                        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 Oct. 23, 2012) (unpublished).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?


                                    5
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




                                 14
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].


                               15
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

                                  19
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.

                                  20
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

                                25
United 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
