                U NITED S TATES AIR F ORCE
               C OURT OF C RIMINAL APPEALS

IN RE JAMAL X. WASHINGTON                       )       Misc. Dkt. No. 2019–01
First Lieutenant (O-2)                          )
U.S. Air Force                                  )
             Petitioner                         )
                                                )       ORDER
                                                )
                                                )
                                                )
                                                )       Special Panel 1

    On 12 April 2019, Petitioner filed a petition requesting a stay of his ongoing
general court-martial. Petitioner also requested we issue a writ of mandamus
and order the military judge (1) to admit into evidence the portion of Peti-
tioner’s direct examination that was previously struck from the record by oral
ruling of the military judge and (2) to instruct the panel members to consider
this evidence.
    On 12 April 2019, the petition was docketed by this court and titled In re
Washington. See JT. R. APP. PROC. R. 19(b)(3). We may dismiss or deny the
petition without answer. See JT. R. APP. PROC. R. 19(e).
   When the petition was filed, Petitioner’s general court-martial was ongoing
at Malmstrom Air Force Base, Montana. 1 Petitioner was charged inter alia
with a specification of abusive sexual contact in violation of Article 120, UCMJ,
10 U.S.C. § 920 (2016). 2 Petitioner entered a plea of not guilty on 8 April 2019
and elected trial by officer members.
    The specification at issue alleges Petitioner committed abusive sexual con-
tact by touching CP’s penis, over his clothing, without his consent. CP testified
during the Government’s case-in-chief. Petitioner testified during the De-
fense’s case-in-chief that he only hugged CP and touched CP’s leg. Before Peti-
tioner’s cross-examination, the Government sought to obtain Mil. R. Evid. 412
evidence by compelling Petitioner to testify in a closed Article 39(a), UCMJ, 10
U.S.C. § 839(a), session.


1For purposes of resolving the petition, we treat Petitioner’s recitation of facts as ac-
curate. Should we review Petitioner’s case on appeal, we will resolve any factual issues
on the record before us at that time.
2Petitioner did not attach the Department of Defense Form 458, Charge Sheet, to the
petition.
                     In re Washington, Misc. Dkt. No. 2019–01


    The military judge determined Petitioner “must testify” in the closed Arti-
cle 39(a), UCMJ, session. Petitioner, through his defense counsel, declined to
testify during the closed session, so the military judge decided to instruct the
court-martial members to disregard portions of Petitioner’s direct examina-
tion. In response, Petitioner requested a continuance to seek a writ of manda-
mus from this court. The military judge denied the request and instructed the
members to disregard portions of Petitioner’s testimony.
    Petitioner asserts the military judge denied him the right to testify and the
right to put on a case under the Fifth and Sixth Amendments. 3 Petitioner de-
scribes the military judge’s interpretation of Mil. R. Evid. 412 as “facially in-
correct and willfully ignorant” and an “outrageous abuse of discretion and plain
error.” Petitioner argues inter alia that the excluded portion of Petitioner’s tes-
timony was not subject to Mil. R. Evid. 412.
   We consider the petition in aid of our jurisdiction under the All Writs Act.
28 U.S.C. § 1651(a); see also Loving v. United States, 62 M.J. 235, 246 (C.A.A.F.
2005) (citing Clinton v. Goldsmith, 526 U.S. 529, 534 (1999)). The harm alleged
by Petitioner has the “potential to directly affect the findings and sentence.”
LRM v. Kastenberg, 72 M.J. 364, 368 (C.A.A.F. 2013) (citation omitted).
    The Supreme Court has held that three conditions must be met before a
court provides extraordinary relief: (1) the party seeking the relief must show
the “right to issuance of the writ is ‘clear and indisputable’”; (2) the party seek-
ing the writ must have “no other adequate means to attain the relief”; 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. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81
(2004) (citations and internal quotation marks omitted). “Issuance of an ex-
traordinary writ staying court-martial proceedings requires the careful exer-
cise of discretion.” United States v. Beck, 56 M.J. 426, 427 (C.A.A.F. 2002).
    After considering the stage of trial at the time of the petition and the body
of law governing extraordinary writs, we decline to issue a stay.
    We also conclude the petition does not warrant the “drastic and extraordi-
nary remedy” of a writ of mandamus. See EV v. United States, 75 M.J. 331, 332
(C.A.A.F. 2016) (citation and internal quotation marks omitted). To justify re-
versal of a military judge’s decision, it “must amount to more than even ‘gross
error’; it must amount ‘to judicial “usurpation of power,”’. . . or be ‘characteris-
tic of an erroneous practice which is likely to recur.’” United States v. Labella,
15 M.J. 228, 229 (C.M.A. 1983) (per curiam) (citations omitted). Without prej-



3   U.S. CONST. amend. V, VI.


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                  In re Washington, Misc. Dkt. No. 2019–01


udice to Petitioner’s ability to challenge on appeal the military judge’s eviden-
tiary rulings and instructions to the members, we find that Petitioner has not
demonstrated a clear and indisputable right to the relief of a writ of manda-
mus, and a writ of mandamus is not appropriate under the circumstances. See
Cheney, 542 U.S. at 381; Morgan v. Mahoney, 50 M.J. 633, 634 (A.F. Ct. Crim.
App. 1999).
   Accordingly, it is by the court on this 18th day of April, 2019,
ORDERED:
   The Petition for Writ of Mandamus and to Stay Proceedings dated 12 April
2019 is hereby DENIED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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