UNITED STATES ARMY COURT 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, Military Judge (arraignment and motions hearing) 

Jeffrey W. Hart, Military Judge (trial) 

Colonel Mark W. Seitseinger, Staff Judge Advocate (pretrial) 

Colonel David E. Mendelson, Staff Judge Advocate (post-trial) 

For Appellant: Captain Michael A. Gold, JA (argued); Major Andres Vazquez, Jr., 

JA; Captain Michael A. Gold, JA (on brief); Lieutenant Colonel Melissa R. 

Covolesky, JA; Captain Katherine L. DePaul, JA; Captain Michael A. Gold, JA (on 

reply brief); Captain Katherine L. DePaul, JA; Captain Michael A. Gold, JA (on 

supplemental brief). 

For Appellee: Captain Tara O’Brien Goble, JA (argued); Colonel Mark H. 

Sydenham, JA; Lieutenant Colonel A.G. Courie, III, JA; Major Anne C. Hsieh, JA; 

Major Steve T. Nam, JA (on brief); Major Michael E. Korte, JA. 

27 June 2017 

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

MEMORANDUM OPINION ON FURTHER REVIEW 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge: 

 In this decision, prompted by appellant’s motion to reconsider, we conclude 

appellant’s trial defense team rendered ineffective 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 pleas, of two specifications of possessing child pornography, in 

violation of Article 134, Uniform Code of Military Justice, 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 provided for a dishonorable discharge, confinement for 

twenty-three months, forfeitures of all pay and allowances, and reduction to the 

grade of E-1. Appellant was credited with sixty days against the sentence of 

confinement. 

This case is before us pursuant to appellant’s motion to reconsider our 

summary disposition in United States v. Close, ARMY 20140984, 2017 CCA LEXIS 

175 (Army Ct. Crim. App. 22 Mar. 2017) (summ. disp.).2 In their reconsideration 

motion, appellate defense counsel alleged ineffective assistance of counsel for the 

first time, writing: 

Reconsideration is appropriate in light of the Court of 

Appeals for the Armed 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 residence as an unlawful 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 Article 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 appellant’s laptop computer, which was connected 

to a projector. As appellant was called away for another duty, he allowed SGT AD 

to continue using the laptop to watch another movie. While he looked for movies, 

SGT AD stumbled upon file labels indicating their associated files contained child 

pornography (one of which started with “9-year-old . . .”). Sergeant AD stopped 

what he was doing without viewing the content of the files 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. Additionally, 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, which we heard on 24 May 2017. 
CLOSE—ARMY 20140984 

3

 In a 30 November 2012 sworn statement to a Criminal Investigation Command 

(CID) agent, SGT AD relayed what he had seen on appellant’s laptop.3

 CID Special 

Agent JH also interviewed appellant, but he did not examine 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 magistrate judge issued the warrant the same day.4

 In 

pertinent part, the affidavit stated: 

This office interviewed SGT [AD] . . . who stated he and 

[appellant] were watching a movie 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 another movie to watch from 

[appellant’s] hard drive and found a folder with 

“disturbing” names. SGT [AD] stated he believed the files 

contained child pornography based off of their names and 

subsequently notified his platoon sergeant. (See attached 

Sworn Statement of SGT [AD]) 

This office interviewed [appellant] who stated he knew he 

had “illegal pornography” on his computer but thought he 

deleted it all. [Appellant] stated he was living with Ms. 

[AM] when she told him she downloaded “illegal child 

pornography” onto his laptop in order to blackmail him for 

$700. [Appellant] stated he searched his computer and 

found what he believed to be thousand’s of files including 

pictures and videos of “illegal pornography” containing 

girls “under 10 years 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 have missed some of the 

“torents”. 

This office was granted consent by [appellant] to conduct 

a digital forensic examination of his personal Hewlett 

Packard laptop. However, [appellant] did not consent to 

the collection and search of digital media at his quarters or 

on his person. [Appellant] invoked his legal rights and 

requested a lawyer. 

 

3

 We granted government appellate counsel’s motion to attach SGT AD’s statement. 

4

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

4

During the course of the interview, [appellant] stated that 

he currently resides in a trailer 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 Street, Lot #61, 

Lawton, 73507. During the interview [appellant] 

demonstrated a vast knowledge 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 the media. Further, based on 

my experience Forensic Computer Examiners have great 

success in recovering images, which have been deleted by 

the user from the unallocated 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 viewing the child pornography on different 

computers or devices. 

It is imperative to the conclusion of this allegation that 

authorization be granted to conduct a search of computer 

systems including central processing units; internal and 

peripheral storage devices such as fixed disks, external 

hard disks, floppy 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 from [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 storage devices for text, graphics, 

images, multimedia files, electronic mail messages, and 

other data including deleted files and folders, containing 

material related to the sexual exploitation of minors; 

and/or material depicting apparent or purported minors 

engaged in sexually explicit conduct; and data and/or 

information used to facilitate access to, 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 desktop computer and a secure digital card [card] from a 

PlayStation device. Digital forensic examination (DFE) of the laptop and card 

revealed images and videos of child pornography; similar examination of the desktop 

computer yielded numerous images of erotic child anime 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 obtained via some sort of deliberate 

downloading). 

 In April 2013, before the DFE was complete, CID interviewed Ms. AM, who 

described seeing child pornography in the spring of 2012 on appellant’s desktop 

computer, which was located in a residence they previously shared. Ms. AM 

described the desktop as follows: 

Regarding the desk-top computer on which I found the kid 

porn, like I said, [appellant] built it and it did not have 

side panels on it. It did have a giant . . . external storage 

device attached to the computer. The tower might have 

been a Dell, and [appellant] took 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 child 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, appellant’s trial defense counsel filed a 

pretrial motion seeking to exclude this evidence of uncharged misconduct. The 

military judge acknowledged the motion and government counsel’s response during a 

pretrial session on 15 September 2014; however, at the parties’ request, he deferred 

ruling until trial was underway. The pleadings make clear Ms. AM’s expected 

testimony would be the source of this disputed evidence. 

 In another pretrial session on 27 October 2014, appellant stated his desire to 

be represented by his newly-retained civilian defense counsel, JW, who was present 

and announced his qualifications. The military judge repeated his intent to decide 

the uncharged misconduct issues “as those arise in trial, if they arise in trial.” 

Ultimately though, while she was included on the government’s witness list, Ms. AM 

did not testify at the trial approximately six weeks later. Her absence essentially 

mooted the defense’s uncharged misconduct motion. 

 

5

 We granted government appellate counsel’s motion to attach Ms. AM’s statement. 
CLOSE—ARMY 20140984 

6

 The prosecution’s case was relatively straightforward, consisting largely of 

chain-of-custody testimony and forensic testimony regarding items found on 

appellant’s laptop, card, and desktop. The laptop and card contained images and 

videos of child pornography, while the desktop computer contained numerous 

images of child anime. The child pornography on the laptop was downloaded at 

approximately 1540 hours, 29 November 2012. 

 The military judge considered the evidence from the laptop and card without 

any evidentiary limitation. In contrast, he considered the evidence from the desktop 

computer for limited purposes: the anime images, which “may be viewed as 

improper or [] somewhat similar to child pornography, the procedures for 

downloading such images is likely similar to the procedures of download[ing] or 

accessing child pornography;” and found their presence on the desktop computer 

“highly probative as to whether [appellant] wrongfully possessed images on his 

devices.” 

 The trial defense team did not challenge the search, and neither the warrant 

nor its associated affidavit were admitted at trial. 

 We granted appellate defense counsel’s motion to attach an affidavit from 

appellant’s trial defense counsel, Captain (CPT) JK, who wrote in pertinent part: 

. . . I have been unable to speak to the civilian defense 

counsel, Mr. [JW] . . . Although we contemplated raising 

the issue of an unreasonable 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. Had 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 underlying affidavit we would 

have done so. 

 We granted appellate government counsel’s motion 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 military 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 numerous motions, to 

include a motion to suppress the search of the home based 

on the search warrant issued on November 30, 2012. It is 

my recollection that myself and CPT [JK], in considering 

the motion to suppress the search of the house based on 

the search warrant, also took into consideration other 

evidence and statements that had been gathered by the 

investigation to include, most importantly, the statement 

from [AM] taken on April 11, 2013. Within that statement 

Ms. [AM] had stated that in the spring of 2012, before the 

accused moved out, he had allowed Ms. [AM] to use an 

extra phone he had. Ms. [AM] stated that when she went 

to clean off the phone she discovered numerous messages 

and other items that had been saved on the phone, to 

include what appeared to be numerous folders inside of 

folders in the phone. Upon opening the phone she 

discovered what appeared to be suspicious pictures, some 

labeled “RAWR” containing what appeared to be 

hundreds, maybe even thousands, 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 testimony of Ms. [AM], myself and CPT [JK] 

decided that the motion to suppress might be successful 

but that the evidence would have been inevitably 

discovered through the testimony presented by Ms. [AM]. 

Therefore it is clear from our notes and the list of motions 

indicated that it was discussed between myself and CPT 

[JK] that we do a motion to suppress the search of the 

house but decided not to based on other evidence that 

would have led to discovery of the same evidence that had 

been seized through the warrant. 

LAW AND DISCUSSION 

“Claims of ineffective assistance of counsel are 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 set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). In 

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

defendants to the “effective assistance of counsel”—that is, representation that does 
CLOSE—ARMY 20140984 

8

not fall “below an objective standard of reasonableness” in light of “prevailing 

professional norms.” Strickland, 466 U.S. at 686. Specifically in a case like 

appellant’s where a search and seizure occurred: 

Where defense counsel’s failure to litigate a Fourth 

Amendment claim competently is the principal allegation 

of ineffectiveness, the defendant must also prove that his 

Fourth Amendment claim is meritorious and that there is a 

reasonable probability that the verdict would have been 

different absent the excludable 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 performance and employ “a strong presumption” that counsel’s conduct 

falls within the wide range 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 deference to counsel’s judgement. . . .”). Our superior court 

has applied this standard to courts-martial, noting that to prevail on a claim of 

ineffective assistance of counsel, an appellant must demonstrate: 1) that his 

counsel’s performance was deficient; and 2) that this deficiency 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, viewed as of the time of counsel’s conduct. Strickland, 466 U.S. 

at 690. In making that determination, we consider the totality of the circumstances, 

bearing in mind “counsel’s function, as elaborated in prevailing professional norms, 

is to make the adversarial testing process work . . . [and] recognize that counsel is 

strongly presumed to have rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment.” Id.

 

 By not filing a motion to suppress the evidence described above, the trial 

defense team waived a complaint regarding its admissibility. Rule for CourtsMartial [hereinafter R.C.M.] 905(b)(3) (motions 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 from the waiver). 

 Appellate defense counsel indicated at oral argument that Nieto’s publication 

prompted their focus on the search issue in this case. On the related issue of 

whether Nieto broke new ground in search and seizure jurisprudence, appellate 
CLOSE—ARMY 20140984 

9

defense counsel essentially conceded 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 the result of a criminal trial because trial defense counsel did 

not account for that yet-unknown principle in 2014. Instead, just as the trial defense 

team failed to correctly identify the constitutional issues presented by the search 

warrant in this case, so too did the appellate defense team until our superior court 

reminded practitioners of extant fundamental constitutional protections against 

unreasonable search and seizure. Specifically, as in this case, “a [law enforcement 

officer’s] profile alone without specific nexus to the person concerned cannot 

provide the sort of articulable facts necessary to find probable cause 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 sound rationale in either CPT JK’s or JW’s 

affidavit. Captain JK does not recall identifying an issue with the search warrant. 

JW’s affidavit, on the other hand, offers a rather muddled and ultimately unhelpful 

recollection of his reason for not filing a suppression motion. His affidavit seems to 

conflate the concept of inevitable discovery—which the record 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 testimony in this case was far from inevitable. First, the 

defense moved to exclude it; and, second, the government did not call her to testify. 

Considering these affidavits in light of the warrant application’s lack of showing any 

particularized “nexus” between appellant’s laptop and his other digital media 

devices, we conclude the trial defense team was deficient. 

 We further conclude appellant has carried his burden in establishing a 

reasonable probability that, absent the deficiency, his trial would have yielded a 

substantially more favorable result with respect to the second child pornography 

specification. Based on fundamental Fourth Amendment principles, including the 

requirement that a search warrant must be anchored in probable 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 whether Appellant has carried his burden to show that his 

counsel would have been successful if he had filed a timely motion preventing the 

admission of [the evidence].”). However, we disagree with appellate defense 

counsel’s argument to the effect that, without 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 acquitted of knowingly and wrongfully 

possessing child pornography on his laptop, which was 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 remaining finding of guilty is affirmed. 

We are able to reassess the sentence on the basis of the error noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated 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 confident that based on 

the entire record and the child pornography appellant knowingly and wrongfully 

possessed on his laptop, the military judge would have imposed a sentence of at least 

that which was approved by the convening authority and accordingly we AFFIRM 

the sentence. 

We find this reassessed sentence is not only purged of any error but is also 

appropriate. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings set aside by our decision, are 

ordered restored. 

Senior Judge CAMPANELLA and Judge HERRING concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: