” referred to a person under the age of
sixteen. The following colloquy took place:
MJ: I am contemplating what is the age.
TC: Sir, according to the statute --
MJ: The statute is 18, right?
TC: Yes, sir.
MJ: Under the Uniform Code of Military Justice, what is
the age of consent?
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United States v. Salyer, No. 13-0186/MC
TC: Well, sir, if the court is going to go -- this just
refers to everything from the most applicable statute,
child pornography refers to a minor.
MJ: That is right.
TC: [18 U.S.C. § 2256] has all of the definitions that
relate to --
MJ: What is a minor under the Uniform Code of Military
Justice?
DC: Under the age of 16, sir.
The military judge next addressed the apparent inconsistency of
defining a minor as one under the age of eighteen for child
pornography offenses charged under clause 1 or 2 of Article 134,
UCMJ, given the age of consent in the military was sixteen.
MJ: Because our age of consent is 16. A Marine could have
sexual intercourse with a 16 year old lawfully, right,
but if he took a picture of it, that would be a crime.
I don’t know. It may not matter. . . . That may be
more of a case specific argument on why it wouldn’t be
service discrediting. . . .
. . . .
MJ: I am inclined to make the age under the age of 16.
TC: Sir, the government would argue that in this case
because it is closely related to the statute that
rather than picking and choosing from the manual or
the statute, that we just stick with the statute.
MJ: But you didn’t charge him with violating the statute.
TC: Right, sir, but under [United States v. Leonard], you
look to most closely --
MJ: -- to determine the maximum punishment.
TC: Yes, sir.
6
United States v. Salyer, No. 13-0186/MC
This same hearing addressed the admissibility of
Prosecution Exhibit (PE 5) (for identification), a one-page
letter from Time Warner Cable in response to the Government’s
subpoena. The letter states that Appellant’s wife, Danielle
Salyer, was the owner of the Road Runner account and the IP
address linked to the missing computer under which the offending
images at issue had been downloaded. The defense objected on
the ground that PE 5 was testimonial hearsay. Trial counsel
argued the document was admissible as a business record. The
military judge sustained the objection, without comment.
Finally, the session turned to the definition of child
pornography. With the issue still unresolved, the military
judge indicated that he would address the question the following
morning.
The next morning, November 15, 2011, the Government
requested that the military judge reconsider his ruling
excluding PE 5. The military judge reconsidered the ruling, but
after further argument, again sustained the objection to PE 5.
Discussion then turned to a conversation between Appellant and
his wife regarding the laptop referred to in the possession
specification, during which Appellant told his wife, “it broke
and he needed to get a new one.” The defense argued the
statement was covered by the marital privilege. The Government
argued the privilege did not apply because the communication
7
United States v. Salyer, No. 13-0186/MC
took place during an Internet chat session over an unsecured
computer, and because at the time of the communication Appellant
and his wife were contemplating divorce. The Government also
argued in the alternative that if the privilege applied, it was
waived when Appellant later made the same statement to
investigators. The military judge ruled that there was a
confidential communication, but reserved judgment on the issue
of waiver.
After a recess, the court returned to the definition of
child pornography. The military judge handed the parties what
had been marked as an appellate exhibit containing the
definition he intended to use, stating “‘Minor’ means any real
person under the age of sixteen years.” 5 The Government objected
leading to the following colloquy:
TC: Sir, the government would still object to the use of
16. And the government is not sure why the Court is
choosing 16 over 18 which -- if the rest of the
definitions are coming from the statute, why the court
would --
MJ: Because I am -- I am applying the age of consent in
the military.
TC: But the consent in the military isn’t at issue. It is
not being charged that Corporal Salyer was chatting
with any of these.
MJ: This is what I am using. I am using this.
TC: Yes, sir.
5
This document is simply an untitled sheet of paper containing
the military judge’s definitions.
8
United States v. Salyer, No. 13-0186/MC
. . . .
TC: Sir, the government would still argue that it is not a
matter of whether these people -- these victims
consented.
MJ: What is consent? Do I have consented in there?
TC: No, but you discussed the age of consent is 16. You
can’t consent to have your naked photograph taken.
That is not what is at issue in this case.
MJ: Okay. Very well. I have already ruled so stop
arguing about it.
TC: Yes, sir.
MJ: I explained my rationale; right?
TC: Yes, sir.
MJ: It is different because [you] charged it under
[Article] 134, clause 1 or 2.
After the members returned, the military judge provided
preliminary instructions, including the definition of child
pornography, with minor defined as a “real person under the age
of 16.” Trial counsel, Capt Maya, proceeded with her opening
statement, making the following statement to the members
regarding the actions of the investigator in the case:
But at this point all she had was that IP address. She
didn’t know who was behind the IP address so she sent a
subpoena off and she found out that this IP address was
registered to a Danielle Salyer who lived at [address].
Emphasis added. This was an obvious reference to PE 5, which
had been excluded. With apparent frustration, the military
9
United States v. Salyer, No. 13-0186/MC
judge addressed trial counsel outside the presence of the
members:
MJ: Stop, stop, stop. I specifically excluded that piece
of evidence. How are you going to get it in?
TC: Effect on listener, sir. It is the reason -- it is
part of the investigation that is --
MJ: Okay, I am not going to allow that in.
TC: But, it wouldn’t be for the truth of --
MJ: It is not coming in. That is a piece of evidence that
ties the accused.
TC: And the government would be amenable --
MJ: No --
TC: -- to a limiting instruction if we couldn’t get some
sort of --
MJ: Well, it’s either going to be a mistrial if you don’t
get it in somewhere else.
TC: Sir, the --
MJ: Just listen. That is my ruling. We aren’t going to
address that.
TC: Yes, sir.
. . . .
MJ: I’ve considered your argument on the effect on the
listener and I am not allowing it.
After this ruling, the Court recessed. Capt Schweig, the
military justice officer, later testified that he and unnamed
others met and discussed the military judge’s ruling on the
definition of a minor. According to Capt Schweig, Capt Maya
10
United States v. Salyer, No. 13-0186/MC
told him of rumors that “Lieutenant Colonel Mori may have had a
young wife.” This prompted Capt Schweig to access LtCol Mori’s
official personnel record. According to Capt Schweig, this
record indicated that LtCol Mori had been married for ten years
and that his wife “was most likely 17 years old or maybe a
little bit more at the time they were married.” Capt Schweig
further testified that, “The sole basis was an attempt to
determine if there was any possible source of bias inherent in
the judge’s ruling.” According to this same testimony, having
retrieved the information from LtCol Mori’s personnel record,
Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC)
of the base Legal Services Center. They discussed the military
judge’s decision to use age sixteen vice age eighteen to define
a minor for purposes of the charged child pornography offenses.
LtCol Mannle testified that he was “perplexed” by the
military judge’s decision. When Capt Schweig showed him the
information from LtCol Mori’s personnel record, LtCol Mannle
concluded that:
there was a relevant issue for the government that
suggested bias on the part of the judge . . . . It
struck me that this was a vital issue for voir dire,
and, likely, a motion for recusal. And I thought that
there was probably a better than likely chance that
the judge would recuse himself.
LtCol Mannle then decided to call Captain Berger, the
circuit military judge and LtCol Mori’s immediate supervisor.
11
United States v. Salyer, No. 13-0186/MC
According to LtCol Mannle, he “owed the circuit judge a
professional courtesy to let him know that a significant event
was about to happen here.” However, LtCol Mannle later
testified that the call with Captain Berger included discussion
of the ruling on the age issue and the information regarding
LtCol Mori’s wife:
I let him know that I was unsure about why it is the
instruction had been given. And, again, I relayed to him
the information that I had about the date -- or the age at
which Lieutenant Colonel Mori married his spouse -- or her
age at the time of the marriage. I articulated for him in
my heads up what it is, why it is I thought that there was
-- there were grounds for voir dire of the judge.
When the parties returned on the record that afternoon,
Capt Maya requested voir dire of the military judge. Among
other things, she asked the military judge how old his wife was
when they married. The military judge answered that his wife
was seventeen. At this point, Capt Maya offered the excerpt
from the military judge’s official personnel file as an
appellate exhibit for the record. Trial counsel then moved to
disqualify the military judge for actual and implied bias
stating:
TC: Specifically, the reason is because the military judge
instructed the court over a government objection that
the definition of a minor is any individual under the
age of 16. This is in direct conflict with the plain
language of the United States Code Statute that is
most closely analogous under United States v. Leonard.
Consequently, the government questions the military
judge’s impartiality to make rulings on this
instruction.
12
United States v. Salyer, No. 13-0186/MC
MJ: Okay.
TC: And the government also believes that a reasonable
member of the public with knowledge that these facts
and circumstances would also question the impartiality
of the tribunal in this case.
MJ: Okay. Any other basis?
TC: That is it, sir.
The military judge put the court in recess indicating that he
would return with a ruling on the motion.
The following morning, November 16, 2011, the military
judge convened an Article 39(a) session and informed the parties
of a conversation he had with Captain Berger the previous day:
MJ: Okay. So during our lunch recess yesterday . . . I
called Captain Berger to speak to him about an
evidentiary issue in this case that I had yet to rule
on. Captain Berger inquired [of] me what was going on
with some age issue in the case that I was hearing, as
he had heard by Lieutenant Colonel Mannle, the SJA for
Marine Corps Base Hawaii and the OIC of the law center
who had been sitting in during the proceedings for
some of the sessions, that Lieutenant Colonel Mannle
was not happy with my ruling that I was defining a
minor as a person under the age 16. And he indicated
the government was going to seek my recusal based on
my wife being 17 when I married her. So I disclosed
that to both sides.
Trial counsel responded by asking the military judge several
additional questions:
TC: Sir, did the -- the circuit judge express his
displeasure in any of your decisions?
MJ: I would say I interpreted his questioning of me to
raise concern with my performance.
TC: And, sir, an additional voir dire question.
13
United States v. Salyer, No. 13-0186/MC
MJ: Yes.
TC: Previously have you disqualified any of the trial
counsel on any other case?
MJ: Have I ever disqualified a trial counsel?
TC: Yes, sir.
MJ: Not that I recall. I think there was a potential
issue, a potential remedy potentially on one case . .
. but I can’t recall.
TC: United States versus Lauer, sir.
. . . .
TC: All the trial counsel and the military justice
officer.
MJ: Oh, yes, that’s right . . . .
. . . .
TC: But that was something you had done in the past was
disqualify --
MJ: Okay.
TC: And myself, specifically.
MJ: Okay. Any other questions?
The court recessed. Later that afternoon the military
judge convened another Article 39(a) session. He announced that
he was disqualifying himself from the case and attached his
written ruling to the record. The ruling cites LtCol Mannle’s
phone call to Captain Berger and the trial counsel’s reference
to his wife’s age at the time of their marriage. LtCol Mori’s
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United States v. Salyer, No. 13-0186/MC
ruling also addressed the propriety of LtCol Mannle’s call to
Captain Berger:
This court finds that a reasonable person would question
the [impartiality] of the military judge on any decision in
further proceedings in the case under these facts. . . .
These types of questions are reasonable even from a
person[] who knows all the facts. Included in those known
facts are the appropriate means for members of the
prosecution to address disagreements or concerns with a
military judge’s ruling. The appropriate means are to seek
disqualification, if raised, seek reconsideration of a
military judge’s ruling or to file an interlocutory appeal;
having the trial counsel’s supervisor call the military
judge’s supervisor during trial is not contemplated in the
rules for courts-martial. The fact that an inappropriate
method for addressing a disagreement with the military
judge’s ruling was employed during the merits of the court-
martial weighs in favor of a finding[] that a reasonable
person might question the military judge’s impartiality.
LtCol Mori concluded his ruling as follows:
Any ruling made by the [military] judge against or for
either side might reasonably be questioned, “Is the judge
ruling in favor of the prosecution so [as to] avoid any
more complaints to his boss?” or “Is the military judge
ruling in favor of the defense to retaliate against the
prosecution for their improper complaint to the circuit
military judge?”
With respect to the prosecution’s references to his wife, the
military judge continued:
The court finds that this is also a basis for
disqualification under the objective standard; not due to
the fact of the military judge’s wife’s age, but due to the
fact that the prosecution raised an issue involving a
personal family matter of the military judge which was also
raised with the military judge’s supervisor as part of the
complaint. Even though it is almost ten years and three
children later, it is in relation to a personal family
matter which might cause a reasonable person to question
the military judge[’]s [impartiality].
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United States v. Salyer, No. 13-0186/MC
Colonel (Col) Richardson replaced LtCol Mori as military
judge the following morning. At the Government’s request, Col
Richardson addressed a motion to reconsider LtCol Mori’s rulings
on the age of a minor and marital privilege concerning
Appellant’s statement to his wife regarding the missing
computer. On the definition of a minor, Col Richardson ruled
that he was not going to reconsider any of LtCol Mori’s rulings
that could be characterized as “defense friendly.”
Notwithstanding this statement, Col Richardson reconsidered
LtCol Mori’s prior ruling that Appellant’s statement to his wife
regarding the laptop was a confidential communication. After
hearing evidence and arguments, he ruled that while some parts
of the conversation were privileged, the communication regarding
the destruction of the computer was not intended to be
confidential and therefore, was not privileged.
Col Richardson also addressed a defense motion to dismiss
for unlawful command influence. During the hearing on the
motion, Col Richardson heard testimony from LtCol Mannle and
Capt Schweig. After hearing from LtCol Mannle, Col Richardson
excused him stating, “Given the fact that you are now a
percipient witness . . . I’m going to direct that you cannot
come back into the courtroom for the remainder of these
proceedings.” Ultimately, Col Richardson concluded that LtCol
16
United States v. Salyer, No. 13-0186/MC
Mannle’s call to Captain Berger was “well intentioned,” but
nonetheless raised the appearance of unlawful influence. 6
Regarding the intrusion into the military judge’s personnel
record and the subsequent voir dire into LtCol Mori’s wife’s
age, Col Richardson found neither actual nor apparent unlawful
influence regarding trial counsel’s actions. He concluded that
“[t]he MJ’s statistically anomalous personal situation in this
regard, vis-a-vis his sua sponte raising the age issue and then
ruling quickly and curtly in the defense’s favor was a perfectly
valid basis for the Government to voir dire and challenge the
MJ” and, that “the Government was well within [its] rights based
on these facts to inquire into the matter.”
Col Richardson’s remedy for the apparent unlawful influence
he found was his earlier statement that he would not reconsider
any of LtCol Mori’s “defense friendly” rulings. While
considering potential remedies for the finding of apparent
unlawful influence, Col Richardson referred to his earlier
exclusion of LtCol Mannle from the courtroom stating:
I only have several remedies available to me in UCI. I can
dismiss it outright, I cannot allow Lieutenant Colonel
Mannle back into the courtroom -- which we’ve already done
anyway -- or I can ensure that, as a result of what’s
happened here, that the accused is not placed in any worse
6
The replacement military judge, Col Richardson, specifically
found that, “Such a courtesy call is widely accepted practice in
the military, especially when dealing with such a sensitive
topic involving a high ranking officer.”
17
United States v. Salyer, No. 13-0186/MC
position than he possibly could have been had Lieutenant
Colonel Mori continued with this trial.
DISCUSSION
I.
Article 37, UCMJ, 7 states “No person subject to [the UCMJ]
may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial . . . or any member thereof . . .
.” While statutory in form, the prohibition can also raise due
process concerns, where for example unlawful influence
undermines a defendant’s right to a fair trial or the
opportunity to put on a defense.
Allegations of unlawful command influence are reviewed de
novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006);
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999);
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). On
appeal, the accused bears the initial burden of raising unlawful
command influence. Appellant must show: (1) facts, which if
true, constitute unlawful command influence; (2) that the
proceedings were unfair; and (3) that the unlawful command
influence was the cause of the unfairness. United States v.
Richter, 51 M.J. 213, 224 (C.A.A.F. 1999) (quoting Biagase, 50
M.J. at 143, 150 (C.A.A.F. 1999)). Thus, the initial burden of
showing potential unlawful command influence is low, but is more
7
10 U.S.C. § 837 (2006).
18
United States v. Salyer, No. 13-0186/MC
than mere allegation or speculation. United States v. Stoneman,
57 M.J. 35, 41 (C.A.A.F. 2002). The quantum of evidence
required to raise unlawful command influence is “some evidence.”
Stoneman, 57 M.J. at 41 (quoting Biagase, 50 M.J. at 150)
(internal quotation marks omitted).
Once an issue of unlawful command influence is raised by
some evidence, the burden shifts to the government to rebut an
allegation of unlawful command influence by persuading the Court
beyond a reasonable doubt that (1) the predicate facts do not
exist; (2) the facts do not constitute unlawful command
influence; or (3) the unlawful command influence did not affect
the findings or sentence. Biagase, 50 M.J. at 151.
Allegations of unlawful command influence are reviewed for
actual unlawful command influence as well the appearance of
unlawful command influence. “Even if there was no actual
unlawful command influence, there may be a question whether the
influence of command placed an ‘intolerable strain on public
perception of the military justice system.’” United States v.
Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006) (citation and internal
quotation marks omitted); Stoneman, 57 M.J. at 42-43 (quoting
United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)). The
test for the appearance of unlawful influence is objective. “We
focus upon the perception of fairness in the military justice
system as viewed through the eyes of a reasonable member of the
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United States v. Salyer, No. 13-0186/MC
public.” Lewis, 63 M.J. at 415. An appearance of unlawful
command influence arises “where an objective, disinterested
observer, fully informed of all the facts and circumstances,
would harbor a significant doubt about the fairness of the
proceeding.” Id.
In this case, the CCA upheld Col Richardson’s conclusion
that the call to Captain Berger raised the appearance of
unlawful influence, but not actual unlawful influence. Salyer,
2012 CCA LEXIS 407, at *15, 2012 WL 5208620, at *6
(unpublished). The CCA further concluded, as Col Richardson
did, that the voir dire of LtCol Mori raised neither actual
unlawful influence nor an appearance of unlawful influence.
2012 CCA LEXIS 407, at *18, 2012 WL 5208620, at *7. The CCA
specifically concluded that there was “a good faith basis to
inquire into the military judge’s personal life.” 2012 CCA
LEXIS 407, at *16, 2012 WL 5208620, at *6. Here, the fact is
undisputed that, in the words of the CCA, “LtCol MDM did marry a
17-year-old woman. The Government had verified this fact before
commencing its voir dire into how that fact might have
influenced LtCol MDM’s pretrial ruling on the definition of a
minor.” 2012 CCA LEXIS 407, at *16, 2012 WL 5208620, at *6.
Reviewing the case de novo, we disagree with the lower
court’s analysis, reasoning, and conclusion regarding the
appearance of unlawful command influence.
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United States v. Salyer, No. 13-0186/MC
II.
Our review of unlawful influence in a given case is not
limited to actual influence. Lewis, 63 M.J. at 415. This Court
is concerned not only with eliminating actual unlawful
influence, but also with “eliminating even the appearance of
unlawful command influence at courts-martial.” United States v.
Rosser, 6 M.J. 267, 271 (C.M.A. 1979). 8 Our analysis begins by
again taking notice, as we did in Lewis, that military judges in
the Navy and Marine Corps trial judiciary are selected by the
Judge Advocate General of the Navy:
Authority to detail military judges has been delegated to
service secretaries. Article 26(a), UCMJ, 10 U.S.C.
§ 826(a) (2000). The Secretary of the Navy has further
delegated that authority to the Judge Advocate General who
has prescribed that military judges will be detailed by and
from a standing judiciary. See Dep’t of the Navy, Judge
Advocate General Instr. 5800.7D, Manual of the Judge
Advocate General (JAGMAN) para. 0130a.(1) (Mar. 15, 2004);
Dep’t of the Navy, Judge Advocate General Instr. 5813.4G,
Navy-Marine Corps Trial Judiciary para. 6 (Feb. 10, 2006).
In addition, military judges of general courts-martial are
“designated by” and “directly responsible to” the Judge
Advocate General of the service.
8
As a threshold matter, we reject the Government’s argument that
the law of the case doctrine limits our review to simply whether
Col Richardson took sufficient steps to cure the apparent
unlawful command influence from the OIC’s phone call. Brief for
Appellee at 13, United States v. Salyer, No. 13-0186 (C.A.A.F.
Mar. 21, 2013). In our view, the granted issue covers all of
the Government’s conduct surrounding the phone call and the
motion to recuse, including the retrieval of the military
judge’s personal information and the subsequent voir dire.
Furthermore, Appellant’s position at trial and in the lower
court included the complete range of conduct and issues leading
to the recusal of the original military judge.
21
United States v. Salyer, No. 13-0186/MC
Lewis, 63 M.J. at 413-14.
The Judge Advocate General’s (JAG) regulations indicate
that the selection and certification of a military judge is
based on “governing criteria.” Dep’t of the Navy, Judge
Advocate General Instr. 5813.4I, Navy-Marine Corps Trial
Judiciary para. 5.b.(1) (Sept. 9, 2011) [hereinafter JAGINST
5813.4I]. 9 In appointing a military judge, the JAG acknowledges
that the individual meets these criteria and is fit for office.
Individual military trial judges in the Marine Corps
subsequently report to circuit trial judges who evaluate their
performance and assign their cases. Id. at para. 4.d. Military
judges do not serve terms of office, but rather, generally serve
unless or until an appropriate reason for reassignment arises.
Id. at paras. 5.a., 5.b. As a result:
Neither the government nor the defense at a court-martial
is vested with the power to designate, detail, or select
the military judge. Conversely, neither party can usurp
the authority of the service secretaries or Judge Advocates
General by removing or unseating properly certified and
detailed military judges.
Lewis, 63 M.J. at 414.
We also note again, as we did in Lewis, that a military
judge “shall perform the duties of judicial office impartially
and fairly.” Id. (citation and internal quotation marks
9
Navy and Marine Corps judicial nominees are recommended for
appointment by the Judicial Screening Board. JAGINST 5813.4I,
at para. 5.b.(1).
22
United States v. Salyer, No. 13-0186/MC
omitted). Toward this end, a military judge, like other judges,
is required to affirmatively recuse himself, sua sponte, from a
case where there is a ground for disqualification. Rule for
Courts-Martial (R.C.M.) 902(b). Both parties to the trial are
also “permitted to question the military judge and to present
evidence regarding a possible ground for disqualification.”
R.C.M. 902(d)(2). 10 This rule lists possible grounds for
10
Possible grounds for disqualification include:
(1) Where the military judge has a personal bias or
prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceeding.
(2) Where the military judge has acted as counsel,
investigating officer, legal officer, staff judge
advocate, or convening authority as to any offense
charged or in the same case generally.
(3) Where the military judge has been or will be a witness
in the same case, is the accuser, has forwarded
charges in the case with a personal recommendation as
to disposition, or, except in the performance of
duties as a military judge in a previous trial of the
same or related case, has expressed an opinion
concerning the guilt or innocence of the accused.
(4) Where the military judge is not eligible to act
because the military judge is not qualified under
R.C.M. 502(c) or not detailed under R.C.M. 503(b).
(5) Where the military judge, the military judge’s
spouse[:]
(A) Is a party to the proceeding;
(B) Is known by the military judge to have an
interest, financial or otherwise, that could be
substantially affected by the outcome of the
proceeding; or
23
United States v. Salyer, No. 13-0186/MC
disqualification including “personal bias” on the part of a
military judge. However, where there is evidence in the record
of an effort to unseat a military judge based on the trial
counsel’s animosity toward the military judge, to secure a more
favorable ruling, or to cause the assignment of an alternative
military judge, where the presiding military judge is otherwise
qualified to serve, an appearance of unlawful command influence
is raised. See Lewis, 63 M.J. at 414.
Six facts of record considered together raise some evidence
of the appearance of unlawful influence in this case. First,
the military judge made a number of rulings adverse to the
Government as set out earlier in this opinion. One of these
rulings dealt with the age definition of a minor for the purpose
of defining child pornography charged under Article 134(2),
UCMJ. The Government chose to charge the allegations as
military offenses under Article 134, clause 2, UCMJ, by removing
specific references to Title 18. Moreover, the original
specifications in this case do not allege any specific number of
images possessed or distributed. Thus, at most, the prosecution
was required to prove possession and distribution of at least
two images relevant to each specification. Prosecution Exhibit
(C) Is to the military judge’s knowledge likely to be
a material witness in the proceeding.
R.C.M. 902(b).
24
United States v. Salyer, No. 13-0186/MC
1 (PE 1) is a compact disc containing forty-three images.
Prosecution Exhibit 2 (PE 2) appears to be twenty or so printed
images, presumably representative of the forty-three images on
PE 1. Although it might be reasonably debated whether some of
the subjects in the images contained in PE 2 are under the age
of eighteen, eight to ten of these images depict subjects who
are clearly under sixteen, and some appear to be under the age
of ten. Thus, the military judge’s ruling that a minor would be
defined as a person under the age of sixteen does not itself
appear so critical as to explain the Government’s extraordinary
efforts to seek recusal.
Second, in response to what is described by the Government
and the CCA as a rumor conveyed by trial counsel, the military
justice officer obtained access to the military judge’s official
personnel file to determine the age of the military judge’s wife
at the time she married the military judge. This marriage
occurred ten years prior to Appellant’s trial. Trial counsel
made no logical nexus between the wife’s age at marriage and the
ruling regarding the age of a minor. Further, there is a
considerable difference between marrying a seventeen-year-old,
an act sanctioned by law, and possession of child pornography.
The CCA found that the convening authority and his staff judge
advocate were not aware of, and thus, did not direct, the
actions in this case. 2012 CCA LEXIS 407, at *15-*16, 2012 WL
25United States v. Salyer, No. 13-0186/MC
5208620, at *6. Albeit not members of the convening authority’s
command, the OIC of the law center and the trial counsel were,
however, representatives of the Government.
Third, the OIC telephoned the circuit trial judge to alert
him that the Government would seek disqualification of the
military judge in Appellant’s court-martial. This call was
characterized by Col Richardson as a well-intended courtesy
call. 11 However, in the course of this conversation the OIC also
conveyed his dissatisfaction with the military judge’s ruling on
the age issue, and this call occurred during an ongoing court-
martial. The circuit trial judge was the judicial supervisor of
the military judge hearing Appellant’s case at the time the call
was made.
Fourth, trial counsel used the personal information from
the military judge’s official personnel file in support of a
motion to disqualify the military judge on the ground of actual
and implied bias.
Fifth, in the course of arguing this motion, trial counsel
asked the military judge whether he had ever disqualified any
trial counsel in any case. The military judge answered, “Not
that I recall.” Trial counsel then raised a specific court-
11
Whether this conclusion is most appropriately cast as a
finding of fact or a conclusion ultimately does not matter.
Accepting the accuracy of the conclusion, the fact remains that
the OIC made the call during an ongoing court-martial and took
issue with the military judge’s ruling in the process.
26
United States v. Salyer, No. 13-0186/MC
martial unrelated to Appellant’s in which the sitting military
judge had disqualified the same trial counsel appearing in this
case.
Sixth, the military judge removed himself from the case for
two reasons. First, the military judge found that a reasonable
person would question his impartiality because of the OIC’s call
complaining to the military judge’s reporting senior. Second,
the military judge also found that a basis for disqualification
arose “due to the fact that the prosecution raised an issue
involving a personal family matter . . . which was also raised
with the military judge’s supervisor as part of the complaint.”
The analysis of the lower court fails to address two
essential points. First, while the Government, like the
defense, is “permitted to question the military judge . . .
regarding a possible ground for disqualification,” it is the
manner in which and the means by which the Government went about
doing so that raises the appearance of unlawful command
influence, not the fact of inquiry. R.C.M. 902(d)(2). The
normative method for addressing potential issues of
disqualification is voir dire. R.C.M. 902 provides the
substantive framework and R.C.M. 802 provides a procedural
vehicle. Accessing a military judge’s official personnel file
to verify rumors regarding his family is not a normative method
for testing and validating the impartiality of a military judge;
27
United States v. Salyer, No. 13-0186/MC
it is not sanctioned by the UCMJ. Thus, even if one assumes and
accepts the replacement military judge’s finding of good faith
for inquiring into the first military judge’s background, a
good-faith basis of inquiry under R.C.M. 902 does not create a
correlating good-faith basis to access a military judge’s
official personnel file without his consent in search of
personal matters with which to question and challenge the
military judge. Such access, were it condoned by appellate
courts, would strike at the heart and soul of an independent
military judiciary.
Second, the normative method for challenging a military
judge’s legal ruling is to seek an appeal of that ruling. This
might be done on an interlocutory basis, and generally the
appeal will be given precedence by the CCA and by this Court.
See generally Article 62(b), UCMJ, 10 U.S.C. § 862(b) (2006). 12
The normative method for addressing a military judge’s
substantive ruling is not to seek a military judge’s
disqualification and get a new ruling from a replacement
military judge. And, it is not to have the Government
communicate in an ex parte manner with the military judge’s
judicial supervisor and express displeasure with the ruling.
12
However, we make no judgments as to whether such an appeal
would have satisfied the requirements of Article 62(b), UCMJ, or
as to the potential success or failure of such an appeal in this
case.
28
United States v. Salyer, No. 13-0186/MC
The appearance of unlawful influence is raised because the
Government used its custody of the military judge’s official
personnel file to search that personnel file to find personal
family information for the purpose of challenging the military
judge for bias. Further, the Government expressed its
displeasure with the military judge’s rulings not only on the
record but in an ex parte manner to the trial judge’s judicial
supervisor during the pendency of the court-martial and while
the military judge was still presiding. Trial counsel stated
that these actions were taken in response to the military
judge’s ruling on the age of a minor for an Article 134, UCMJ,
child pornography charge. However, this issue was not central
to the Appellant’s case as there appears to have been ample
evidence for the prosecution to proceed regarding the images at
issue and the Government did not attempt to appeal the ruling on
an interlocutory basis. More importantly, the Government at
trial and on appeal failed to indicate how and why the military
judge’s lawful marriage ten years earlier was relevant to the
substantive validity of his ruling on the age issue. 13
13
Regarding LtCol Mori’s marriage, the replacement military
judge stated on the record that, “I don’t know that marrying a
17-year-old woman could affect somebody’s career in any way,
shape, or form. And I don’t believe that that is a proper
consideration. It was a legal marriage.” Furthermore, the
issue of the age of a minor for the purpose of defining child
pornography under clauses 1 or 2 of Article 134, UCMJ, is an
open legal question that has yet to be resolved by this Court.
29
United States v. Salyer, No. 13-0186/MC
Thus, there is the appearance in this record that the
Government sought, through inappropriate means, disqualification
of the military judge because it did not agree with the military
judge’s ruling. An objective, disinterested observer, fully
informed of these facts and circumstances, might well be left
with the impression that the prosecution in a military trial has
the power to manipulate which military judge presides in a given
case depending on whether the military judge is viewed as
favorable or unfavorable to the prosecution’s cause based on the
Government’s access to a military judge’s personnel file and
through access to the military judge’s chain of command. This,
in our view, would foster the “intolerable strain on public
perception” of the military justice system which the
proscription against unlawful command influence and this Court
guard against.
III.
Having found an appearance of unlawful command influence,
we now test for prejudice. This question hinges in part on
whether the remedial measures taken by the replacement military
judge were sufficient to cleanse Appellant’s trial of any effect
from the Government’s conduct in the course of causing the
disqualification of the original trial judge. 14 However the
14
As noted earlier, the Government’s position in this Court is
that the granted issue limits our consideration to the finding
30
United States v. Salyer, No. 13-0186/MC
ultimate question is whether the Government has convinced us
beyond a reasonable doubt that “the disinterested public would
now believe that [Appellant] received a trial free from the
effects of unlawful command influence.” Lewis, 63 M.J. at 415.
Col Richardson indicated he would let stand any prior
rulings characterized as “defense friendly.” Although it is
unclear whether Col Richardson also considered his exclusion of
LtCol Mannle as part of the remedy for the finding of apparent
unlawful influence, Appellant, nonetheless, argues that Col
Richardson could have done more by excluding LtCol Mannle and
trial counsel from any further participation in Appellant’s
court-martial.
A sometime problem with an effects-based prejudice test is
that one cannot ultimately know what would have happened
differently had the original military judge remained on the
case. All change has some effect. What we do know is the first
military judge left open his ruling on the marital privilege
issue. He found the privilege applied, but he had not yet ruled
on the waiver issue.
We are not convinced beyond a reasonable doubt that the
Government has met its burden of demonstrating this case
by Col Richardson and the court below that LtCol Mannle’s call
to Captain Berger raised the appearance of unlawful influence.
The Government concedes that such an appearance is raised and
argues only that this appearance of unlawful influence had no
prejudicial impact on the court-martial.
31
United States v. Salyer, No. 13-0186/MC
proceeded free from the appearance of unlawful influence.
Assuming for the sake of argument that the exclusion of LtCol
Mannle from the courtroom can be considered part of Col
Richardson’s remedial effort, it had uncertain effect since the
trial counsel, over whom LtCol Mannle continued to exercise
supervisory authority, remained on the case. Neither is it
clear whether LtCol Mannle, who was now a witness in the case,
was barred from participating further in the proceedings from
outside the courtroom. The CCA appears to have found that he
was barred “from any further participation in the proceedings.”
2012 CCA LEXIS 407, at *19, 2012 WL 5208620, at *7. However,
the military judge never stated that he was precluded from
participating outside the courtroom -- only that he was barred
from the courtroom. Here, the burden is important; we do not
know whether LtCol Mannle played any further role in advising on
the case, which is a consideration the Government, under
Biagase, carried the burden to address on appeal.
Secondly, Col Richardson’s ruling on the marital privilege
issue was at best inconsistent with his earlier decision to not
reconsider any previous “defense friendly” rulings made by the
original military judge. Unlike the first military judge, the
replacement military judge found that the marital privilege did
not apply to the communications in question. We cannot know how
the first military judge would ultimately have ruled, but we do
32
United States v. Salyer, No. 13-0186/MC
know that the replacement military judge ruled against Appellant
on this issue.
As a result, an objective member of the public would be
left with the appearance and the impression that the Government
obtained advantage from its actions -- a new military judge and
a more favorable ruling on privilege. Moreover, the same
persons who had accessed the military judge’s official file and
made ex parte contact with the first military judge’s supervisor
were not barred from further participation in the case. Based
on these facts the Government has not met its burden beyond a
reasonable doubt of demonstrating that the appearance of
unlawful influence was fully ameliorated in this case.
IV.
We turn now to the question of remedy. Appellant cites
Lewis in arguing for dismissal with prejudice. The Government
argues, as the CCA concluded, that dismissal with prejudice
would be too harsh a remedy.
As in Lewis, the unprofessional actions of the Government
improperly succeeded in getting the military judge to recuse
himself from Appellant’s court martial. 63 M.J. at 412.
Whether the Government’s primary motive was to remove a properly
detailed military judge from the case through inappropriate
means or not, it had that effect. Were we to authorize a
rehearing, the Government would obtain the result it sought to
33
United States v. Salyer, No. 13-0186/MC
obtain through inappropriate means -- a trial with a different
military judge. Thus, any remedy short of dismissal at this
stage would effectively validate the Government’s actions. In
addition, a rehearing as a remedy would occur over two-and-a-
half years after Appellant’s original court-martial. Appellant
had a right to a timely trial before a military judge who had
been properly detailed to hear the case. Through no fault of
his own, Appellant was denied this right as a result of the
Government’s inappropriate actions causing the disqualification
of a military judge. 15 Finally, the actions at issue strike at
the heart of what it means to have an independent military
judiciary and indeed a credible military justice system.
Consequently, on the specific facts of this case, setting aside
the finding and sentence to allow a retrial would leave
Appellant where the appellant in Lewis found himself, “from an
objective standpoint, the Government has accomplished its
desired end and suffered no detriment or sanction for its
actions.” Id. at 416.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The finding of guilty and the
15
We do not suggest that Appellant had a right to this or any
other individual military judge, but he did have a right to have
the military judge detailed to the case be free from
inappropriate attempts to remove him.
34
United States v. Salyer, No. 13-0186/MC
sentence are dismissed with prejudice. The record of trial is
returned to the Judge Advocate General of the Navy.
35
United States v. Salyer, No. 13-0186/MC
RYAN, Judge, with whom COX, Senior Judge, joins
(dissenting):
I agree with the majority that whether the command has
unlawfully influenced a court-martial is a question of law that
we review de novo. See United States v. Salyer, __ M.J. __ (18)
(C.A.A.F. 2013). I dissent, however, for two reasons.
First, the facts that inform this legal question “are
reviewed under a clearly erroneous standard.” United States v.
Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999). And where a military
judge makes “detailed findings of fact[] and these findings are
clearly supported by the record,” we adopt them into our de novo
analysis. Id. Nonetheless, the majority effectively ignores
the military judge’s findings of fact and suggests, without
explicitly holding, that the Government’s actions in this case
amounted to an unlawful effort to unseat a military judge. See
Salyer, __ M.J. at __ (24-30).
Second, because there is no showing that Appellant actually
received an unfair trial, the majority must rely on the doctrine
of apparent unlawful command influence to reach its remedy of
choice in this case -- dismissal with prejudice. This is highly
problematic. “We grant a military judge broad discretion in
crafting a remedy to remove the taint of unlawful command
influence, and we will not reverse ‘so long as the decision
remains within that range.’” United States v. Douglas, 68 M.J.
United States v. Salyer, No. 13-0186/MC
349, 354 (C.A.A.F. 2010) (quoting United States v. Gore, 60 M.J.
178, 187 (C.A.A.F. 2004)). Furthermore, “[w]e have looked with
favor on military judges taking proactive, curative steps to
remove the taint of unlawful command influence,” and noted that
dismissal is a remedy of “last resort.” Id. at 354. This Court
has repeatedly emphasized that dismissal “is a drastic remedy
and courts must look to see whether alternative remedies are
available.” Gore, 60 M.J. at 187.
Contrary to this well-established precept of law, the
majority discounts the curative steps undertaken by Colonel
(Col) Richardson, the replacement military judge, and dismisses
this case with prejudice. But prescribing such a drastic remedy
amounts to an unwarranted windfall where, due to the curative
measures undertaken by Col Richardson, Appellant cannot show
that the Government’s actions caused him to receive an unfair
trial or that “a reasonable observer would have significant
doubt about the fairness of [his] court-martial.” United States
v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). The mere fact that
the Government’s conduct had the “effect” of leading the initial
military judge to recuse himself, without more, should not
compel us to dismiss the charges with prejudice. But see
Salyer, __ M.J. at __ (33-34).
Here, Col Richardson decided, after hearing testimony from
multiple witnesses and the parties’ arguments, to remedy the
2
United States v. Salyer, No. 13-0186/MC
appearance of unlawful command influence by corrective action
other than dismissal -- a decision based on detailed findings of
fact that were supported by evidence in the record. Because
“there was no abuse of discretion in the type of corrective
action decided upon by [Col Richardson],” Douglas, 68 M.J. at
354, and, indeed, the corrective action removed the taint of
apparent unlawful command influence from Appellant’s court-
martial, id., I would affirm the decision of the United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA). To hold
otherwise fails to accord proper deference to Col Richardson’s
factual determinations and implies that a defendant is entitled
to a particular military judge, 1 such that there can be no cure
-- save for dismissing the charges with prejudice -- when a
military judge recuses himself during a proceeding. That
neither is nor should be the law.
1
No one disagrees that “Appellant had a right to a timely trial
before a military judge who had been properly detailed to hear
the case,” see Salyer, __ M.J. at __ (34), but this does not
include the right to a particular military judge, and it is
altogether unclear how Col Richardson somehow failed, under the
circumstances of this case and in the eyes of an objective,
reasonable, and fully informed member of the public, to protect
Appellant’s rights to a fair trial or how the Government gained
an advantage from him serving as the replacement military judge.
Likewise, if the right at issue is characterized as Appellant’s
“right to have the military judge detailed to the case be free
from inappropriate attempts to remove him,” id. at __ (34 n.15),
to conclude that this right was violated, once more, requires
one to ignore the contrary findings of the military judge who
presided at the unlawful command influence motion hearing.
3
United States v. Salyer, No. 13-0186/MC
A.
The events that gave rise to Appellant’s allegation of
unlawful command influence are as follows: (1) after Lieutenant
Colonel (LtCol) Mori ruled that a “minor” was defined as a child
under the age of sixteen, instead of under the age of eighteen
as defined in the federal child pornography statute, the
Government looked at LtCol Mori’s personnel file to confirm a
rumor that LtCol Mori had a “very young wife”; (2) the Officer-
in-Charge (OIC) made a phone call to the Circuit Military Judge
of the Western Pacific Judicial Circuit (CMJ), who was LtCol
Mori’s immediate supervisor, informing him that the Government
was planning to voir dire LtCol Mori on this personal matter and
move for his disqualification; (3) when LtCol Mori called the
CMJ to speak with him about an unrelated evidentiary matter, the
CMJ informed him of the OIC’s phone call; and (4) the Government
voir dired LtCol Mori on the age of his wife and moved for his
disqualification.
Ultimately, LtCol Mori recused himself and was replaced by
Col Richardson. The defense filed a motion to dismiss for
unlawful command influence and a hearing was held. At the
hearing several witnesses testified as to the events that formed
the basis of the alleged unlawful command influence. The
military justice officer (MJO) testified that he was
“prompted . . . to pull up [LtCol] Mori’s [personnel file]”
4
United States v. Salyer, No. 13-0186/MC
because “the government was looking for some reason why [LtCol]
Mori” had defined “minor” as under the age of sixteen, and
someone in the prosecutor’s office had mentioned that LtCol Mori
had a “very young wife.” He further stated that there was
“absolutely no intent to embarrass the military
judge. . . . [t]he sole purpose [was] to attempt to figure out
if there were any outside influences in his decision.”
Additionally, the OIC testified at length as to his reasons
for calling the CMJ. Along with trial counsel and the MJO, the
OIC was “perplexed by” LtCol Mori’s ruling as to the definition
of “minor.” When the MJO showed him LtCol Mori’s personnel
file, which indicated that his wife was seventeen years of age
at the time they wed, the OIC believed “at that point there was
a relevant issue for the government that suggested bias on the
part of [LtCol Mori].” He further testified that, in light of
the personal nature of the issue on which LtCol was to be voir
dired and the fact that the trial was under way, he “owed the
[CMJ] a professional courtesy to let him know that a significant
event was about to happen.” When asked by defense counsel
whether his intent in calling the CMJ was to have LtCol Mori
reverse his decision, the OIC stated that “it was not.”
Consistent with the evidence produced at the hearing, Col
Richardson made the following findings: (1) the OIC’s phone
call to the CMJ was “reasonably well-intentioned but nonetheless
5
United States v. Salyer, No. 13-0186/MC
[an] unwise decision”; (2) it was “an appearance problem when
that phone call [led] to a series of actions resulting in the
military judge finding himself in a position where he does not
feel like he can continue in the trial”; and (3) “the government
had a good-faith basis for the question that they asked of
[LtCol] Mori, that it was logically connected to a possible bias
in the case.”
Applying the law to these findings, Col Richardson
concluded that (1) “the Government was well within [its] rights
based on these facts to inquire” into the age of LtCol Mori’s
wife at the time they wed, but (2) the OIC’s phone call to the
CMJ and the subsequent recusal of LtCol Mori created the
appearance of unlawful command influence. As a remedy for the
apparent unlawful command influence, Col Richardson refused to
reconsider any of LtCol Mori’s “defense friendly” rulings.
Appellant did not seek any additional remedies.
B.
Where a court-martial has been unlawfully influenced, we
review a military judge’s choice of remedy for an abuse of
discretion. Douglas, 68 M.J. at 354. An abuse of discretion
means that “‘when judicial action is taken in a discretionary
matter, such action cannot be set aside by a reviewing court
unless it has a definite and firm conviction that the court
below committed a clear error of judgment in the conclusion it
6
United States v. Salyer, No. 13-0186/MC
reached upon a weighing of the relevant factors.’” Gore, 60
M.J. at 187 (quoting United States v. Houser, 36 M.J. 392, 397
(C.M.A. 1993)). “This Court has recognized that ‘a military
judge can intervene and protect a court-martial from the effects
of unlawful command influence.’” Douglas, 68 M.J. at 354
(quoting United States v. Biagase, 50 M.J. 143, 152 (C.A.A.F.
1999)). We grant a military judge broad discretion in crafting
a remedy to remove the taint of unlawful command influence, and
this Court has repeatedly emphasized that dismissal “is a
drastic remedy and courts must look to see whether alternative
remedies are available.” Gore, 60 M.J. at 187.
Here, based on detailed findings of fact that were
supported by the record, Col Richardson crafted a “specifically
tailored” remedy “aimed at ameliorating the effects of [the
unlawful command influence],” Douglas, 68 M.J. at 355, to which
defense counsel did not object or request the addition of
further remedial measures. In doing so, he exercised reasonable
discretion, see id., and his decision should not be disturbed
unless this Court “‘has a definite and firm conviction’” that he
“‘committed a clear error of judgment,’” Gore, 60 M.J. at 187(quoting Houser, 36 M.J. at 397).
Nonetheless, the majority concludes that Col Richardson’s
curative steps were insufficient because “any remedy short of
dismissal at this stage would effectively validate the
7
United States v. Salyer, No. 13-0186/MC
Government’s actions.” Salyer, __ M.J. at __ (34). Ostensibly,
the majority is unconcerned with “[w]hether the Government’s
primary motive was to remove a properly detailed military judge
from the case through inappropriate means,” id. at 33, yet it
readily concludes that:
[a]n objective, disinterested observer, fully informed
of these facts and circumstances, might well be left
with the impression that the prosecution in a military
trial has the power to manipulate which military judge
presides in a given case depending on whether the
judge is viewed as favorable or unfavorable to the
prosecution’s cause
id. at __ (30), and describes the Government as “improperly
succeed[ing] in getting the military judge to recuse himself
from Appellant’s court martial,” and taking actions which
“strike at the heart of what it means to have an independent
military judiciary and indeed a credible military justice
system.” Id. at __ (33-34). Such language, when viewed in
conjunction with the majority’s reliance on Lewis, all but
expressly holds that the Government’s actions were “an effort to
unseat a military judge based on the trial counsel’s animosity
toward the military judge, to secure a more favorable ruling, or
to cause the assignment of an alternative military judge.” Id.
at __ (24) (citing Lewis, 63 M.J. at 414).
The problem with this view is that Col Richardson accepted
the Government’s representations that the call to LtCol Mori’s
supervisor was not motivated by a desire to get him to reverse
8
United States v. Salyer, No. 13-0186/MC
his ruling. Thus, while the call was undoubtedly improper, the
animus the majority attributes to it is not supported by the
military judge’s findings or the record. Moreover, the
majority’s broad conclusion that “[t]rial counsel made no
logical nexus between the wife’s age at marriage and the ruling
regarding the age of a minor,” 2 Salyer, __ M.J. at __ (25), is,
quite simply, contradicted by both the record and Col
Richardson’s findings.
Even if we were authorized to make findings of fact, the
record does not support the majority’s vague conclusions. There
are insufficient facts on the record to determine why the
Government wanted the age of a minor to be set at eighteen
instead of sixteen. Nevertheless, the majority uses this lack
of a record to suggest that improper reasons must have motivated
the Government to both contest the military judge’s ruling and
challenge the military judge for cause. Salyer, __ M.J. at __
2
Given LtCol Mori’s rationale for his ruling -- that to rule
otherwise would mean that it would be legal to have sexual
intercourse with someone under eighteen, but illegal to take
naked pictures of that person -- the fact that his wife was
under eighteen years of age when they married is logically
related. See United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F.
2010) (holding that the Courts of Criminal Appeals have no
authority to set aside a finding of possession of child
pornography, charged under clauses 1 and 2 of Article 134, UCMJ,
see Nerad, 69 M.J. at 149 (Stucky, J., dissenting), based purely
on equitable factors and remanding the case to determine whether
the lower court had done so when it set aside the accused’s
findings and reasoned that the accused could have, but for his
existing marriage, legally had sex with the object of the nude
pictures).
9
United States v. Salyer, No. 13-0186/MC
(24-27). The majority bolsters its conclusion that there was no
legitimate prosecution strategy behind the Government’s conduct
by further finding that because the Government had sufficient
evidence to convict Appellant with the lower age imposed by the
military judge, the ruling was not critical to the Government’s
prosecution of its case. Id. at __ (24-25). This reasoning
ignores courtroom realities by undervaluing the Government’s
advantage in possessing overwhelming -- vice sufficient -- proof
of an offense for findings, and the import of quantum of
evidence at sentencing.
Moreover, even assuming that the existence of alternative
means of challenging the military judge’s ruling precludes the
Government from seeking recusal, it is at best dubitante whether
the “normative” methods proposed by the majority were available
to the Government in this case. See id. at __ (27-28). Whether
the Government could have filed an interlocutory appeal under
Article 62, UCMJ, 10 U.S.C. § 862 (2006), requesting review of
LtCol Mori’s decision to instruct the jury that a “minor,” for
purposes of the Article 134, UCMJ, clause 2, child pornography
specifications, is defined as a child under the age of sixteen
is questionable. See id. Article 62, UCMJ, authorizes
government appeals of only the rulings and orders that are
listed in the statute. LtCol Mori’s ruling as to the definition
of a “minor” does not appear to be (1) “[a]n order or ruling
10
United States v. Salyer, No. 13-0186/MC
which excludes evidence that is substantial proof of a fact
material in the proceeding,” Article 62(a)(1)(B), UCMJ, since,
as the majority notes, only two images of child pornography were
required for conviction and the evidence admitted under the
limitations set by LtCol Mori’s ruling depicted eight to ten
images of “subjects who are clearly under sixteen, and some
appear to be under the age of ten,” Salyer, __ M.J. at __ (25);
or (2) an order or ruling that otherwise falls within Article
62, UCMJ’s purview. The mere fact that recusal was sought
simply does not establish a malevolent purpose as a matter of
law, and without a malevolent purpose, there is no basis for
dismissal with prejudice. 3
3
I agree with the majority that the MJO’s action in accessing
LtCol Mori’s personnel record was highly improper and may even
rise to the level of an ethical violation. However, the defense
did not deem this fact sufficiently egregious to mention it in
its motion to dismiss and only touched on it briefly at the
motion hearing. Moreover, that the conduct may be improper does
not answer the unrelated questions whether it was motivated by
animus, as opposed to overzealousness, or whether Col Richardson
took remedial steps that addressed the improper conduct such
that Appellant received a fair trial, both in actuality and
appearance. Cf. Smith v. Phillips, 455 U.S. 209, 220 n.10
(1982) (“Even in cases of egregious prosecutorial misconduct,
such as the knowing use of perjured testimony, we have required
a new trial only when the tainted evidence was material to the
case. This materiality requirement implicitly recognizes that
the misconduct’s effect on the trial, not the blameworthiness of
the prosecutor, is the crucial inquiry for due process
purposes.” (internal citations omitted)).
11
United States v. Salyer, No. 13-0186/MC
C.
If, in fact, Col Richardson’s findings of fact were clearly
erroneous and the Government’s actions could only be viewed as
an “an effort to unseat a military judge based on the trial
counsel’s animosity toward the military judge, to secure a more
favorable ruling, or to cause the assignment of an alternative
military judge,” Salyer, __ M.J. at __ (24), the majority’s
remedy would make some sense as Lewis would control. See Lewis,
63 M.J. at 414. But that is not what the majority claims to
hold. Rather, it purportedly disturbs none of Col Richardson’s
findings with regard to the unlawful command influence motion
and anemically concludes that “[w]hether the Government’s
primary motive was to remove a properly detailed military judge
from the case through inappropriate means or not, it had that
effect.” Salyer, __ M.J. at __ (33).
Taking the majority at its word, and in light of its
complete lack of discussion overruling Col Richardson’s findings
of fact, the decision to dismiss the charges with prejudice is a
remarkable and unwarranted extension of Lewis, where this Court
concluded that “under the unique circumstances of th[e] case” --
namely, the government having engaged in an “orchestrated effort
to unseat [the military judge]” and “compelled [the military
judge] to remove herself” -- the “drastic remedy” of dismissal
12
United States v. Salyer, No. 13-0186/MC
was warranted to ameliorate the resulting unlawful command
influence. Lewis, 63 M.J. at 407, 414, 416.
In Lewis, the Court held that dismissal was warranted where
the staff judge advocate (SJA) and trial counsel “wanted to
ensure that a given military judge, properly detailed and
otherwise qualified, would not sit on Lewis’s case,” and, “[i]n
the end, the [g]overnment achieved its goal through unlawful
command influence.” 63 M.J. at 416. We noted that while both
the accused and the government are “‘permitted to question the
military judge and to present evidence regarding a possible
ground for disqualification,’” id. at 414 (quoting R.C.M.
902(d)(2)), “neither party can usurp the authority of the
service secretaries or Judge Advocates General by removing or
unseating properly certified and detailed military judges,” id.
This Court observed that trial counsel and the SJA had done
just that in conspiring together in an “orchestrated effort” to
unseat the military judge. Id. The first replacement military
judge decided to disqualify himself because he could not be
impartial where “‘the manner in which [trial counsel] handled
the voir dire . . . offend[ed] [him]’” and “the SJA’s crass,
sarcastic, and scurrilous characterization of the social
interaction between [the military judge] and Ms. [JS], besp[oke]
an ignorance, prejudice, and paranoia on the part of the
government.” Id. at 411 (first alteration in original). The
13
United States v. Salyer, No. 13-0186/MC
government’s challenge to the military judge rested on nothing
more than “suggestion, innuendo,” and the SJA’s own “gratuitous
characterization of [the military judge]’s relationship with Ms.
JS,” and the effort to unseat the military judge “was a
continuation of an ongoing effort to remove [her] from any case
in which Ms. JS served as civilian defense counsel.” Id. at
414. In light of these facts, we concluded that the government
“exceeded any legitimate exercise of the right conferred upon
the [g]overnment to question or challenge a military judge.”
Id. We did not hold that the government may not challenge a
military judge where it believes there is actual bias or an
appearance of bias.
The facts of this case are not Lewis. Here, there is no
evidence that the OIC or trial counsel had ever tried to remove
LtCol Mori from a previous case or that trial counsel was acting
as the OIC’s “instrument in the courtroom.” Id. Most
importantly, although defense counsel claimed that “there was an
orchestrated Government effort . . . to remove [LtCol Mori]” and
characterized the Government’s voir dire of LtCol Mori as
“meritless,” Col Richardson rejected that argument, finding that
the OIC’s phone call to the CMJ was “well-intentioned” and that
“the Government had a well grounded factual basis for inquiring
into [the age of LtCol Mori’s wife when they wed].” See supra
note 2.
14
United States v. Salyer, No. 13-0186/MC
Quite strangely, the majority nevertheless appears to hold
that Lewis controls where the “effect” of the Government’s
actions is that the military judge recuses himself, regardless
of whether “the Government’s primary motive was to remove a
properly detailed military judge from the case.” Salyer, __
M.J. at __ (33). While reasonable minds might differ as to the
motivation for the Government’s conduct, such a determination is
undoubtedly factual. And while this Court should not supplant
Col Richardson’s findings of fact with its own simply because we
would have reached a different conclusion with appellate
hindsight, it certainly should not displace Col Richardson’s
remedies with its own extreme remedy without first holding that
Col Richardson’s findings of fact were clearly erroneous. See
United States v. Travers, 25 M.J. 61, 63 (C.M.A. 1987) (“[W]e
will not substitute our judgment for that of the military judge
who was present in the courtroom and familiar with the sense of
what was happening at the time of the [events].”). The
majority, however, stops short of explicitly overruling Col
Richardson’s findings of fact, maybe because it cannot dispute
that no one was in a better position to assess the credibility
and motivations of the witnesses at the hearing on unlawful
command influence than Col Richardson himself.
15
United States v. Salyer, No. 13-0186/MC
D.
Accepting Col Richardson’s factual determination that the
Government had a legitimate ground for voir diring and
challenging LtCol Mori’s impartiality, the next question is
whether LtCol Mori’s recusal otherwise actually or apparently
prejudiced Appellant’s proceedings. Where, as here, unlawful
command influence is established at the trial level, a
presumption of prejudice is created. Douglas, 68 M.J. at 354
(citing Biagase, 50 M.J. at 150). Therefore, to affirm
Appellant’s conviction “we must be convinced beyond a reasonable
doubt that the unlawful command influence had no prejudicial
impact on the court-martial.” Id. (citing Biagase, 50 M.J. at
150-51).
By refusing to reverse any of LtCol Mori’s defense-friendly
rulings, including his ruling as to the definition of a “minor,”
Col Richardson foreclosed the possibility that Appellant would
be unfairly prejudiced by LtCol Mori’s recusal, and, following
this ruling, no disinterested member of the public would harbor
a significant doubt about the fairness of Appellant’s
proceedings.
First, LtCol Mori’s ruling defining a “minor” as a child
under the age of sixteen remained intact.
Second, while the majority asserts that “an objective
member of the public would be left with the appearance and the
16
United States v. Salyer, No. 13-0186/MC
impression that the Government obtained advantage from its
actions” because “[w]e cannot know how the first military judge
would ultimately have ruled” with regard to the marital
privilege issue, Salyer, __ M.J. at __ (32-33), the answer to
that question is ultimately irrelevant to an objective, fully
informed member of the public. Even assuming that LtCol Mori
ultimately would have ruled that: (1) Appellant’s statement to
his then-wife was privileged; and (2) Appellant did not
subsequently waive that privilege, Col Richardson’s decision to
admit Ms. Salyer’s testimony that Appellant told her that his
computer was broken was harmless beyond a reasonable doubt:
both an FBI agent and an NCIS agent testified that Appellant
told them that he had disposed of his computer while on
deployment because it was broken.
The majority inexplicably ignores the fact that there was
cause to seek LtCol Mori’s recusal due to a perception of bias
based on his personal circumstances and a related ruling that
was, based on the law at the time, at least open to question,
which is supported by the findings of fact made by Col
Richardson, who saw and heard the witnesses at the unlawful
command influence motion hearing. Where, in this case, LtCol
Mori’s ruling as to the age of a “minor” remained intact after
his recusal, no additional remedies were requested by Appellant,
no unfairness regarding Col Richardson’s handling of the trial
17
United States v. Salyer, No. 13-0186/MC
is alleged, and no harm to Appellant on findings or sentence has
been demonstrated, I am hard-pressed to understand why we are in
effect treating the Government’s missteps in this case as
structural error. 4
Because I am convinced beyond a reasonable doubt that the
actual or apparent effects of any unlawful command influence in
this case were ameliorated by Col Richardson’s remedial action
and that Appellant received a fair trial, I would affirm the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals.
4
In the absence of an “orchestrated effort” to improperly remove
LtCol Mori, Lewis, 63 M.J. at 414, the Government improperly
accessing LtCol Mori’s personnel file to confirm a rumor
regarding the age of his wife at the time they married, after
“his sua sponte raising the age issue and then ruling quickly
and curtly in the defense’s favor,” should most properly be
viewed through the lens of prosecutorial misconduct. But, of
course, even assuming arguendo that the Government’s conduct
rose to the level of prosecutorial misconduct, Col Richardson’s
curative measures prevented Appellant’s trial from being
negatively affected by the misconduct such that no dismissal at
all, let alone dismissal with prejudice, would be warranted.
See Smith, 455 U.S. at 220 n.10 (recognizing that the proper
remedy in cases of prosecutorial misconduct depends on “the
misconduct’s effect on the trial” and not “the blameworthiness
of the prosecutor”).
18