United States v. Salyer
2013 CAAF LEXIS 822
| C.A.A.F. | 2013Background
- Appellant was convicted by general court-martial of wrongful possession of child pornography under Article 134, UCMJ, with a two-year confinement, forfeiture, reduction, and bad-conduct discharge; conviction occurred after the original military judge recused himself.
- The Navy-Marine Corps CCA affirmed; granted issue: whether government actions caused recusal and amounted to unlawful influence and what remedy is warranted.
- During pretrial proceedings, the government amended specifications, debated age definitions for minors under 16 vs 18, and sought to introduce PE 5 (a Time Warner Cable letter) over hearsay objections.
- A key dispute centered on defining a “minor” for Article 134 offenses, with the military judge initially using under-16 and later discussions about under-18.
- After hearings, the government’s conduct included an ex parte communication with the circuit judge supervising the military judge and probing the judge’s personal life, leading to concerns of appearance of unlawful influence.
- Col Richardson replaced the original judge, found an appearance of unlawful influence but allowed some defense-friendly rulings to stand, ultimately considering remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government actions created an appearance of unlawful influence | Salyer argued appearance of unlawful influence. | Salyer argued actions exceeded proper channels. | Yes; appearance of unlawful influence found. |
| Whether the appearance prejudiced Appellant’s trial | Appellant contends prejudice from recusal. | Remedial steps eliminated prejudice. | No beyond reasonable doubt; prejudice not shown after remedy. |
| Appropriate remedy for unlawful influence | Dismissal with prejudice warranted per Lewis. | Remedy other than dismissal sufficient. | Dismissal with prejudice appropriate. |
Key Cases Cited
- United States v. Lewis, 63 M.J. 405 (C.A.A.F.2006) (appearance of unlawful influence; dismissal as drastic remedy in unique facts)
- United States v. Biagase, 50 M.J. 143 (C.A.A.F.1999) (standard for determining prejudice from unlawful influence)
- United States v. Richter, 51 M.J. 213 (C.A.A.F.1999) (procedural framework for unlawful command influence inquiry)
- United States v. Stoneman, 57 M.J. 35 (C.A.A.F.2002) (low initial burden to show potential unlawful influence; then government rebuttal)
- United States v. Gore, 60 M.J. 178 (C.A.A.F.2004) (remedy should be proportionate; dismissal as last resort)
- United States v. Douglas, 68 M.J. 349 (C.A.A.F.2010) (courts grant military judges curative remedies; dismissal is drastic)