On 2 November 2009, the Coast Guard Court issued this published opinion reversing a finding of guilty for the novel Article 134 offense of possessing a loaded pistol aboard a Naval Air Station in Texas. We discussed that opinion here. It turns out that after the Coast Guard Court issued that opinion, the government moved for reconsideration. Today, the Coast Guard Court issued a new published opinion in the case, reaching the same conclusion as the original opinion. United States v. Hester, __ M.J. ___, No. 1303 (C.G. Ct. Crim. App. March 30, 2010).
The only differences between the two opinions appear to be the addition of a footnote (n.3 on page 5 of the slip opinion) and a rejection of the government’s argument that the finding of guilty should be affirmed on the theory that possessing a loaded pistol aboard the base violated a service custom. Here’s how the Coast Guard Court dealt with that argument:
The Government claims Appellant’s conduct violated military custom, citing United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003). However, the Vaughan finding of a military custom was supported by several Department of Defense directives. Here, the Government cites noting more substantial than the Naval Air Station Corpus Christi directive mentioned above and a newspaper article. Furthermore, the Government provides no support for a Coast Guard custom. To be the basis for a charge, military custom must be a custom of the military service of which the accused is a member. See United States v. Johanns, 20 M.J. 155, 157-58 (C.M.A. 1985). As for state statutes and military case law that may contribute to notice of wrongfulness of certain conduct, Vaughan at 31-32, the Government’s disparate examples do not align with Appellant’s alleged conduct, and thus provide no clear picture that Appellant’s conduct was wrongful.
As before, the Coast Guard Court provided no sentencing relief, reasoning that any reduction in the adjudged sentence wouldn’t have been greater than the sentence reduction provided by the convening authority. What odds is Ladbrokes giving as to whether the case will be certified to CAAF?