On August 5, 2020, the AFCCA denied Senior Airman Charles B. Justice's writ of mandamus, asking the Court to direct the military judge to initiate proceedings in his GCM on August 10, 2020.
In February 2020, Petitioner was investigated by agents from the Air Force Office of Special Investigations (AFOSI) at Kirtland Air Force Base (AFB) regarding his purchase of illegal firearms from China. The investigation was triggered after a package containing a firearm silencer was intercepted by U.S. Customs and Border Patrol officials in New York. Following a probable cause search of Petitioner’s home, AFOSI agents found a cache of arms and accessories, including 17 firearms, large amounts of ammunition, 3 firearms silencers, and other firearms-related items. Opinion here.
Subsequently, Petitioner was temporarily confined and later charge with “unlawfully import[ing] a firearm, a violation of 18 U.S.C. § 922(l) , and possess[ing] an unregistered silencer, a violation of 26 U.S.C. § 5861(d).” Petitioner was eventually charged with three charges and three specifications: (1) willful dereliction of duty for failing to register his weapons with the security forces armory in violation of Article 92 , UCMJ, 10 U.S.C. § 892; (2) wrongful disposition of military property by selling Liberator II headsets on the website eBay.com in violation of Article 108, UCMJ, 10 U.S.C. § 908; and (3) larceny of military property by stealing more than 100 Liberator II headsets in violation of Article 121, UCMJ, 10 U.S.C. § 921.
Following an Article 32 hearing, all charges were referred to a general court-martial. Shortly thereafter, Petitioner contracted the novel coronavirus. At this, the Government requested a continuance which defense counsel requested the motion be denied. The military judge granted the motion in part in favor of the Government. In August of 2020, the military judge issued a written ruling denying the defense motion for reconsideration. On August 5, 2020, Petitioner filed a writ of mandamus with the AFCCA. Pointing to the scope of the All Writs Act, 28 U.S.C. § 1651(a), the Court explained that the writs may be issued in extraordinary circumstances and subject to jurisdictional limits.
Waiver of Right to be Present and the Government’s Bad Faith
On the issue of waiver, the court found that a lockdown prevents Petitioner from exiting confinement and defense counsel from entering it to be present with Petitioner. As such, the court sustained its ruling for a continuance in the interest of justice.
On Petitioner’s assertions of bad faith—namely, that the Government was aware of protocols for removing Petitioner from confinement—the court stated that Petitioner has not shown the military judge’s conclusion that the Government acted in good faith was clearly untenable.
At bottom, the court held that Petitioner had satisfied the first prerequisite under Cheneyand had only partially met the second prerequisite. Additionally, the court did not reach the final question of whether they were satisfied that the writ was “appropriate under the circumstances.” Accordingly, the court denied the petition.
The United States Supreme Court has held that three conditions must be met before a court provides extraordinary relief: (1) the party seeking the writ must have “no other adequate means to attain the relief;” (2) the party seeking the relief must show the “right to issuance of the writ is clear and indisputable;” and (3) even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004).