Wednesday, March 05, 2008

Possible published opinon

Looking at the hard copy of the Air Force Court's decision in United States v. Cossio, nothing would suggest that it's a published opinion. And yet LEXIS places it in the "US Courts of Crim App for Branches of US Armed Forces Published Opinions" file. See United States v. Cossio, No. ACM 36206 (pet), 2008 CCA LEXIS 70 (A.F. Ct. Crim. App. Feb. 15, 2008) (per curiam).

I just tried to log onto Westlaw-by-credit-card to definitively resolve whether Cossio will be published. But Westlaw's credit card service put me in an endless loop between a sign on screen and a password change screen. Worse yet, Westlaw doesn't have telephone customer assistance after 2000 EST. (Thank goodness my employer's contract is with LEXIS.) So even though I was willing to pay Westlaw to let me look up the answer, apparently I can't tonight.

Just in case Cossio is actually published, let's take a quick look at it. In Cossio, a servicemember whose court-martial conviction had already proceeded through direct appeal but whose BCD had not yet been executed sought a writ of error coram vobis as the result of newly discovered evidence. Following a contested trial, A1C Cossio was convicted of larceny and some related offenses. Relying on Brady v. Maryland, 473 U.S. 83 (1963), the petition for extraordinary relief argued that the government was required "to disclose two prior worthless check convictions for SrA MHT, a key prosecution witness at petitioner's court-martial." The Air Force Court explained that "public records indicate that SrA MHT pled nolo contendere to four separate misdemeanor worthless check charges under Florida law on 23 September 2003." Cossio's court-martial was in December 2004, and he didn't learn of MHT's Florida record until September 2007.

The Air Force Court denied the writ, basically concluding that any error was harmless. The court reasoned:

[W]e need not address whether the prosecution was ever aware of the nolo contendere pleas prior to trial. In order for the petitioner to obtain relief under the Writ of Coram Vobis for a Brady violation we must find a "probability" the outcome of the challenged proceedings would have been different had trial defense counsel been aware of the pleas in question.

The court held that the newly discovered evidence couldn't satisfy that standard because "we find the petitioner's guilt to the offenses is overwhelming." The court also noted that SrA MTH's credibility "was already significantly undermined by his admission to repeated larcenies by fraud from another party."


Tony Cossio said...

The problem with the court's "Overwhelming Evidence" assertions is that its simply not true. In this case there was an allegation of a threat based almost completley on hearsay. As noted in Appellant's petition to CAAF filed yesterday, the Government Admitted the lack of evidence in their own review:


Secondly, the evidence was simply not overwhelming in this case, especially to Appellant’s wrongful communication of a threat to SrA MHT. The government concedes as much in the pretrial advice:

The accused states, in a written, signed sworn statement to OSI that he was talking to SrA Tree after a concert, outside of SrA Tree's dormitory room.
During this conversation, the accused states that he told [MHT] Tree, "I feel like hitting you." Additionally, in the accused's statement, he states that it was the third week of August 2003 when this conversation took place. SrA [MHT] made a written signed, sworn statement to OSI stating that during this conversation outside of his room, the accused said, "I could beat you into a coma right now." SrA [MHT]'s statement collaborates the time frame to some extent. In his statement, he indicated that the threat took place at least 3 or 4 months after 16 Oct 02, A female airman, Amn Winn was inside of SrA [MHT]'s room but the evidence does not contain a statement from her. Furthermore, SrA Tree invoked his 5th Amendment Right against self incrimination and his Article 31 rights and failed to testify at the Article 32 hearing. Although the statement provided by SrA [MHT] is sufficient evidence to go forward with the Charge and Specification, it will be a difficult charge to prove at trial.

See Pretrial Advice, Vol. 1, ROT. It is especially telling that the military judge found Appellant not guilty of the other specification of wrongful communication of a threat. To suggest that the evidence was “overwhelming,” therefore, was a gross misstatement.
Finally, the AFCCA’s presumption of the correctness unless the “assailant shows otherwise” was an adoption of a higher standard of proof for Brady type issues. See Appendix A. While the Appellant initially carries the burden, a de novo review should be used when determining this issue. See Eshalomi. Additionally, where the defense has made a showing of specific request and materiality, the burden then shifts to the government to establish harmlessness beyond a reasonable doubt. See Roberts supra. Certainly, a presumption of correctness of this decision would impermissibly shift the burden to Appellant, which is contrary to the established case law.
b. The Evidence was readily ascertainable through an exercise of due diligence.

Appellee cannot make the argument that it could not locate this evidence at the time of trial. A bulk of Appellee’s argument at the lower court was that the evidence in question was the “proverbial needle in the haystack.” See Appendix N. Appellee cannot “pass the buck” of responsibility for this case. An “individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf, including police.” United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003) (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)). Due process requires that defendants be able to present a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 79, 485 (1984).
Trial defense counsel discovered prior DUI convictions in Okaloosa County, which he noted in his request dated 29 November 2004. See Appendix F. In its response, the prosecution served upon trial defense counsel a certified copy of an order to revoke SrA MHT’s probation obtained from the Okaloosa County Clerk of Courts. See Appendix K. Mr. Allgood, the director of records for the Okaloosa County Clerk of Courts, said that the SrA MHT’s check convictions were available in their database in 2003. See Appendix J. It is inexplicable why the prosecution could not discover the records of other prior convictions through the same office and in the same county. The Appellee argued that the prosecution does not have to search for the “proverbial needle in the haystack.” See Appendix N. While that is true, SrA MHT’s convictions could have been easily found with minimum effort. The question is – does the prosecution have a duty to check for civilian convictions after a specific discovery request in the same county where the witness resided, had a conviction for driving under the influence, and was placed on parole. Given the burden placed upon the prosecution in the military justice system, the answer is a resounding “yes.” As opposed to the “proverbial needle in the haystack,” a more apt metaphor in this case was that the prosecution ignored the “proverbial skunk at the garden party.” See Mutual of Omaha Ins. Co. v. Nage, 145 F.3d 389, 393 (D.C Cir. 1998).
The prosecution did not exercise due diligence in discovering SrA MHT’s worthless check convictions in this case. By Appellee’s own admission, it only attempted an NCIC check and FCIC check through OSI. However, in the OSI investigative plan in Appellant’s case, the following resources were listed under the heading “LE checks”: NCIC, DCII, Ft. Walton PD, OCSO, SFAR, and AFOSI. See Appendix M. These LE background checks uncovered speeding tickets received by Appellant in their records. Id. It is even more telling that under the heading “Points of Contact” and subheading “Law Enforcement Agencies,” it lists an investigator at the State Attorney’s Office. Id.
In this case, it is readily apparent that investigators ran a very brief computer check and did not even check the criminal records in the county where their detachment is located. It is telling that military investigators and Department of Defense personnel routinely research in the Okaloosa County Clerk’s Office. It is also apparent that they did not check closely aligned agencies listed in their investigative plan, such as the state attorney’s office or the police department. If investigators could locate Appellant’s speeding tickets, why could they not find SrA MHT’s 4 separate convictions of worthless checks?

Anonymous said...

Very clever -- I don't think I've ever seen Art. 34 advice argued in this manner before on appeal.


John O'Connor said...
This comment has been removed by the author.
Tony Cossio said...

We are throwing in everything but the kitchen sink.

However, It's not just the pretrial advice, the ROT is absent of any evidence other than hearsay.

So for the Court to countinue with its line of reasoning that the evidence was "overwhelming", is perplexing to me.

But perhaps it is my opinion, it just very well be that hearsay evidence is "overwhelming" evidence in a military court-martial. Could it be that there actually exist whole cases in the military's honest and fair system were convictions are built on hearsay evidence?

If that is so, it is certainly to the accused benefit to recieve a thorough and serious review from the higher court that refuses to rubber stamp such convictions, especially in light of new evidence pertaining to a discovery request, or lack thereof...

...If only such a court existed.

Anonymous said...

I'm curious why Mr. Cossio's website doesn't reveal his federal convictions (for a wide variety of offenses I might add). Seems like a relevant piece of information if someone is running for an alderman position, especially when running on a platform of "experience, commitment to duty, and integrity."

Anonymous said...

I don't believe we've seen use of pretrial advice before for good reason . . . its not part of the record of trial. Additionally, the focus on the "overwhelming evidence" terminology is misplaced if that is not the appropriate standard for prejudice.

John O'Connor said...

It does seem unusual that one would tout his military service as a background that makes one more worthy of election but fail to note how that service ended.

Tony Cossio said...

"It does seem unusual that one would tout his military service as a background that makes one more worthy of election but fail to note how that service ended."

With respect my service has not ended. That is the point of this appal, I am still technically in the AF.

If this appeal goes through (a big if, but let's assume arguendo) and I do not recieve a big chicken dinner, then by regulation, I would revieve....An honorable Discharge which will allow me to possible continue my service.

Even so, I am currently waiting an appointment as a Deputy Sheriff, I am almost complete with the process, and yes they know about my convictions, and don't care.

Contrary to belief I recieved my firearms card despite the so-called felonies ("federal convictions"), clearing my way for employment.

My statement reflected to dedication to my home town.

If lit-a-gators today existed 50 years ago we would have seen Billy Mitchell, and Col. Lewis Millet (court-martialed and later recievied the medal of honor) would have been drummed out of the military.

To some it up, respectively, you don't know what you are talking about, you don't know me, and you should never assume, for you make an ass-out of you-and-me.

Here we have an individual who stole over a thousand dollars, two Dui's, and four bad checks amoung other things and has continued his "honorable service" because of ---- JAGs that apparently know more about the value of testimony than ethics.

Tony Cossio said...

"I don't believe we've seen use of pretrial advice before for good reason . . . its not part of the record of trial."

My ROT contains the pretrial advice. It may be up to individual commands how they prepare theirs and what information they put in theirs, but that's as far as I will speculate.

I took it out and sent it via eMail, there were several peices of paperwork contained in the ROI that was relevant to this appeal however, and the vast majority of it is new evidence.

John O'Connor said...

Welcome to PerpLog.

Anonymous said...

Ha, now that is funny. Truth be told I have been here for over a year, I usually post Anonymous, and I do use my name if the situation warrants it (i.e. when one of my cases pops up).

I enjoy the sarcasm, wit and wisdom in an otherwise tedious (and what can become boring) profession.

Reading your analysis on cases is more interesting than going through every boring opinion in CAAF's digest.

Because I appreciate the professional nature of this blog, I know to restrict my comments to a few, as not to sour this recipe of fine legal genius baked with a pinch of peppery satire with a lemon of logic from a non-lawyer, and worse, a "perp".

I will take a short sabbatical from posting on this blog until I hear something from CAAF about my case, which will be soon. I hope it will be positive.


Anonymous said...

Mr. Cossio,

Before you embark on your sabbatical, I'd be interested in hearing more about the collateral consequences of your court-martial conviction.

For example, what was the reaction of state or local authorities when you applied for the weapons card and appointment as Deputy Sheriff?

Your experiences might be useful for military counsel advising their clients. It might also be helpful for the clients themselves to realize that there is life after a court-martial, if they're willing to put forth some effort.


TC said...

"For example, what was the reaction of state or local authorities when you applied for the weapons card and appointment as Deputy Sheriff? "

In Cook (Crook) County every year they have an application for Deputy Sheriff, you can choose either the Jail House or Court Room Services. Since I desire to perhaps go to law school, and having enough of jails I picked Court Room Services.

On the employment letter they ask if you have been ever convicted of anything greater than a misdemeanor. I was candid in my response and listed my offenses.

I was then called in to take a written exam, I passed it, and then I took the physical, which again I passed.

When I got home I found that my Firearms card was DENIED (at first). The reason was an injunction for protection (I was given a routine injunction at the start of my court-martial process).

I filed a motion to vacate the injunction and to appear telephonically (it was in Florida). Both were granted. At this time through Florida's system I found the Criminal Records of a witness while searching for my own. This lead to the current appeal which is at CAAF now.

From there I submitted an employee packet/background check were I was fingerprinted. I was then assigned an investigator to go over my file.

The next day I appeared telephonically for my hearing, the Judge tossed out the injunctions noting they were outstanding for many years now. I reapplied for my FOID (firearms card).

I called FOID (ran by the State Police) they said that I was on hold; the FBI was reviewing my offenses. Remember now, I was convicted of Larceny, Communicating a threat, and two Fed. Offenses (Wrongful Use of a Computer to Commit Larceny, and Exceeding Unauthorized Access). So at this point I threw my hands up and said "well, they got me, at least I tried". Then I called a week later and found out the FBI cleared me to receive my FOID Card.

My investigator called me around December, we talked about my offenses, he said as long as I was able to receive my FOID card I was good to go. I keep him in the loop about my appeals, and when I talk to him he asks how they are going (which the reply is always "it got shot down"). I am awaiting my Final Interview, I still have many things to overcome. After which a panel of Judges say yea or nay to my application. Even if I get certified to go to the Academy, I might not go. People get certified for up to two years and never get called upon.

However, I have two friends that work for the Sheriff. One was Marine and has been a Sheriff for 9+ years. He is assigned his own Judge, and once I get certified he will speak to the Judge and see if I can get in a little quicker.

One of my Attorneys works now at AFPC at Randolph and handles Discharge Boards. According to her, there are quite a few applicants looking to upgrade their discharge that have been court-martialed but have found employment as Police.

So it is possible, to try anything. The worst someone can say to you is "no". It never hurts to at least try.

There are many success stories after court-martial. The thing your clients must have is ambition, the will to succeed, support (from family and friends), and maintain a positive attitude).

Your clients must not be discouraged by what has happened in the past. It is the past, what is done is done and cannot be undone, learn from the mistakes that put you in a bad position, but remember you have the rest of your life ahead of you.

It is hard, with the Stigma of a conviction and a "punitive discharge", but not impossible, to overcome the lemons life throws at you.


My Uncle, Louis Klisz, was a Marine Vet that served in Vietnam, he was awarded the Purple Heart on his second tour after being shot in the back caring wounded. When he came home my Uncle joined the Chicago Police force and served many years. Until one day he got in trouble, a man died while he and a few partners took him into custody. He was convicted of manslaughter and served 5-8 years behind bars He was convicted of manslaughter and served 5-8 years behind bars . While he was jailed, he received his College Education by taken advantage of every opportunity there was. When he got out, he became a photographer and security guard for Soldier's Field.

He was always an inspiration to me. And gave me words of encouragement. He died Last Friday, while visiting his family in Texas.

Hundreds attended his funeral. The Marines and the Legion's Honor Guard gave him full military honors and a 21 gun salute.. Many Cops and many Chicago PD Officers attended his funeral despite his "Criminal Record" and paid homage to him.

I am sure if we had listened to the people that told us, "you can't do that", "your life is ruined", and "you're no good", we would have became that person. Fortunately we have this attribute; both a blessing and a curse, not to do everything we are told.

"The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." – Dr. King

Anonymous said...

Thank you. I'll pass on your experiences to others in the same situation, especially those with an interest in law enforcement. I think that maybe military counsel could do more to advise/assist clients with some of these issues post-trial.

At a minimum, I learned as an appellate defense counsel to ask whether clients had any troubles receiving their appellate ID cards or the benefits associated with appellate leave status (NAMALA was always great resource, including approval of GI bill benefits while on appellate leave). On the occasions when NMCCA/CAAF gave substantial relief, I also learned that I needed to contact the FBI as soon as possible to get the NCIC entry corrected (I would have assumed the government did it on its own).

Your idea about the Discharge Review Board, or while your case is still pending review, the Clemency and Parole Board is a good one. In a number of cases I've had the boards agree to mitigate punitive discharges to administrative discharges -- even where the appelllate courts had denied relief -- in order to advance the rehabilitation of the appellant (especially where the appellant had already done everything he could do on his own to advance his rehabilitation and the punitive discharge was the last obstacle remaining).

Good luck!


Anonymous said...

You are correct,

A lot of counsel does not know themselves the different avenues and benefits open to those after court-martial.

In my experience I met a lot of individuals who did not know, or were not explained what benefits they had left. The GI Bill is a common one. Another is retirement. I met one individual who thought he would not be able to use his GI Bill although he had reenlisted (thereby acquiring one honorable discharge). Another MSgt. Was stopped loosed from retirement and court-martialed twice. He thought his previous service didn't matter and he wasn't going collect any retirement. I advised him that his previous discharges counted towards civil retirement if he was able to obtain Government Employment.

I remember reading a story about the late LtCl. Tew, who was court martial for fraternization and received a Dismissal and lost her benefits. She later killed herself in order to keep her benefits and pass them to her Daughters. I remember saying to myself if there was only a counsel that knew the finnier points about retirement, they could have advised her to obtain a civil job as a government employee.

You mentioned the availability to use your GI bill while on appellant review. This is a benefit that I put in good use also while I am still technically active duty. Others remain ignorant of this and other benefits. There are also negative consequences in still being employed by the government, like not being able to collect unemployment when you get out.

Still, these obstacles can be cleared with relative ease.

If life throws you lemons, make lemonade.

As far as the "conviction part" you hit another correct note, NCIC is jacked up and it pays to have those records checked. Especially if a case is overturned, they really have problems removing them.

Also I found many clients as well as JAGs confused what constitutes a "felony". Some think that it depends on the kind of court, others on how much you could have served, and the rule of thumb is it depends on the State. Even if the State's regs say one thing, it doesn't mean they will actually apply the law, which could benefit the accused.


Q: Who was the JAG Officer who decided that LtCl. Tew should face a court-martial for fraternization, while doing the same thing except on a larger scale?

Hint: Rhymes with Circus and sounds like Fiasco combined with said Circus.