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

In re Charles B. JUSTICE                            )       Misc. Dkt. No. 2020-04
Senior Airman (E-4)                                 )
U.S. Air Force,                                     )
             Petitioner                             )
                                                    )       ORDER
                                                    )
                                                    )
                                                    )
                                                    )       Panel 3

    On 5 August 2020, Petitioner requested we issue a writ of mandamus di-
recting the military judge to initiate proceedings in his general court-martial
on 10 August 2020, the original docketed trial date. According to the petition,
the Government does not have a plan for preserving Petitioner’s constitutional
rights now that the military judge has granted a continuance. This court dock-
eted the petition the same day it was filed.
   We note that we received no motions from the Government seeking to file
an answer to the petition. See JT. R. APP. PROC. R. 19(f)(1). This is not uncom-
mon as we may dismiss or deny a petition without answer from the Govern-
ment. JT. R. APP. PROC. R. 19(e). Here, we determined it was unnecessary to
order the Government to submit an answer and show cause as to why the re-
quested relief should not be granted. The petition and its various appendices
provide us the necessary documents to fully consider the issue presented and
we find the law regarding continuances to be well settled.

                                    I. BACKGROUND
    In early February 2020, agents from the Air Force Office of Special Inves-
tigations (AFOSI) at Kirtland Air Force Base (AFB), New Mexico began an
investigation into whether Petitioner had purchased illegal firearm-related
items from online vendors in China and imported them into the United States. 1
The AFOSI investigation was initiated after agents received a notification that
a package addressed to Petitioner, which contained a firearms silencer, had
been intercepted at a mail center in New York by U.S. Customs and Border
Protection officials. A subsequent probable cause search of Petitioner’s on-base




1   Such activity, if true, would violate 18 U.S.C. § 922(l).
                       In re Justice, Misc. Dkt. No. 2020-04


home by AFOSI agents led to the seizure of 17 firearms, large amounts of am-
munition, 3 firearms silencers, and other firearms-related items. During the
search, AFOSI agents also discovered approximately 166 Liberator II tactical
headsets that appeared to be military property.
    On 19 February 2020, Petitioner was ordered into pretrial confinement. At
that time, the Government alleged that Petitioner had failed to register the
firearms found in his on-base home with Kirtland AFB authorities; and violat-
ing several federal firearms statutes which were assimilated into the Uniform
Code of Military Justice (UCMJ) under Article 134, UCMJ, 10 U.S.C. § 934.2
On 25 February 2020, the pretrial confinement reviewing officer ordered Peti-
tioner released from confinement. Petitioner’s squadron commander issued a
written order restricting Petitioner to the limits of Kirtland AFB that same
day. According to the charge sheet in this case, this restriction ended on
29 February 2020.
    On 16 March 2020, a criminal complaint was filed against Petitioner in
United States District Court in Albuquerque, New Mexico. The complaint al-
leged Petitioner unlawfully imported a firearm, a violation of 18 U.S.C. §
922(l), and possessed an unregistered silencer, a violation of 26 U.S.C. §
5861(d). Petitioner was taken into custody and is currently detained at the Ci-
bola County Detention Center (CCDC) in New Mexico.
     On 16 April 2020, Petitioner’s squadron commander preferred three
charges and three specifications which alleged violations of the UCMJ. These
included: (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. 3




2 These included the 18 U.S.C. § 922(l) allegation described above as well as (1) unlaw-
fully smuggling of goods into the United States, an alleged violation of 18 U.S.C. § 545;
(2) receiving or possessing a firearm which is not registered in the National Firearms
Registration and Transfer Record, an alleged violation of 26 U.S.C. § 5861(d); and (3)
receiving or possessing a firearm without a serial number, an alleged violation of
26 U.S.C. § 5861(i).
3 All references in this order to the Uniform Code of Military Justice, Rules for Courts-
Martial, and Military Rules of Evidence may be found in the Manual for Courts-Mar-
tial, United States (2019 ed.).


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    An Article 32 preliminary hearing was conducted between 5–8 May and 22
May 2020. All charges and specifications were referred to a general court-mar-
tial on 7 July 2020 and were served on Petitioner on 9 July 2020.
    On 22 July 2020, the Government provided notice to the Air Force Trial
Judiciary’s Central Docketing Office of the referral of the charges. The notice
indicated the parties agreed to a 3 August 2020 arraignment date, the Govern-
ment was ready for trial on 10 August 2020, and the Defense was ready for
trial on 14 September 2020. On 23 July 2020, the Clerk, Air Force Trial Courts,
informed the parties to agree on a mutually agreeable time to conduct the dock-
eting conference and to submit their schedules prior to the docketing confer-
ence. On 24 July 2020, the parties submitted their schedules. The Defense ex-
pressed a preference for conducting the docketing conference on “Tuesday of
next week” which would have been 28 July 2020.
    By 27 July 2020, CCDC officials knew that Petitioner tested positive for the
coronavirus disease 2019 (COVID-19). A detention management inspector with
the U.S. Marshals Service emailed a notification to those involved in the U.S.
District Court proceedings that Petitioner had tested positive. Petitioner’s ci-
vilian defense attorney in the district court proceedings in turn notified one of
Petitioner’s military defense counsel.
    On 28 July 2020, the docketing conference was held and it resulted in Pe-
titioner’s trial being set for 10–14 August 2020. At the docketing conference,
trial defense counsel mentioned Petitioner’s positive test for COVID-19. In re-
sponse to this notification, at 1345 hours on 28 July 2020, the Chief of Military
Justice at Kirtland AFB sent an email to three individuals: the Assistant War-
den at CCDC; a representative of the U.S. Marshals Service who coordinated
Petitioner’s movement to and from the CCDC for the Article 32, UCMJ, 10
U.S.C. § 832, preliminary hearing; and a federal prosecutor at the U.S. Attor-
ney’s Office in New Mexico. Initially, the email notified these individuals of the
newly-docketed trial dates and discussed the procedures for having Petitioner
appear at the court-martial. The email then stated “[a]dditionally, we were just
informed by the Defense that they were told [Petitioner] contracted [COVID-
19]. I was hoping someone could confirm this information. If it is accurate, I’d
also like to request what types of mitigation measures are being taken with
respect to his medical well-being (i.e., quarantine, etc.).”
   At 1357 hours, the representative from the U.S. Marshals Service replied
       Cibola County is currently locked down due to a [COVID-19] out-
       break at the facility. No transports will be allowed at this time
       and I do not know if movement will be allowed in your requested
       timeframe. We will need to ensure the safety of all Cibola in-
       mates before we will allow transports to resume. [Petitioner] has


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                     In re Justice, Misc. Dkt. No. 2020-04


       tested positive for [COVID-19] and inmates who have tested pos-
       itive . . . are being quarantined and monitored by medical staff.
       This is a dynamic situation and I understand it may pose an is-
       sue with your upcoming trial but this outbreak is affecting all
       Federal Courts as well as they have all been cancelled or post-
       poned as well.
   The detailed military judge conducted a Rule for Courts-Martial (R.C.M.)
802 conference with the parties on 28 July 2020 and issued a scheduling order
that day. The scheduling order mentioned Petitioner’s positive COVID-19 test
result and ordered specific measures for his trial. First, the military judge in-
formed the parties that “no known positive/symptomatic individuals will be
permitted in the courtroom and the Government must seek a means of testing
the [Petitioner] prior to trial to ensure he is negative.” The military judge also
required the parties to submit a joint mitigation plan by 30 July 2020 of “all
the measures that will be implemented to minimize the risk to trial partici-
pants, and whether appropriate medical personnel concur that the proposed
mitigation measures are sufficient to minimize risk to all participants.”
    On 29 July 2020, the senior trial counsel and the Assistant Warden at
CCDC had a phone conversation regarding Petitioner’s upcoming court-mar-
tial. The senior trial counsel summarized the conversation in a follow-up email
to the Assistant Warden which he agreed was accurate. Petitioner’s trial de-
fense counsel were courtesy copied on the email. Most pertinently, the Assis-
tant Warden confirmed that (1) CCDC was following the state of New Mexico’s
guidance on quarantining and this included a 14-day quarantine after a posi-
tive test is received; and (2) the quarantine lockdown of CCDC would run until
11 August 2020 and this date was subject to extension.
    On 29 July 2020, the Government filed a written motion for continuance.
In it, the Government noted they “first learned” that Petitioner tested positive
for COVID-19 at the docketing conference. The Government asserted they took
the necessary steps to confirm this information with the U.S. Marshals Service
and the CCDC Assistant Warden to determine its impact on the docketed trial
dates. The Government requested the arraignment be moved to 14 September
2020 and the motions and trial be conducted on 1 February 2021 or an earlier
date depending upon the availability of defense counsel.
    On 30 July 2020, the Defense submitted a written response to the continu-
ance motion requesting it be denied. The Defense argued inter alia that the
issues identified in the Government’s motion could be handled prior to 10 Au-
gust 2020 and that if the U.S. Marshals Service refused to transport Petitioner
then the military judge could issue an order for them to comply. The Defense
further wrote “[i]f the facts of this response are disputed,” then they would



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request an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session to call the U.S.
Marshals Service representative to testify.
    On 31 July 2020, the military judge issued a written ruling granting in part
the Government’s continuance. The military judge set the arraignment for
14 August 2020 via video teleconference and ruled that “at arraignment the
Court will establish the new date for motions and trial” and that “all parties
will be prepared to discuss dates at that time.” The military judge excluded the
time period from 10–13 August 2020 under R.C.M. 707. In the findings of fact,
the military judge listed five additional motions that had been filed by the De-
fense. These motions can be generally described as (1) a motion to dismiss for
speedy trial violations; (2) a motion for appropriate relief for a defective Article
32 hearing; (3) a motion for appropriate relief for illegal pretrial punishment;
(4) a motion for appropriate relief involving Mil. R. Evid. 317, Interception of
wire and oral communications; and (5) a motion to suppress statements of Pe-
titioner.
   Later on 31 July 2020, trial defense counsel filed a written request for re-
consideration. On 3 August 2020, the Government responded and requested
the military judge deny the reconsideration motion. On 4 August 2020, the
military judge issued a written ruling denying the defense motion for reconsid-
eration. Petitioner filed the request for us to issue a writ of mandamus on 5
August 2020.

                                     II. LAW
    The All Writs Act, 28 U.S.C. § 1651(a), grants this court authority to issue
extraordinary writs necessary or appropriate in aid of its jurisdiction. See Lov-
ing v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005) (citing Clinton v. Gold-
smith, 526 U.S. 529, 534 (1999)). However, the Act does not enlarge our juris-
diction, and the writ must be in aid of our existing statutory jurisdiction. Chap-
man v. United States, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citing Gold-
smith, 526 U.S. at 534–35). As the text of the All Writs Act recognizes, a court’s
power to issue any form of relief—extraordinary or otherwise—is contingent
on that court’s subject matter jurisdiction over the case or controversy. United
States v. Denedo, 556 U.S. 904, 911 (2009). “To establish subject matter juris-
diction, the harm alleged must have had the ‘potential to directly affect the
findings and sentence.’” LRM v. Kastenberg, 72 M.J. 364, 368 (C.A.A.F. 2013)
(quoting Center for Constitutional Rights (CCR) v. United States, 72 M.J. 126,
128 (C.A.A.F. 2013)).
    The writ of mandamus is a drastic and extraordinary remedy reserved for
extraordinary causes. EV v. United States, 75 M.J. 331, 332 (C.A.A.F. 2016)
(internal quotation marks and citations omitted). The United States Supreme



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Court has held that three conditions must be met before a court provides ex-
traordinary 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) (internal quotation
marks and citations omitted).
   The military judge may, for reasonable cause, grant a continuance to any
party for such time, and as often, as may appear to be just. Article 40, UCMJ,
10 U.S.C. § 840. A continuance can only be granted by a military judge. R.C.M.
906(b)(1). Reasons for a continuance may include an “illness of an accused.”
R.C.M. 906(b)(1), Discussion.
    The United States Supreme Court has recognized that “broad discretion
must be granted trial courts on matters of continuances.” Morris v. Slappy, 461
U.S. 1, 18 (1983). “A military judge’s decision to grant or deny a continuance
must be tested for an abuse of discretion.” United States v. Miller, 47 M.J. 352,
358 (C.A.A.F. 1997) (citation omitted). “An abuse of discretion exists where
reasons or rulings of the military judge are clearly untenable and . . . deprive
a party of a substantial right such as to amount to a denial of justice . . . .” Id.
(internal quotation marks and citation omitted).

                                  III. ANALYSIS
    Petitioner argues that the petition is in aid of our jurisdiction under the All
Writs Act. We agree. The harm alleged by Petitioner has the potential to di-
rectly affect the findings and sentence.
    Two factual assertions in the petition warrant close examination. First, the
petition states the “military judge granted the continuance through 1 February
2021.” This assertion is not supported by the military judge’s initial written
ruling. The military judge granted the Government’s continuance motion “in
part” and specifically continued the arraignment until 14 August 2020. The
motions and trial on the merits in this case have not been docketed for 1 Feb-
ruary 2021.
    Second, the petition states that Petitioner “waived his rights to be present
at trial pursuant to R.C.M. 804.” The issue of waiver of Petitioner’s right to be
present was raised to the military judge after the continuance was granted in
part and the Defense moved for reconsideration. In the reconsideration motion,
the senior defense counsel wrote,
       In order to preserve his Speedy Trial Right to a 10 August trial
       date, [Petitioner] will agree to waive his right to be present at

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       the trial pursuant to R.C.M. 804, and agree to be present by re-
       mote means. The Defense hereby requests that [Petitioner] be
       permitted to [appear] at his Court-Martial remotely if necessary
       in order to preserve his trial date.”
(Emphasis added). We see nothing in the language of the Defense’s reconsid-
eration motion to show a completed waiver by Appellant of his right to be phys-
ically present during any part of his trial. At best, this language indicates an
intent by Petitioner to agree to waive his right to be present at some future
point.
    The military judge directly addressed the issue of waiver in the reconsider-
ation ruling. The findings of fact include “[t]here is no evidence the CCDC has
a means to effectuate the remote presence of [Petitioner].” In the analysis, the
military judge determined that waiver of presence only applied to Article 39(a),
UCMJ, sessions and, citing to R.C.M. 804(b), that audiovisual technology will
satisfy the “presence” requirement of the Petitioner only when the Petitioner
has a defense counsel physically present at his location. The military judge
concluded that this was not possible “as a lockdown prevents [Petitioner] from
exiting confinement and defense counsel from entering it to be present with
[Petitioner].”
    On reconsideration, the military judge found the “[G]overnment remains
unable to secure [Petitioner] for trial on 10 August.” The military judge also
forecast that the originally scheduled five days of trial “appear to be insuffi-
cient” to litigate five motions “and a [members’] trial with at least 14 wit-
nesses.” The military judge further found the parties had yet to agree to an
acceptable joint health and safety plan including Petitioner’s “negative
COVID-19 test prior to entering the courtroom.” The military judge main-
tained the court’s original ruling and found a continuance to be required in the
interests of justice.
    Having addressed the two factual assertions, we turn to the legal argu-
ments of Petitioner and begin with the argument that the right to issuance of
the writ is clear and indisputable, the second condition under Cheney. First,
Petitioner asserts that the issuance of the writ is clear and indisputable be-
cause the timing of the Government’s continuance motion, the day after dock-
eting the trial date, indicates bad faith on the Government’s part. Petitioner
argues the Government was aware of the protocols for removing Petitioner
from CCDC as this had been previously accomplished for the Article 32 pre-
liminary hearing. Petitioner also cites various provisions of the Constitution




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                       In re Justice, Misc. Dkt. No. 2020-04


including that the due process clause of the Fifth Amendment 4 “may be appli-
cable to protect an accused against egregious trial delays.”
    On the assertion of bad faith, we note that the military judge assessed six
factors from Miller before initially granting the continuance in part. 47 M.J. at
358. One of those factors was the “good faith of the moving party” with a finding
of “no evidence” that the Government acted in bad faith or for strategic reasons.
The military judge assessed there was no evidence that the Government acted
in bad faith or sought a continuance for strategic reasons, but “[r]ather the
[G]overnment appears to have been unprepared for docketing the case and ne-
glected understanding the procedures necessary to secure [Petitioner] and wit-
nesses presence amidst a global pandemic.” Petitioner has not shown the mil-
itary judge’s conclusion that the Government acted in good faith was clearly
untenable. The military judge weighed the Government’s unpreparedness at
docketing and their neglect in understanding COVID-19 procedures and still
found no bad faith. While Petitioner disagrees with the military judge’s con-
clusion, the conclusion itself is not clearly untenable.
    Regarding the Government’s awareness of protocols, the military judge an-
alyzed another Miller factor—whether the Government as the moving party
used reasonable diligence. See id. The military judge found the Government
was “not diligent in ensuring [Petitioner’s] presence” for trial and weighed this
factor in Petitioner’s favor. The military judge’s decision to grant the continu-
ance, even though the Government was not diligent, is not clearly untenable.
    Petitioner’s next point is that his constitutional rights are “at significant
risk of violation.” We are not persuaded that the risk of a constitutional viola-
tion, even a significant one, is sufficient to show a “clear and indisputable”
right to a trial start date of 10 August 2020 as originally docketed. The length
of the continuance at this point is a few days. Further, it appears many consti-
tutional issues remain subject to motion practice. Two of the motions filed by
the Defense are submitted with the petition and request a remedy of dismissal
with prejudice. Under these circumstances, Petitioner has not carried the bur-
den required for the drastic remedy that he seeks.
    We briefly comment on Petitioner’s argument that he has no other ade-
quate means to attain relief, the first Cheney condition, as the military judge
ruled on the continuance motion initially and on reconsideration. We agree
with Petitioner in part as his arraignment will be held, at the earliest, on 14
August 2020. Still, we see an opportunity to limit the length of further contin-
uances differently than Petitioner. We would expect a discussion on the record,
in an Article 39(a), UCMJ, session at the arraignment where the parties will


4   U.S. CONST. amend. V.


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                     In re Justice, Misc. Dkt. No. 2020-04


submit their schedules, project the availability of witnesses, and discuss other
factors necessary to conduct motions and the trial under the current global
pandemic. After which, if the military judge then finds reasonable cause for a
further continuance, one may be granted “for such time . . . as may appear to
be just.” See Article 40, UCMJ. As the military judge has yet to make a decision
on a continuance beyond 14 August 2020, we decline to find Petitioner has no
other adequate means of relief of arguing his trial should be held prior to 1
February 2021, a position that appears amenable to the Government depend-
ing on defense counsel’s availability.
    As we have determined that Petitioner has not met the first prerequisite
under Cheney and has only partially met the second prerequisite, we do not
reach the final question of whether we are satisfied, in the exercise of our dis-
cretion, that the writ is “appropriate under the circumstances.” 542 U.S. at
380–81 (citations omitted).
   Without prejudice to Petitioner’s ability to challenge on appeal the military
judge’s rulings, we find that Petitioner has not demonstrated a clear and in-
disputable right to the relief of a writ of mandamus and that he has other ad-
equate means to attain relief for a continuance beyond 14 August 2020.
   Accordingly, it is by the court on this 12th day of August, 2020,
ORDERED:
   The Petition for Writ of Mandamus dated 5 August 2020 is DENIED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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