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 ad-
 judged 16 August 2017 by a general court-martial convened at Naval
 Station Mayport, Florida, consisting of officer members. Sentence ap-
 proved by convening authority: reduction to E-1, forfeiture of all pay
 and allowances, 1 confinement for six months, and a bad-conduct dis-
 charge.

 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


                         _________________________

        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 dis-
tributing 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 consider-
ation 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 inves-
tigating 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 appel-
lant’s residential address. The appellant was subsequently brought in for
questioning.
    On the date the appellant was brought in for questioning, he had previ-
ously planned to attend a medical appointment for his wife. The appellant’s
interview was conducted by a Naval Criminal Investigative Service (NCIS)




                                      2
                       United States v. Cobb, No. 201700356


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 in-
formed the appellant of his Article 31(b), UCMJ, rights by utilizing a stand-
ard 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 un-
derstanding 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 appel-
lant 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 applica-
tion. The appellant explained in detail the websites from which he had ob-
tained 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 appel-
lant 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 in-
criminating evidence. However, in his interview, the appellant acknowledged that he
had used a different cellular telephone that he no longer possessed to send and re-
ceive the messages and images with TomMcClain317.




                                           3
                     United States v. Cobb, No. 201700356


    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 state-
ment 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 Su-
preme 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 de-
termine 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 deter-
mination 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 eviden-
tiary 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 . . . conclusive-
ly 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)).


                                        4
                     United States v. Cobb, No. 201700356


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 rea-
sons: (1) because his TDC failed to move to suppress his incriminating state-
ment 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 defi-
cient 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 strate-
gy, 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 de-
ficient 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 fail-
ure to make a motion to suppress evidence, “an appellant must show that
there is a reasonable probability that such a motion would have been merito-
rious.” 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. Har-
pole, 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-




                                        5
                        United States v. Cobb, No. 201700356


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 influ-
ence, 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 circum-
stances must be examined to determine whether the appellant’s will was
over-borne. Id. Some factors relevant to the analysis include: age and educa-
tion 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 war-
fare 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.




                                                6
                      United States v. Cobb, No. 201700356


    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 consult-
ant submit for our consideration an affidavit attesting to such findings.
     Counsel can formulate reasonable trial strategies even if it means ignor-
ing 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 reliabil-
ity 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).




                                          7
                    United States v. Cobb, No. 201700356


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 substan-
tial 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




                                      8
