## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class JASON A. CLOSE United States Army, Appellant

ARMY 20140984

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill Jeffery R. Nance, Milit ary Judge (arraignment and motions hearing) Jeffrey W. Hart, Mil itary Judge (trial) Colonel Mark W. Seitseinger, Staff Judge Advo cate (pretrial)

Colonel David E. Mende lson, Staff Judge A dvocate (post-trial)

For Appellant: Captai n Michael A. Gold, JA (argued) ; Major Andres Vazquez, Jr., JA; Captain Michael A. Gold, JA (on br ief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain Kather ine L. DePaul, JA; Captain Michael A. Gold, JA (on reply brief); Captain Kather ine L. DePaul, JA; Captain Michael A. Gold, JA (on supplemental brief).

For Appellee: Captain Tara O’Brien Go ble, JA (argued); Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Cour ie, III, JA; Major A nne C. Hsieh, JA; Major Steve T. Nam, JA (on brief); Major Mi chael E. Korte, JA.

27 June 2017

-------------------------------------------------------------- MEMORANDUM OPINION ON FURTHER REVIEW

--------------------------------------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

PENLAND, Judge:

In this decision, prompt ed by appellant’s motion to reconsider, we conclude appellant’s trial defense team rendered ineffectiv e assistance of counsel, where the team did not move to suppress evidence obtained pursuant to a search warrant.

A military judge sitting as a general court-martial convicted appellant, contrary to his plea s, of two specifications of possessing child pornography, in violation of Article 134, Unif orm Code of Military Justic e, 10 U.S.C. § 934 (2012)CLOSE—ARMY 20140984

2 [hereinafter UCMJ]. 1 The military judge sentenced appellant to a dishonorable discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of E- 1. The convening authority approved only so much of the adjudged sentence as pr ovided for a dishonorable discharge, confinement for twenty-three months, forfeitures of all pa y and allowances, a nd reduction to the grade of E-1. Appellant wa s credited with si xty days against the sentence of

confinement.

This case is before us pursuant to appellant’s motion to reco nsider our summary disposition in United States v. Close , ARMY 20140984, 2017 CCA LEXIS 175 (Army Ct. Crim. App. 22 Ma r. 2017) (summ. disp.). 2 In their reconsideration motion, appellate defense couns el alleged ineffective assi stance of co unsel for the first time, writing:

Reconsideration is appropriate in light of the Court of Appeals for the Ar med Forces [CAAF] decision in United

States v. Nieto , [76 M.J. 101 (C.A.A .F. 2017)]. Trial

defense counsel’s failure to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residenc e as an unlawfu l search and seizure is a material legal and factual matter that was not previously briefed and was overlooked by this court in conducting its review under Ar ticle 66(c), Uniform Code of Military Justice (UCMJ).

BACKGROUND

On 29-30 November 2012 , appellant and Sergeant (SGT) AD were in the battalion area watching movies on appellan t’s laptop computer, which was connected to a projector. As appellant was called away for another dut y, he allowed SGT AD

to continue usin g the laptop to watch another movi e. While he l ooked for movies, SGT AD stumbled upon file la bels indicating their associ ated files contained child pornography (one of which started with “9 -year-old . . .”). Sergeant AD stopped what he was doing without vi ewing the content of the file s and alerted his leaders, who in turn referred the matter to law enforcement investigators.

1 Specification 1 involved appellant’s laptop and Specification 2 involved appellant’s digital card. Ad ditionally, appellant was acquitted of rape and forcible sodomy of a child under the age of twelve and two specifications of indecent acts

with a child.

2 We directed oral argument, wh ich we heard on 24 May 2017.CLOSE—ARMY 20140984

3 In a 30 November 2012 sw orn statement to a Criminal Investigation Command (CID) agent, SGT AD relayed what he had seen on ap pellant’s laptop. 3 CID Special Agent JH also interviewed ap pellant, but he did not ex amine the laptop. Based on SGT AD’s statement and appellant’s interview, SA JH prepared an affidavit on 30 November 2012 requesting a search warrant for appellant ’s residence in Lawton, Oklahoma. A federal magi strate judge issued the warrant the same day. 4 In pertinent part, the affidavit stated:

This office interviewed SGT [A D] . . . who st ated he and [appellant] were watching a m ovie on [appellant’s] laptop when [appellant] was instructed to report to the [First Sergeant]. SGT [AD] stated he finished the movie and attempted to find anothe r movie to watch from [appellant’s] hard drive and found a folder with “disturbing” names. SGT [AD] stated he beli eved the files contained child porn ography based off of their names and subsequently notified his platoon sergeant. (See attached Sworn Statement of SGT [AD])

This office interviewed [appella nt] who stated he knew he had “illegal pornography” on his computer bu t thought he deleted it all. [A ppellant] stated he was living with Ms. [AM] when she told him sh e downloaded “illegal child pornography” onto his laptop in order to blackmail him for $700. [Appellant] st ated he searched his computer and

found what he believed to be t housand’s of files including pictures and videos of “illegal pornography” containing girls “under 10 year s old”. [Appellant] stated he moved the files to a folder named “wipe” and deleted them through a program called “C Cleaner,” which deletes and

overwrites files but must ha ve missed some of the

“torents”.

This office was granted consen t by [appellant] to conduct a digital forensic examination of his personal Hewlett Packard laptop. However, [a ppellant] did no t consent to the collection and search of digital media at his quarters or on his person. [Appellant] in voked his legal rights and requested a lawyer.

3 We granted government appe llate counsel’s motion to attach SGT AD’s statement.

4 We granted defense appellat e counsel’s motion to attach the affidavit and warrant.CLOSE—ARMY 20140984

4 During the course of the interv iew, [appellant] stated that he currently resides in a tra iler house located at 40 NE 25th Street, Lot #61 , Lawton, 73507. He also stated during the interview that he is the only person residing in

the trailer house located at 40 NE 25th St reet, Lot #61, Lawton, 73507. Du ring the interv iew [appellant]

demonstrated a vast knowle dge of computer technology

and he even stated that he was “technically inclined”.

Based on my experience as a CID Special Agent, suspects treat their Child Pornographic media as prized possessions and rarely delete or destroy th e media. Furt her, based on my experience Forensic Com puter Examiners have great success in recovering images , which have been deleted by

the user from the unallocat ed space of a hard drive utilizing forensic software. Suspects are also known to keep images and/or videos on numerous external devices

for the ease of vi ewing the chil d pornography on different computers or devices.

It is imperative to the conclusion of this allegation that authorization be gran ted to conduct a se arch of computer systems including central proc essing units; internal and peripheral storage de vices such as fixed disks, external hard disks, fl oppy disk drives and diskettes, optional storage devices or other memory storage devices; compact disc, digital versatile discs; and all other digital media storage devices collected fr om [appellant’s] living

quarters.

And the seizure of : Computers, hard drives, CD’s, DVD’s, thumb drives, SD cards, cameras , PDA’s, cellular phones, all other digital storag e devices for te xt, graphics, images, multimedia files, electronic mail messages, and other data including deleted files and fo lders, containing

material related to the sexu al exploitation of minors; and/or material depicting apparent or purported minors engaged in sexually explicit conduct; and data and/or

information used to facil itate access t o, possession, distribution, and/or production of such materials.CLOSE—ARMY 20140984

5 Special Agent JH seized appellant’s laptop pursuant to appellant’s consent and searched his residence pursuant to the warrant. Special Agent JH seized from the residence “everything that was capable of storing digital media files.” This

included a Liteon de sktop computer and a secure digital ca rd [card] from a PlayStation device. Digital forensic ex amination (DFE) of the laptop and card revealed images and videos of child pornog raphy; similar examin ation of the desktop computer yielded numerous im ages of erotic child anim e and significant download activity over a long period of time with respect to these images (in other words, it was clear the numerous images had been ob tained via some sort of deliberate downloading).

In April 2013, before th e DFE was complete, CID interviewed Ms. AM, who described seeing child porn ography in the spring of 20 12 on appellant’s desktop computer, which was located in a residence they prev iously shared. Ms. AM

described the desk top as follows:

Regarding the desk-t op computer on which I found the kid porn, like I said, [app ellant] built it and it did not have side panels on it. It did have a giant . . . external storage device attached to the comput er. The tower might have been a Dell, and [appellant] to ok it with him when he got

his stuff and moved out. I have no idea where it is or

what was ever done with it. 5

Though appellant was not charged with possessing ch ild pornography on the desktop computer, the government notified appellant on 15 August 2014 of its intent

to introduce this evidence at trial under Military Rule of Evidence [hereinafter Mil. R. Evid.] 404(b). On 28 August 2014, ap pellant’s trial defe nse counsel filed a pretrial motion seeking to exclude this evidence of uncharged misconduct. The military judge acknowledged th e motion and government c ounsel’s response during a pretrial session on 15 Septem ber 2014; however, at the part ies’ request, he deferred ruling until trial wa s underway. The pleadings make clear Ms. AM’s expected testimony would be the source of this disputed evidence.

In another pretrial sess ion on 27 October 2014, appellan t stated his desire to be represented by his newly-re tained civilian defense c ounsel, JW, who was present and announced his qualifications. The milita ry judge repeated his intent to decide the uncharged misconduct issues “as those arise in trial, if they arise in trial.” Ultimately though, while she wa s included on the governme nt’s witness list, Ms. AM did not testify at the trial approximately six weeks later. Her absence essentially

mooted the defense’s uncha rged misconduct motion.

5 We granted government appe llate counsel’s motion to at tach Ms. AM’s statement.CLOSE—ARMY 20140984

6 The prosecution’s ca se was relatively straightforward, c onsisting largely of chain-of-custody testim ony and forensic testimony regarding items found on appellant’s laptop, card, a nd desktop. The la ptop and card cont ained images and videos of child pornogra phy, while the desktop com puter contained numerous images of child anime. The child porn ography on the lapt op was downloaded at approximately 1540 hours , 29 November 2012.

The military judge considered the evid ence from the laptop and card without any evidentiary li mitation. In contrast , he considered the ev idence from the desktop computer for limited purpose s: the anime images, wh ich “may be viewed as improper or [] somewhat similar to child pornogra phy, the procedures for downloading such images is likely similar to the procedures of download[ing] or accessing child por nography;” and found their presence on the desktop computer “highly probative as to whether [appellant] wrongfully possessed images on his

devices.”

The trial defense team di d not challenge the searc h, and neither the warrant

nor its associated affidavit were admitted at trial.

We granted appellate defe nse counsel’s motion to at tach an affidavit from appellant’s trial defense co unsel, Captain (CPT) JK, w ho wrote in pertinent part:

. . . I have been un able to speak to th e civilian defense counsel, Mr. [JW] . . . Altho ugh we contempl ated raising

the issue of an unreasonabl e search and seizure with respect to [SGT AD]’s initial search, I do not remember identifying any issues, or preparing any motion to suppress regarding the federal magistrate’s search warrant of appellant’s home or the underlying affidavit submitted by Special Agent [JH]. Our trial strategy . . . was to show that the government failed to prove that the possession was knowing and wrongful. Ha d we identified any issues with or thought to make a motion to suppress the evidence obtained from the appellant’s home based on the federal magistrate’s warrant and unde rlying affidavit we would

have done so.

We granted appellate gover nment counsel’s moti on to attach an affidavit from appellant’s civilian defense counsel, JW, who prepared an affidavit after CPT JK’s and wrote in pertinent part:

. . . I have spoken to milita ry defense counsel, CPT [JK]CLOSE—ARMY 20140984

7 In reviewing my case file, I found a document that was

titled “to do list” which included numer ous motions, to include a motion to suppress the search of the home based

on the search warrant issued on Novemb er 30, 2012. It is my recollection that myself and CPT [JK], in considering the motion to supp ress the search of the house based on the search warrant, also to ok into consid eration other evidence and statements that had been gathered by the investigation to include, mo st importantly, the statement from [AM] taken on April 11, 2 013. Within that statement Ms. [AM] had stated that in the spring of 2 012, before the accused moved out, he had al lowed Ms. [AM] to use an extra phone he had. Ms. [AM] stated that when she went to clean off the phone she di scovered numerous messages

and other items that had be en saved on the phone, to include what appeared to be numerous folders inside of folders in the phone. U pon opening th e phone she discovered what appeared to be suspicious pictures, some labeled “RAWR” containing what appeared to be hundreds, maybe even thousand s, of pictures of young

children who were naked and were posing or engaging in

sex-like acts of sexual intercourse. Based on the

additional evidence that had been discovered, to include the potential testim ony of Ms. [AM], my self and CPT [JK]

decided that the motion to su ppress might be successful

but that the evidence woul d have been inevitably discovered through th e testimony presen ted by Ms. [AM].

Therefore it is clear from our notes and the li st of motions

indicated that it was discus sed between myself and CPT [JK] that we do a motion to suppress the search of the

house but decided not to ba sed on other ev idence that would have led to discovery of the same evidence that had been seized through the warrant.

LAW AND DISCUSSION

“Claims of ineffective as sistance of counsel ar e reviewed de novo.” United

States v. Gooch , 69 M.J. 353, 362 (C.A .A.F. 2011) (internal citations omitted).

In evaluating allegations of ineffective assistance of counsel, we apply the

standard se t forth in Strickland v. Washington , 466 U.S. 668, 68 7 (1984). In

Strickland , the Supreme Court found that the Sixth Amendment entitles criminal

defendants to the “effective assistance of c ounsel”—that is, representation that doesCLOSE—ARMY 20140984

8 not fall “below an objectiv e standard of reasonableness ” in light of “prevailing professional norms.” Strickland , 466 U.S. at 68 6. Specifically in a case like appellant’s where a search and seizure occurred:

Where defense counsel’s fail ure to litigate a Fourth Amendment claim competently is the principa l allegation of ineffectiveness, the defend ant must also prove that his

Fourth Amendment claim is meri torious and that there is a reasonable prob ability that the verd ict would have been

different absent the excludab le evidence in order to demonstrate actual prejudice.

Kimmelman v. Morrison , 477 U.S. 365, 376 (1986).

Inquiry into an attorney’s representation must be “highly deferential” to the attorney’s performan ce and employ “a strong presump tion” that coun sel’s conduct

falls within the wide ra nge of professionally competent assistance. Id . at 688-89;

see United States v. Premo , 562 U.S. 115, 123 (2011) (“The Court of Appeals was wrong to accord scant deferenc e to counsel’s judg ement. . . .”). Our superior court has applied this standard to courts-martial, no ting that to prevail on a claim of ineffective assistance of counsel, an appe llant must demonstrate: 1) that his counsel’s performance was deficient; and 2) that this defici ency resulted in prejudice. United States v. Green , 68 M.J. 360, 361-62 (C .A.A.F. 2010) (citing

Strickland , 466 U.S. at 687; United States v. Mazza , 67 M.J. 470, 474 (C.A.A.F. 2009)).

We judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, vi ewed as of the time of counsel’s conduct. Strickland , 466 U.S. at 690. In making that determ ination, we consider the totality of the circumstances, bearing in mind “counsel’s func tion, as elaborated in prev ailing professional norms, is to make the adversarial testing process work . . . [and] recogn ize that counsel is strongly presumed to have rendered adeq uate assistance and made all significant

decisions in the exerci se of reasonable prof essional judgment.” Id

.

By not filing a motion to suppress th e evidence describe d above, the trialdefense team waived a complaint regarding its admissibility. Rule for CourtsMartial [hereinafter R.C.M.] 905(b)(3) (motio ns to suppress evidence shall be made before entry of pleas); R.C.M. 905(e) (failure to timely file a motion to suppress

evidence constitutes waiver , absent good cause shown to the military judge, who may grant relief fr om the waiver).

Appellate defense counsel indi cated at oral argument that Nieto’s publication prompted their focus on the se arch issue in this case. On the related issue of

whether Nieto broke new ground in se arch and seizure jurisprudence, appellateCLOSE—ARMY 20140984

9 defense counsel essentially co nceded that it did not. We agree and emphasize that,

had Nieto established a new legal principle in 2017, it would be manifestly unreasonable to upend th e result of a crimin al trial because tria l defense counsel did not account for that ye t-unknown principle in 2014. Instead, just as the trial defense team failed to correctly iden tify the constituti onal issues presen ted by the search warrant in this case, so too did the appell ate defense team unt il our superior court reminded practitioners of ex tant fundamental constitut ional protections against

unreasonable search and seizur e. Specifically, as in th is case, “a [law enforcement officer’s] profile alone wi thout specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable ca use to search[.]”

Nieto , 76 M.J. at 106 (quoting United States v. Macomber , 67 M.J. 214, 220 (C.A.A.F. 2009)).

Mindful of our duty to give great deference to reasoned, tactical decisions of defense counsel at trial, 6 we can find no so und rationale in either CPT JK’s or JW’s affidavit. Captain JK does not recall iden tifying an issue with the search warrant. JW’s affidavit, on the other hand, offers a rather muddled and ultimately unhelpful

recollection of his reas on for not filing a suppression motion. His affi davit seems to conflate the concept of inev itable discovery—which the reco rd in this case does not support—with the idea that the factfinder was going to hear Ms. AM’s testimony anyway. In fact, Ms. AM’s te stimony in this case was far from inevitable. First, the

defense moved to exclud e it; and, second, the government did not cal l her to testify. Considering these affidavits in light of the warrant appli cation’s lack of showing any particularized “nexus” between appellan t’s laptop and his other digital media devices, we conclude the trial defense team was deficient.

We further conclude appellant has ca rried his burden in establishing a reasonable prob ability that, absent the deficiency , his trial would have yielded a substantially more favorable result with respect to the second child pornography specification. Based on fund amental Fourth Amendment principles, including the requirement that a search warrant must be an chored in probab le cause to find

evidence of a crime in the place to be searched, 7 we are confident the military judge would have granted a defense motion to suppress the results of the search and

seizure in this case. See United States v. Jameson , 65 M.J. 160 (C.A.A.F. 2007) (“[T]he decisional issue is wh ether Appellant has carried hi s burden to show that his

counsel would have been successful if he had filed a timely motion preventing the admission of [the evidence].”). Howeve r, we disagree with appellate defense counsel’s argument to the effect that, withou t the evidence gained from the search of

6 See Premo , 562 U.S. at 123.

7 See United States v. Hester , 47 M.J. 461, 463 (C.A.A.F. 1998); United States v. Clayton , 68 M.J. 419, 424 (C.A.A.F. 2010).CLOSE—ARMY 20140984

10 his home, appellant would have likely been acqu itted of knowingly and wrongfully possessing child porn ography on his laptop, which wa s downloaded the day before

the search occurred.

CONCLUSION

The finding of guilty of Specification 2 of Charge III is set aside and that Specification is DISMISSED. The rema ining finding of gui lty is affirmed.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

United States v. Sales , 22 M.J. 305 (C.M.A. 1986). We are conf ident that based on the entire record and the child pornogra phy appellant knowin gly and wrongfully possessed on his la ptop, the military judge wo uld have imposed a se ntence of at least that which was approved by the conveni ng authority and acco rdingly we AFFIRM

the sentence.

We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are

ordered restored.

Senior Judge CAMPANELLA an d Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: