NAVAL STATION NORFOLK, Virginia ― A military judge must decide if prosecutors in the murder trial of a Marine Raider facing a life sentence over the death of an Army Green Beret can use terms such as “Operation Tossed Salad” and “anus licking.”

In the midst of the third day of jury selection in the general court-martial of Gunnery Sgt. Mario A. Madera-Rodriguez, attorneys on both sides argued whether the terms could be used or if they would prejudice the jury.

Prosecutors want to use the terms to go over sexually embarrassing acts Madera-Rodriguez and his co-conspirators allegedly planned in an attack and hazing that led to the death of Army Staff Sgt. Logan Melgar.

Madera-Rodriguez is the last of four charged in the strangulation death of Army Staff Sgt. Logan Melgar in the early morning hours of June 4, 2017, at his off-site housing in Bamako, Mali.

Madera-Rodriguez is the only one to take his charges to a jury trial.

The first three co-defendants pleaded guilty between May 2019 and January 2021. In separate proceedings, they received either bad conduct or dishonorable discharges, rank reductions, other penalties and between one and 10 years in military prison.

Colby Vokey, a retired Marine judge advocate turned civilian attorney, argued to military judge Marine Col. Scott Woodard that because his defense team had not received prior notice that prosecutors planned to use information about the alleged sexually embarrassing acts, they could not be brought into statements to the jury.

Vokey also argued that since the acts never occurred, they couldn’t be included in the charges his client faces. Those charges include conspiracy, assault, obstruction of justice, burglary, false official statements, involuntary manslaughter and felony murder.

“This is going to be a sideshow in the trial,” Vokey told the judge. “And that is no insignificant thing.”

The acts never actually occurred. That’s either because the co-conspirators in the botched hazing on Melgar only planned to take forced, compromising photos of the Green Beret to embarrass him, or because in the process of their “prank,” he died, Vokey said.

‘Be very careful in your choice of words’

Prosecutor and Navy Cmdr. Benjamin B. Garcia argued that the alleged sexual acts planned by Madera-Rodriguez and his three co-conspirators were part of the charges the defendant on trial now faces.

Garcia pointed to how, immediately after the incident, the four men sought to cover up the crime by lying about their involvement, their intent and what exactly happened in the early morning hours of June 4, 2017.

“They realized how this didn’t look like an innocent mistake,” Garcia said.

Vokey also argued to the judge that the prosecution’s own evidence, statements by one of the co-defendants after he pleaded guilty, showed that the men never planned to go through with actual, physical sex acts in the attack.

“We would have done some things but it would not have gone to actual sexual assault,” Navy SEAL Chief Special Warfare Ooperator Adam C. Matthews told the government in July 2019, after he’d pleaded guilty to his role in the crime.

Still, the jury should know what the men intended to do, Garcia argued.

Woodard, the judge, didn’t seem to taken with the prosecutor’s theory.

“You had the opportunity to charge it,” Woodard said. “You did not.”

Woodard seemed unmoved by other arguments Garcia brought forth. But Woodard did warn Vokey and the defense team that if they tell the jury in an opening statement that “this was not hazing; this was a prank” then that could open the door for prosecutors to explain the sexual parts of the plan to beat back an argument that it was an innocent act gone wrong.

“Be very careful in your choice of words,” Woodard warned the defense team. The defense will be on a “razor’s edge” in their opening statements to the jury, he said, meaning the wrong words could allow the prosecution to disclose more about the sexually embarrassing acts.

Jury selection began Monday and will resume Thursday. Opening statements in the trial could come Thursday or Friday, officials said.

A case four years in the making

Matthews had arrived in Mali only 24 hours before that fateful morning to check on Chief SWO Tony E. DeDolph and other special operators deployed to the country to support U.S. diplomats.

DeDolph told Matthews that he and others had problems with Melgar and wanted to conduct a hazing party on him to put him in check.

Later interviews suggested the opposite, that Melgar was fed up with “juvenile behavior” by DeDolph and other teammates and was eager to finish his deployment and return home.

Madera-Rodriguez, Matthews, DeDolph and Marine Raider Staff Sgt. Kevin Maxwell Jr. were out drinking the night of June 3 when they began discussing what to do. That talk turned into plans as the quartet continued bar hopping.

They retrieved a sledgehammer and duct tape and planned to burst through Melgar’s bedroom door as he slept, subdue him and tie him up. Then, they planned to take sexually compromising photos of Melgar with a near-naked Malian man they’d recruited for the stunt who had a belt tied around his neck to simulate a leash. [broke graph into two sentences]

The conspirators called their plan “Operation Tossed Salad,” a slang reference to a sexual act that includes mouth and anus contact.

The group even awakened another special operations soldier, who was Melgar’s senior, to tell them of their plans and ask his permission. In previous court testimony, witnesses said the senior NCO told them to go ahead but didn’t want to participate and went back to sleep.

The four operators, along with the Malian man, stacked outside Melgar’s door and broke through with a sledgehammer. Melgar awoke and tried to fight them off. DeDolph, a former professional mixed martial artist, put Melgar in a chokehold as the others began to tape his wrists and ankles.

That’s when Melgar went limp and stopped breathing.

The men stopped the assault and began lifesaving procedures, including a field-expedient tracheotomy, and took Melgar to a nearby medical clinic where he was pronounced dead.

The two SEALs told the Marines they’d take care of the situation and concocted a story that they had been practicing hand-to-hand combat drills with Melgar when he stopped breathing. They later said they thought Melgar had been drinking, which may have contributed.

But friends of Melgar’s later told investigators that he didn’t drink alcohol.

DeDolph pleaded guilty to involuntary manslaughter and received 10 years in prison, reduction to E-1, forfeiture of pay and a dishonorable discharge.

Maxwell pleaded guilty to negligent homicide, conspiracy to commit assault, hazing, obstruction of justice and making false official statements. He was sentenced to four years of confinement, reduction in rank to E-1 and a bad conduct discharge.

Matthews pleaded guilty to the conspiracy and related charges. He was sentenced to one year of confinement, reduction to petty officer second class and a bad conduct discharge.

Todd South has written about crime, courts, government and the military for multiple publications since 2004 and was named a 2014 Pulitzer finalist for a co-written project on witness intimidation. Todd is a Marine veteran of the Iraq War.

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