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.”