UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32508

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UNITED STATES

Appellee

v.

John T. GRIECO, Jr.

Staff Sergeant (E-5), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 1 October 2018

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Military Judge: Ryan Hendricks.

Approved sentence: Bad-conduct discharge, confinement for 3 months, 

and reduction to E-1. Sentence adjudged 17 January 2018 by SpCM convened at Joint Base Langley-Eustis, Virginia.

For Appellant: Lieutenant Colonel Judith A. Walker, USAF; Major Jarett F. Merk, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Michael T. Bunnell; USAF; Mary Ellen Payne, Esquire.

Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.

Senior Judge HARDING delivered the opinion of the court, in which 

Judges HUYGEN and POSCH joined. 

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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HARDING, Senior Judge:

A military judge convicted Appellant, consistent with his pleas made pursuant to a pretrial agreement (PTA), of four specifications in violation of Article 

112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. Specifically, 
United States v. Grieco, No. ACM S32508

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Appellant was convicted of possessing and using cocaine on divers occasions 

and of possessing and using heroin on divers occasions. Officer members sentenced Appellant to a bad-conduct discharge, confinement for six months, and 

reduction to the grade of E-1. In accordance with the limitation of the PTA, the 

convening authority approved only three months of confinement. He otherwise 

approved the sentence as adjudged.

This case was submitted for our review on its merits without assignment 

of error. Upon our review, we noted that for both controlled substances—cocaine and heroin—Appellant was charged with a specification for divers possession of “some amount” of the controlled substance in a specific timeframe 

and location and charged with a corresponding specification of divers use of the 

controlled substance in the same timeframe and location.1 The providence inquiry into Appellant’s pleas of guilty for the heroin offenses failed to clearly 

establish any instance of possession of heroin by Appellant distinct from Appellant’s use of that very same amount of heroin.2

Consistent with United States v. Bullington, 18 M.J. 164 (C.M.A. 1984), we 

find the specification for divers possession of heroin is multiplicious with the 

specification for divers use of heroin. Giving due weight to the “waive all waivable motions” provision of the PTA and Appellant’s unconditional guilty plea,

we nonetheless set aside the finding of guilty and dismiss with prejudice Specification 4 of the Charge (divers possession of heroin). Finding no other prejudicial error, we affirm the remaining findings and reassess the sentence to be 

the same.

I. BACKGROUND

During the providence inquiry, the military judge asked Appellant why Appellant believed he was guilty of divers possession of heroin.

 

1 We ordered the Government to show cause why the specifications for divers possession of cocaine and heroin were not multiplicious with the corresponding divers use 

specifications or were not an unreasonable multiplication of charges, and why the court 

should not dismiss the possession specifications.

2 While there is also substantial overlap between the specifications for divers possession and divers use of cocaine, Appellant admitted during the providence inquiry that 

on at least two occasions he possessed some amount of cocaine that he did not use. 

Appellant described occasions when he would pick up cocaine from a dealer, transport 

the cocaine in his car, and then provide some amount of that cocaine to others. Additionally, Appellant described a search of his residence that resulted in the seizure of 

some amount of cocaine. Thus, there were sufficient instances of cocaine possession by 

Appellant not subsumed by Appellant’s uses of cocaine, and the divers possession of 

cocaine specification is not multiplicious with the divers use of cocaine specification.
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MJ (Military Judge): And at this time, I want you to tell me why 

you are guilty of the offense listed in Specification 4 of the 

Charge [divers possession of heroin]. 

ACC (Accused): Your Honor, in early January 2017 I started using heroin. The first time I was with [ES] in his car somewhere 

in Newport News, Virginia. We were hanging out with two of his 

civilian friends whose names I cannot remember at this time. 

[ES] pulled out a bag containing a gray powdery substance; he

and his two friends started snorting the powder through their 

nose using a dollar bill. [ES] then offered me to use some with 

them. [ES] handed me a small amount of the heroin powder and 

the dollar bill and I snorted it through my nose. When he handed 

me some of the heroin and powder, I possessed it. No one else 

had any control over the powder except for me once [ES] gave it 

to me. This happened approximately ten times between January 

2017 and 20 July 2017. This would occur either in my residence 

or [ES’s] car or residence, all of which were within the Commonwealth of Virginia.

Each time I possessed it, I knew it was heroin because [ES] told 

me it was heroin and because of the effects I felt after using it. 

Additionally, there were occasions similar to the cocaine were

[sic] [ES] would bring it to my house in exchange for money. On 

those occasions I would possess it at my house in Hampton, Virginia.

When the military judge asked Appellant why he was guilty of divers use 

of heroin, Appellant described additional uses when the heroin was injected 

into Appellant’s arm.

Additionally, at some point in early February 2017, I was at

[ES’s] house with his civilian friend named [J]. While we were

there, [ES] started mixing the same gray powdery substance we 

had snorted before into a liquid. He and [J] then used a syringe 

to soak up the liquid and injected it into their arms. [ES] asked

me if I had -- or if I had wanted to try injecting the heroin and I 

accepted the offer. I was too afraid to do it myself, so [J] injected 

it into my arm for me. I immediately felt that strong sense of 

euphoria that I would feel after snorting the heroin, but this was 

a stronger rush. I used heroin intravenously approximately 8 

times between February 2017 and 20 July 2017. Every time I 

would use it that way, [ES] or [J] would inject it into my arm,

but I was doing it voluntarily.
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The stipulation of fact, on the matter of divers possession of heroin by Appellant, substantially echoed Appellant’s narrative response as to why he was 

guilty of that offense.

Appellant’s PTA with the convening authority included a term that Appellant offered to “[w]aive all motions which may be properly waived under the 

Rules for Court-Martial [sic] and case-law.” The military judge conducted an 

inquiry as to Appellant’s understanding of this term, and Appellant acknowledged that he understood he was waiving all motions that by law are waived 

by a guilty plea. The military judge further asked Appellant, “In particular, do 

you understand that this term of your pretrial agreement precludes this court 

or any appellate court from having the opportunity to determine if you’re entitled to any relief based upon any such motion?”3 Appellant stated that he understood. Appellant’s trial defense counsel stated that this term originated 

with the Defense and identified motions that the term covered that were being 

considered in the absence of a PTA. Appellant’s trial defense counsel did not 

identify multiplicity or unreasonable multiplication of charges as a potential 

motion considered in the absence of a PTA or one specifically waived by the 

“waive all waivable motions” provision.

II. DISCUSSION

Whether a motion is waived by the “waive all waivable motions” provision 

in the PTA or by Appellant’s unconditional guilty plea, this court is not precluded from determining whether Appellant is due relief for a multiplicious 

specification. See United States v. Chin, 75 M.J. 220, 222–23 (C.A.A.F. 2016). 

As the United States Court of Appeals for the Armed Forces (CAAF) acknowledged in Chin, Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires a Court of 

Criminal Appeals (CCA) to conduct a plenary review and “affirm only such 

findings of guilty and the sentence or such part or amount of the sentence, as 

it finds correct in law and fact and determines, on the basis of the entire record, 

should be approved.” Chin, 75 M.J. at 222 (quoting Article 66(c), UCMJ). The 

CAAF continued, 

 

3 This question comes directly from the Military Judges’ Benchbook. Dept. of the Army 

Pamphlet 27-9 at 130–31 (10 Sep. 2014). To the extent this question includes a premise 

that a waiver of motions term in a PTA “precludes” an “appellate court from having 

the opportunity to determine” whether any relief is due upon the waived motions, that 

premise is incorrect. See United States v. Chin, 75 M.J. 220, 222–23 (C.A.A.F. 2016)

(holding courts of criminal appeals have the power under Article 66, UCMJ, to conduct 

complete appellate review unless waived altogether pursuant to Article 61, UCMJ, 10 

U.S.C. § 861).
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While an accused is prevented from raising an issue by a “waive 

all waivable motions” provision, an accused has no authority to 

waive a CCA’s statutory mandate unless, through Article 61, 

UCMJ, procedures, the accused waives the right to appellate review altogether—and that election cannot be made until after 

the trial and sentencing. . . . Because Article 61, UCMJ, is the 

exclusive means by which an accused can waive the right to a 

complete appellate review, . . . that right cannot be waived in a 

PTA, even when a “waive all waivable motions” provision is 

given full effect. 

Id. at 223 (internal citations omitted). A “waive all waivable motions” provision 

and unconditional guilty plea are factors for a CCA to weigh in determining 

whether to nonetheless disapprove a finding or sentence. Id.

In the answer to the show cause order in Appellant’s case, the Government 

identified two aspects of the record to support its contention that “Appellant

describe[d] occasions where he possessed heroin separate and apart from those 

occasions where he used it.” First, the Government points to Appellant’s statement during the providence inquiry that ES would bring heroin to Appellant’s 

home and Appellant would purchase it. Appellant was not, however, asked a 

follow-up question regarding what he did with this heroin. During the later 

inquiry as to Appellant’s use of heroin, Appellant described using heroin in his 

home with ES, and Appellant was not asked if these uses of heroin in his home 

with ES matched the possession of heroin brought to his home by ES and then 

purchased by Appellant.

To demonstrate further that Appellant discussed possession of heroin distinct from his use, the Government points to Appellant’s written statement 

that was made to the Air Force Office of Special Investigations (AFOSI) and 

attached to the stipulation of fact. In the statement, Appellant wrote, “I purchased heroin and cocaine from [ES] for a friend named [J]. Sometimes I would 

pick up the drugs from ES, sometimes ES would pick the drugs up from me.” 

We are not persuaded.

We note Appellant did not specifically stipulate to the truth of his written 

statement to the AFOSI. Appellant stipulated only that the attachment to the 

stipulation of fact was “a true and accurate copy of the written statement.” 

More importantly, Appellant was not asked about the statement during the 

providence inquiry. However, when asked why he was guilty of divers possession of cocaine, Appellant gave an answer that mirrored his written statement 

to the AFOSI.

When [ES] and I would use cocaine together, I would give him 

money to buy cocaine and he would either bring it back to his 
United States v. Grieco, No. ACM S32508

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house or to my house. He would give me some amount for me to 

use and then he would keep some amount for him to use. There 

were a couple of occasions where he asked me to pick up cocaine 

for him from his dealer and bring it back to him and sometimes 

our friend [J]. When I would pick it up, I would transport it back 

to his house or my house. Each time I would transport it, I possessed the cocaine in my car. I could have prevented it from being in my car if I wanted to.

Appellant did not give a similar answer when asked why he was guilty of 

possession of heroin. Instead Appellant described being handed heroin powder, 

possessing it, and then snorting it and ES sometimes bringing heroin to Appellant’s house for purchase by Appellant. Appellant was not asked and did not 

say exactly what he did with this purchased heroin, but the clear implication 

was that he used it, particularly because he never said that he passed it on to 

anyone else. He did discuss using heroin in his home with ES. Most importantly, Appellant did not state on the record or even write in his statement 

to the AFOSI that he ever possessed any amount of heroin and then stored it 

or transferred it to the possession of another. 

In Bullington, the CAAF held that separate specifications alleging use and 

possession of the same amount of a controlled substance are multiplicious. 

Consistent with that legal principle, we conclude the stipulation of fact and 

Appellant’s providence inquiry, which constitute all of the evidence of Appellant’s guilt of heroin possession, do not support finding a possession of any 

amount of heroin by Appellant distinct from Appellant’s contemporaneous use 

of the same heroin possessed.4 On the record before us, we find no clear and 

specific possession of any amount of heroin by Appellant that did not also result 

in Appellant’s contemporaneous use. Thus, we conclude the separate specifications alleging the use and possession of heroin are multiplicious in light of the 

facts established, or more pointedly, not established by the record.

Having found the heroin possession specification multiplicious for findings, 

we are left to decide whether we should affirm a conviction that violates the

 

4 The deficiency in the record regarding Appellant’s possession of heroin distinct from 

Appellant’s use may present questions as to the legal and factual basis of Appellant’s 

guilty plea as to the possession of heroin. See United States v. Inabinette, 66 M.J. 320 

(C.A.A.F. 2008). However, given our dismissal of Specification 4, we need not address

those questions. 
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Double Jeopardy Clause of the Fifth Amendment.5 We decline to do so. In 

reaching this conclusion, we gave due weight to the “waive all waivable motions” provision of the PTA and Appellant’s unconditional guilty plea, but were

also struck by the parties’ apparent lack of awareness at trial of the obvious

application of the legal principle established in Bullington to this case. No matter contained in the stipulation of fact, addressed during the providence inquiry, or otherwise discussed in the record of this case demonstrates a recognition of the legal significance of establishing even a single possession of heroin 

distinct from its use, much less on divers occasions. The finding of guilty as to 

Specification 4 of the Charge (divers possession of heroin) is set aside and the 

specification is dismissed with prejudice.

Having dismissed Specification 4 of the Charge, we consider whether we 

should reassess the sentence or return this case for a sentence rehearing. We 

are confident we can accurately reassess an appropriate sentence.

This court has “broad discretion” in deciding to reassess a sentence to cure 

error and in arriving at an appropriate reassessed sentence. United States v. 

Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). The CAAF has observed that 

CCA judges can modify sentences “‘more expeditiously, more intelligently, and 

more fairly’ than a new court-martial. . . .” Id. at 15 (quoting Jackson v. Taylor, 

353 U.S. 569, 580 (1957)).

Pursuant to Winckelmann, 73 M.J. at 15–16, we use four factors to guide 

our determination whether to reassess a sentence when applying them to Appellant’s case:

• Dramatic changes in the penalty landscape and exposure: As Appellant 

was tried at a special court-martial, the jurisdictional maximum was 

the maximum imposable punishment with or without Specification 4 of 

the Charge. There is no change in the penalty landscape.

• Whether an appellant chose sentencing by members or a military judge 

alone: Appellant was sentenced by officer members. While it is conventional wisdom that our certainty as to the sentence absent the error is 

greater with a military judge, we are likewise certain of what this officer 

panel would have done in this case in light of the other three factors.

 

5 U.S. CONST. amend. V; see also United States v. Forrester, 76 M.J. 389 (C.A.A.F. 2017) 

(holding that the concept of multiplicity is grounded in the Double Jeopardy Clause of 

the Fifth Amendment, which prohibits multiple punishments for the same offense, and

multiplicious prosecutions when the Government charges a defendant twice for what 

is essentially a single crime).
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• Whether the nature of the remaining offenses captures the gravamen 

of criminal conduct included within the original offenses and, in a related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses: Appellant still stands properly convicted of divers use 

of heroin and divers use and possession of cocaine. Because the remaining specifications capture the underlying conduct of the dismissed specification, all of the evidence presented at trial remains relevant and admissible. This factor weighs heaviest in our determination that we may 

confidently reassess Appellant’s sentence. 

• Whether the remaining offenses are of the type that CCA judges should 

have experience and familiarity with to reliably determine what sentence would have been imposed at trial: This court has ample experience with the types of drug charges and with drug cases with similar 

facts as in Appellant’s case. Our experience informs us that we are able 

to reliably determine what sentence would have been imposed at trial.

Therefore, considering the facts of Appellant’s case and the totality of the 

circumstances, we find we are able to determine to our satisfaction that, “absent any error, the sentence adjudged would have been of at least a certain 

severity . . . .” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Having 

so found, we reassess Appellant’s sentence to the same sentence that was approved by the convening authority: a bad-conduct discharge, confinement for 

three months, and reduction to the grade of E-1. 

III. CONCLUSION

The finding of guilt for Specification 4 of the Charge is SET ASIDE and 

Specification 4 of the Charge is DISMISSED WITH PREJUDICE. The remaining findings and the sentence as reassessed are correct in law and fact, 

and no other error materially prejudicial to the substantial rights of Appellant 

occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the remaining findings and the reassessed sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court