This opinion is subject to administrative correction before final disposition.

United States Navy-Marine Corps

Court of Criminal Appeals

Before

WOODARD, HITESMAN, and ATTANASIO

Appellate Military Judges.

_________________________

UNITED STATES

Appellee

v.

Calvin J. COBB

Aviation Electronics Technician Third Class (E-4), U.S. Navy

Appellant

No. 201700356

Decided: 20 May 2019.

Appeal from the United States Navy-Marine Corps Trial Judiciary, 

Military Judge: Captain Robert J. Crow, JAGC, USN. Sentence adjudged 16 August 2017 by a general court-martial convened at Naval 

Station Mayport, Florida, consisting of officer members. Sentence approved by convening authority: reduction to E-1, forfeiture of all pay 

and allowances,1 confinement for six months, and a bad-conduct discharge. 

For Appellant: Lieutenant Commander Jeremy J. Wall, JAGC, USN.

For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN; Captain 

Sean M. Monks, USMC.

Chief Judge WOODARD delivered the opinion of the Court, in which 

Judges HITESMAND and ATTANASIO joined.

 

1 As an act of clemency, the convening authority suspended all forfeitures. 
United States v. Cobb, No. 201700356

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under NMCCA 

Rule of Appellate Procedure 30.2.

_________________________

WOODARD, Chief Judge:

The appellant was convicted, contrary to his pleas, of receiving and distributing child pornography, in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2016). Pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1992), he raises a single assignment of error

alleging his trial defense counsel (TDC) was deficient. After careful consideration of the record of trial and the pleadings of the parties, we find no error 

materially prejudicial to the substantial rights of the appellant and affirm 

the findings and sentence. 

I. BACKGROUND

In September 2015, Homeland Security Investigations (HSI) began investigating a mobile messaging application account holder with the user name of

TomMcClain317 for sending and receiving child pornography. HSI agents 

were able to trace the TomMcClain317 account to an individual named 

Travis Spradlin. On 29 September 2015, HSI agents obtained and executed a 

warrant to search Mr. Spradlin’s home. The search resulted in the seizure of 

multiple electronic media storage devices and several cellular telephones. 

The forensic examination of one of the seized cellular telephones revealed

messages and image files that Mr. Spradlin had exchanged with another 

mobile messaging application account holder utilizing the user name

Karu961. Of the images exchanged between Mr. Spradlin and Karu961, 

many were of child pornography. HSI agents were able to trace the Karu961 

user name to an internet protocol (IP) address associated with at the appellant’s residential address. The appellant was subsequently brought in for 

questioning. 

On the date the appellant was brought in for questioning, he had previously planned to attend a medical appointment for his wife. The appellant’s 

interview was conducted by a Naval Criminal Investigative Service (NCIS)
United States v. Cobb, No. 201700356

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and an HSI agent. Before questioning began, the agents made it clear to the 

appellant that he was not under arrest or charged with a crime at that time. 

The appellant was, however, made aware that he was suspected of “use, 

possession, [and] distribution of child pornography.”2 The NCIS agent informed the appellant of his Article 31(b), UCMJ, rights by utilizing a standard Acknowledgment of Rights form. To ensure that the appellant understood 

his Article 31(b), UCMJ, rights, the NCIS agent had the appellant read aloud 

each right and place his initials after each right if he understood the right. 

The appellant did so indicating that he understood each Article 31(b), UCMJ, 

right—including his right to remain silent, his right to an attorney, and his 

right to terminate the interview at any time for any reason.

3 The appellant 

then waived his Article 31(b), UCMJ, rights and agreed to speak with the 

agents. Additionally, the HSI agent informed the appellant of his Miranda 

rights. The appellant again acknowledged that he understood his Miranda 

rights—to include his right to remain silent, right to an attorney, and to stop 

the questioning at any time—and signed a separate form indicating his understanding and waiver of his Miranda rights.4

The interview was digitally recorded and a redacted version was entered 

into evidence as Prosecution Exhibit 6. Throughout the interview the appellant answered the agents’ questions—never invoking his right to remain 

silent or to terminate the interview. During the interview, the appellant 

admitted that he was Karu961, and that he had exchanged messages and 

child pornography with TomMcClain317 over the mobile messaging application. The appellant explained in detail the websites from which he had obtained the child pornography he sent to TomMcClain317; described the steps 

he took to begin messaging with TomMcClain317; and explained the method 

by which he exchanged the child pornography images and his motivations for 

doing so. At the end of the questioning, the agents requested and the appellant consented to a forensic examination of his cellular telephone.5

 

2 Prosecution Exhibit (PE) 6, Recording of NCIS Interview, at 8:06.

3 Id. at 9:25 (emphasis added).

4 Id. at 8:06.

5 The forensic examination of the appellant’s cellular telephone revealed no incriminating evidence. However, in his interview, the appellant acknowledged that he 

had used a different cellular telephone that he no longer possessed to send and receive the messages and images with TomMcClain317. 
United States v. Cobb, No. 201700356

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On appeal, the appellant submitted two post-trial sworn affidavits for 

consideration by this Court alleging for the first time that his statement to 

the NCIS and HSI agents was false and involuntary. The first affidavit,

written by the appellant, asserts that he gave a false confession in order to 

end the interview so that he could attend his wife’s medical appointment. The 

second affidavit, written by the appellant’s wife, states that the appellant told 

her he falsely confessed in an effort to get to her medical appointment. She 

also complains that the appellant’s appointed psychiatric expert consultant, 

who had evaluated the appellant and who attended the trial, was never 

called to testify. 

II. DISCUSSION

In his sole assignment of error the appellant complains that his TDC was 

ineffective for failing to challenge the admissibility of the appellant’s statement to the NCIS and HSI agents. We review claims of ineffective assistance 

of counsel de novo. United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 

2018). In conducting our analysis, we look to the test outlined by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to 

prevail on a claim of ineffective assistance of counsel, “an appellant must 

demonstrate both (1) that his counsel’s performance was deficient, and 

(2) that his deficiency resulted in prejudice.” United States v. Green, 68 M.J. 

360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687). The appellant 

bears the “burden of establishing the truth of factual matters relevant to the

claim.” Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 

U.S. 904 (2009). 

A. Further Fact-Finding Not Required

After considering the record and the affidavits provided, we must first determine if additional factfinding is necessary to resolve the appellant’s claim 

of ineffective assistance of counsel. We conclude that additional factfinding is 

not necessary.

“If there is a factual dispute on a matter pertinent to [a] claim, the determination as to whether further factfinding will be ordered is resolved under

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).” Id. “[A] post-trial evidentiary hearing . . . is not required in any case simply because an affidavit is 

submitted by an appellant.” Ginn 47 M.J. at 248. Adapting the rule utilized 

by federal civilian courts, the Court of Appeals for the Armed Forces (CAAF)

held that a factfinding hearing “need not be ordered if an appellate court can 

conclude that ‘the motion and the files and records of the case . . . conclusively show that [an appellant] is entitled to no relief.’” Id. at 244 (alterations in 

original) (quoting United States v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986)). 
United States v. Cobb, No. 201700356

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In this case, the affidavits consist primarily of “speculative and conclusory 

observations” and the few facts alleged therein “allege an error that would 

not result in relief even if any factual dispute were resolved in appellant’s 

favor.” Ginn 47 M.J. at 248. We conclude that the record “conclusively 

show[s] that [the appellant] is entitled to no relief.” Id. at 244. Accordingly, 

further factfinding is not necessary.

B. Ineffective Assistance of Counsel

The appellant asserts that his TDC was ineffective for two related reasons: (1) because his TDC failed to move to suppress his incriminating statement on voluntariness grounds, and (2) because his TDC did not offer the 

testimony of the appointed expert at trial to challenge the reliability of his 

statement. 

In analyzing Strickland’s first prong, an attorney’s representation is deficient when it falls “below an objective standard of reasonableness.” United 

States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (citing Wiggins v. Smith, 

539 U.S. 510, 521 (2003)). Deficiency is not based on the success of the strategy, but rather the reasonableness of the strategy. Id. “[C]ourts ‘must indulge 

a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.’ ” United States v. Datavs, 71 M.J. 420, 

424 (C.A.A.F. 2012) (quoting Strickland, 466 U.S. at 689). Our scrutiny of 

TDC’s performance is “highly deferential,” as counsel have “wide latitude . . . 

in making tactical decisions.” Strickland, 466 U.S. at 689. 

However, we need not determine “whether counsel’s performance was deficient before examining the prejudice suffered by the [appellant] as a result

of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim 

on the ground of lack of sufficient prejudice, that course should be followed.” 

Id. at 697. When an ineffective assistance of counsel claim is based on a failure to make a motion to suppress evidence, “an appellant must show that 

there is a reasonable probability that such a motion would have been meritorious.” United States v. McConnell, 55 M.J. 479, 482 (2001) (quoting United 

States v. Napoleon, 46 M.J. 279, 284 (1997)); see also United States v. Harpole, 77 M.J. 231, 236 (2018).

1. Motion to suppress statement to the NCIS and HSI agents

The appellant fails to meet his burden of showing a motion to suppress 

his statement on voluntariness grounds would have been meritorious. Alt-
United States v. Cobb, No. 201700356

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hough appellant states in his affidavit that “[his] admission during [his] 

interview with NCIS was not voluntary,”6 we find the record overwhelmingly 

controverts this claim. To be voluntary, confessions must be “the product of 

an essentially free and unconstrained choice by its maker.” United States v. 

Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996). “A confession is involuntary, and 

thus inadmissible, if it was obtained ‘in violation of the self-incrimination 

privilege or due process clause of the Fifth Amendment to the Constitution of 

the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement.’” United States v. Freeman, 65 M.J. 451, 453 

(C.A.A.F. 2008) (quoting MILITARY RULE OF EVIDENCE 304(a)(1)(A), MANUAL 

FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)). The totality of the circumstances must be examined to determine whether the appellant’s will was 

over-borne. Id. Some factors relevant to the analysis include: age and education of the appellant; whether the appellant was advised of his rights; length 

of detention; nature of the questioning; use of physical punishment; and use 

of lies, threats, or promises. Id. at 453-54. 

The appellant was a 24-year-old high-school graduate when questioned by

the agents. As a third class petty officer with seven years of service in the 

United States Navy, he had successfully completed multiple service schools

and ratings qualifications—including being qualified as an enlisted air warfare specialist. At the time the appellant made the statement, he was not 

under any form of restraint or detention. The questioning was of relatively 

short duration—approximately one hour and forty minutes. Prior to making 

the statement, the appellant was advised of not only his Article 31(b), UCMJ, 

rights, but also his Miranda rights. He affirmed that he understood these 

rights and affirmatively waived them. Review of the recorded interrogation 

reveals the agents were well-mannered when questioning the appellant. They 

did not lie, threaten, or promise anything to the appellant. Further—despite 

knowing that his wife was expecting him to accompany her to her medical 

appointment and knowing that he had the right to terminate the questioning 

at any time—at no point during the questioning did the appellant ask to end 

the questioning. No facts in the affidavits or our review of the record below

suggest the statement was involuntary. The appellant’s assertion that his 

confession was false and not voluntary is his own subjective and self-serving

opinion. “Without more, appellant has failed to show a reasonable probability 

that a motion to suppress this evidence would have been meritorious.” 

McConnell, 55 M.J. at 482.

 

6 Affidavit of Appellant of 2 Apr. 2018.
United States v. Cobb, No. 201700356

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2. Use of expert witness to challenge the credibility of the appellant’s 

statement

The appellant avers that his TDC’s failure to call the expert consultant as 

a witness at trial to challenge the credibility of his statement to the agents 

amounts to deficient performance. We disagree.

The appellant asserts in his brief that his appointed psychiatric expert 

consultant had found him to be “unusually pliable and prone to stress.”7

Aside from the assertion of the appellant’s wife in her affidavit, there is no 

evidence in the record of such findings by the expert consultant. The expert 

consultant never testified during the trial process, nor did the expert consultant submit for our consideration an affidavit attesting to such findings.

Counsel can formulate reasonable trial strategies even if it means ignoring experts “whose insight might possibly have been useful.” United States v. 

Akbar, 74 M.J. 364, 381 (C.A.A.F. 2015) (citing Harrington v. Richter, 562 

U.S. 86, 107 (2011)). “Defense counsel do not perform deficiently when they 

make a strategic decision to accept a risk or forego a potential benefit, where 

it is objectively reasonable to do so.” United States v. Datavs, 71 M.J. 420, 424 

(C.A.A.F. 2012)

However, we need not determine whether TDC’s strategy was objectively 

reasonable. Even assuming, arguendo, that the expert consultant did find the

appellant to have a pliable nature and was prone to stress and that his TDC 

had no objectively reasonable strategy for not calling the expert to testify, the 

appellant fails to demonstrate any prejudice. The appellant has failed to 

demonstrate a reasonable probability that had his TDC called the expert at 

trial, “the panel members would have harbored a reasonable doubt respecting 

guilt.” Datavs, 71 M.J. at 425; see also Akbar, 74 M.J. at 371-72. We will not

speculate as to which parts of the appellant’s statement the expert would 

assert are unreliable or how the appellant’s pliable nature and level of stress

impacted his statement. In contrast, we observe numerous indicia of reliability throughout his statement. The appellant’s statement included significant, 

specific details that would require independent knowledge of facts of the 

offenses not mentioned by the agents, such as the websites from which a 

number of child pornography images were obtained and the manner in which 

the appellant first sought out TomMcClain317. Given these facts, we are 

confident that there is no reasonable probability that the expert testimony 

 

7 Appellant Brief of 4 Apr 2018 at 8 (citing to Affidavit of appellant’s wife of 2 

Apr. 2018).
United States v. Cobb, No. 201700356

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now desired by the appellant would have altered the members’ verdicts or the 

punishment they imposed.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the approved findings and sentence are correct in 

law and fact and that no error materially prejudicial to appellant’s substantial rights occurred. Arts. 59 and 66, UCMJ. Accordingly, the findings and 

sentence as approved by the convening authority are AFFIRMED.

Judge HITESMAN and Judge ATTANASIO concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court