U.S. Court of Appeals for the Armed Forces

Fink v. Y.B. and the United States.

​In the pending general court-martial of United States v. Fink, the military judge ruled that Seaman (SN) G.C. may testify that he had a sexual encounter with Petitioner a few months prior to the accused’s alleged assault of Petitioner. The prior alleged encounter has no connection to the charged sexual assault other than to contradict statements made by Petitioner. Petitioner asks this Court to issue a writ of mandamus requiring the military judge to exclude this evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial, United States (2019 ed.). We conclude Petitioner is entitled to relief and grant the writ. 

Y.B. v. United States and Fink--CGCCA.

Fink then takes a writ appeal petition to CAAF raising three issues, only one of which CAAF has decided. Two issues have been left for decision in course of ordinary review should there be a conviction.

I. Whether this Court has jurisdiction to review a writ-appeal petition filed by an accused to review the decision of a court of criminal appeals on a petition for extraordinary relief filed under Article 6b. [GRANTED]

II. Whether the military judge clearly abused his discretion in concluding limited evidence of another sexual encounter is constitutionally required in order to impeach the credibility of the alleged victim’s allegation against the accused. [DENIED]

​III. Whether the lower court erred by (1) analyzing the admissibility of the evidence at issue under rules of evidence other than those for which Article 6b authorizes review and (2) finding the evidence inadmissible under those rules. [DENIED]

When granting on the first issue, CAAF

asked the Government, Appellant, and the named victim for additional briefing on two questions related to Randolph v. HV, 76 M.J. 27, 30-31 (C.A.A.F. 2017), which held that this Court does not have jurisdiction to hear the appeal of an accused in the circumstances of this case. These two questions were whether the amendment of Article 67(c), UCMJ, in the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5331, 130 Stat. 2000, 2934-35 (2016) [hereinafter the 2017 NDAA], requires this Court to reconsider its holding in Randolph, and whether Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2018), now provides this Court jurisdiction.

After working through the reasons for its decision in Randolph, the court finds jurisdiction and that Randolph has been superseded by the statutory changes for "cases in which the amended Article 67(c)(1)(B), UCMJ, applies."