We looked at CGCCA’s published decision setting aside a fraternization conviction hereUnited States v. Daly, 69 M.J. 549 (C.G. Ct. Crim. App. 2010).  And we noted the Coast Guard Court’s denial of en banc rehearing here.  On Wednesday, the Coast Guard’s Judge Advocate General specified three issues to CAAF in the case:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDER ARTICLE 134, UCMJ.

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S RULING THAT THE ACCUSED LACKED NOTICE OF THE CRIMINALITY OF HIS CONDUCT UNDER ARTICLE 134, UCMJ, WHERE COAST GUARD REGULATIONS STATE THAT RESOLUTION OF THE CHARGED MISCONDUCT IS “NORMALLY ADMINISTRATIVE.”

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S ORDER DISMISSING THE CHARGE AND SPECIFICATIONS, WHERE THE MILITARY JUDGE DENIED A MOTION FOR RECONSIDERATION AND FAILED TO HOLD AN EVIDENTARY HEARING TO DETERMINE WHETHER THE ACCUSED ACTUALLY RELIED ON COAST GUARD REGULATIONS BEFORE COMMITTING THE CHARGED MISCONDUCT.

United States v. Daly, __ M.J. __, No. 10-6010/CG (C.A.A.F. Aug. 18, 2010).

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