Motions and IAC

The “unit’ of possession for a CP prosecution is the container–a computer, a cellphone, or a plug-in drive, each is a separate unit.

Everything in the one unit must be charged as only one specification.

The Army Court of Criminal Appeals decided United States v. Mobley on 22 June 2018.

This was a guilty plea case. On appeal, the issue came up of multiplicity for findings. Appellant argued that the military judge erred in failing to merge some specifications and Appellee countered that the unconditional guilty plea waived the issue. The Court found some of the specifications to be multiplicious, merged them, and affirmed the sentence. (It is not clear from the opinion if the military judge merged the specifications for sentencing using the Quiroz analysis. The legal effect was to reduce Appellant’s sentence exposure from 20 to 10 years. He was sentenced to 11 months, further reduced because of a pretrial agreement. How did the court get there?

Appellant admits he did not raise the issue for which he now assigns error. Citing to United States v. Oliver, 76 M.J. 271 (C.A.A.F. 2017) and United States v. Harcrow, 66 M.J. 154, 157-58 (C.A.A.F. 2008), appellant, however, asserts the issue of multiplicity was not waived but, instead, was forfeited because the issue of multiplicity was not apparent under the law at the time.

Prior to United States v. Hardy, __ M.J. ___, 2018 CAAF LEXIS 324 (C.A.A.F. 5 Jun. 2018), the rule was that an unconditional guilty plea waives non-jurisdictional issues. Hardy merely reaffirmed that. The court acknowledged the defense did not know about United States v. Forrester, 76 M.J. 479 (C.A.A.F. 2017) at the time of trial so went ahead and addressed the issue.

Forrester is an important case in CP cases. Bottom line, CP on a computer is “one” possession regardless of what the images are, where they are stored on that computer, and how they are stored. A thumb-drive would be the second unit of possession.

So why mention IAC? In Mobley, that’s not an issue. On 26 June 2018, the Fourth Circuit Court of Appeals decided United States v. Allmendinger, No. 17-6447 (4th Cir. 2018). At trial, Allmendinger’s counsel failed to raise a “significant and obvious merger issue.” The court set-aside and remanded because the failure meant counsel was ineffective. The state appellate court had found a reasonable tactical decision and no prejudice. The court did have this to say.

“[A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effect of hindsight”

The first effort to avoid hindsight is raising the issue unless you can show the issue was bargained away in the pretrial agreement or that you have a demonstrable and reasonable tactical decision for not making the motion. Just as doctors tend to practice defensive medicine, I think we are at that point that we should be considering defensive lawyering.

FourthAmendment.com (a recommended resource and feed for your feedly.com has two points.

Defendant claims in his 2255 that defense counsel was ineffective for not filing a motion to suppress a search but does not even allege the grounds for it or that he would have had standing, and it appears he didn’t. “As a result, his claim could be dismissed as inadequately developed.” Branham v. United States, 2018 U.S. Dist. LEXIS 105676 (E.D. Tenn. June 25, 2018). Defendant essentially admits in pleadings that he voluntarily consented to talk to officers while not in custody and they were serving a search warrant on his house for child pornography. Therefore, counsel can’t be faulted for not filing a motion to suppress. Ashlin v. United States, 2018 U.S. Dist. LEXIS 105772 (E.D. Tex. June 25, 2018)