United States v. Cobb, 201700356

Background

Appellant was charged and convicted under Article 134, UCMJ, for receiving and distributing child pornography via a mobile messaging app traced to his IP address.
HSI/NCIS investigation traced exchanges between user TomMcClain317 and Karu961; Karu961’s IP resolved to appellant’s residence.
Appellant was interviewed by NCIS and HSI, informed of Article 31(b) and Miranda rights, read and initialed the warnings, and waived them; interview lasted ~1 hour 40 minutes and was recorded.
During the interview appellant admitted being Karu961, described websites and methods used to obtain and exchange images, and consented to a forensic exam of his phone (which later showed no incriminating evidence).
Post-trial, appellant submitted affidavits claiming his confession was false and involuntary (he said he confessed to end the interview and attend his wife’s medical appointment) and that the appointed psychiatric expert, who attended trial, was not called.
Appellant raised a single ineffective-assistance claim under Grostefon, arguing (1) counsel failed to move to suppress his statement as involuntary and (2) counsel failed to call the appointed psychiatric expert to impeach the statement.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether counsel was ineffective for failing to move to suppress the statement as involuntary	Appellant: statement was false/involuntary; would have been suppressed	Government: record shows voluntary waiver, well-advised, no coercion, short neutral interview; no basis for suppression	Denied — no reasonable probability a suppression motion would have succeeded
Whether counsel was ineffective for not calling the appointed psychiatric expert to challenge the statement	Appellant: expert found him "pliable and prone to stress," would have undermined credibility	Government: no record evidence of such expert findings; counsel’s tactical choice reasonable and, even if defective, no prejudice shown	Denied — appellant failed to show reasonable probability expert testimony would change outcome
Whether post-trial affidavits required further factfinding (evidentiary hearing)	Appellant: affidavits raised factual dispute about voluntariness and expert findings	Government: affidavits largely conclusory/speculative and record conclusively refutes relief	Denied — no further factfinding required; record conclusively shows no relief warranted
Whether appellant demonstrated prejudice under Strickland standard	Appellant: would have been reasonable probability of different result with suppression or expert testimony	Government: statement contained detailed, independently verifiable facts; no reasonable probability of different verdict	Denied — no Strickland prejudice shown

Key Cases Cited

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1992) (framework for raising ineffective-assistance claims on appeal)
Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance standard: deficiency and prejudice)
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) (standard for ordering post-trial factfinding)
United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (prejudice requirement when suppression motion not filed)
United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (deference to reasonable tactical decisions by counsel)
United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (standards on counsel performance and tactical choices)
United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996) (voluntariness/confession analysis)
United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2008) (factors for voluntariness under totality of circumstances)
United States v. Harpole, 77 M.J. 231 (C.A.A.F. 2018) (de novo review of ineffective-assistance claims)