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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

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       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.

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         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.




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       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.

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      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]


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             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
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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 Courts-
Martial [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
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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).

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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
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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