United States v. Cobb, C.A. No. 16-cr-6-JJM-PAS

• Decision Date: 16 November 2018
• Docket Number: C.A. No. 16-cr-6-JJM-PAS
• Citation: 350 F.Supp.3d 64
• Parties: UNITED STATES of America, v. Adam COBB, Defendant.
• Court: U.S. District Court — District of Rhode Island

350 F.Supp.3d 64

UNITED STATES of America,

v.Adam COBB, Defendant.

C.A. No. 16-cr-6-JJM-PAS

United States District Court, D. Rhode Island.

Signed November 16, 2018

Terrence P. Donnelly, U.S. Attorney's Office, Providence, RI, for United States of America.

Francis J. Flanagan, The Flanagan Law Offices, Newport, RI, for Defendant.

MEMORANDUM AND ORDER

JOHN J. MCCONNELL, JR., United States District Judge

Adam Cobb files his petition for post-conviction relief after having plead guilty to a one-count Information alleging that he had distributed child pornography in violation of 18 U.S.C. § 2252(a)(2).He claims ineffective assistance of counsel.Finding no basis for granting the extraordinary relief, the Court DENIES his Motion to Vacate.ECF No. 64.

I.RELEVANT FACTS

Adam Cobb is a former professor at the Naval War College.He was 47 years old at all relevant times.He plead guilty to having been involved in sending, receiving and producing lascivious photographs of naked minor children.

Mr. Cobb agreed to the truth of these facts at his change of plea:

In January of 2015 ... the Rhode Island Internet Crimes Against Children [ICAC] Task Force received a referral from the National Center for Missing and Exploited Children that a person using the website "tumbler.com" with an account name of "ddlg-obey-daddy," uploaded four image files containing suspected pornography.

This information ... led to a Rhode Island State Police investigation along with Homeland Security agents and other local law enforcement officers that belong to the ICAC, and they applied for and obtained a search warrant for the Defendant's house.That search warrant was executed ... and agents seized various computers and cellphones belonging to the Defendant.

... during that search, a hard drive was seized, among other things, pursuant to the warrant and was examined by a Rhode Island State Police forensic analyst who discovered photographs and video footage of a 17-year-old minor who it turned out was a citizen of the United Kingdom....

In the fall of 2014, the Defendant had this minor travel to the United States unbeknownst to her parents to stay with him at his Tampa residence.There the Defendant made multiple videos depicting himself and the U.K. minor engaged in various sexual acts.

On that same computer, the forensic analyst also found nude still images of this minor which involved a lascivious exhibition of the genitals.Many of these images had been sent going back as far as August 2013 ... They had been sent by the U.K. victim from England to the Defendant via the internet.

...[T]he day after the execution of the state search warrant, agents had encountered the Defendant while he was coming back from international travel and seized an iPhone 6 from him at a border search on that date.

[A]gents [thereafter] obtained a search warrant from this Court for that iPhone 6.Forensic analysis of that phone ... revealed that during the same timeframe that the Defendant was having the U.K. victim come to Florida, the Defendant was in communication with another minor, this time a 16-year-old who lived outside of Rhode Island in the eastern part of the United States.Forensic evidence from that iPhone revealed that the Defendant was engaged in online Skype text chats and live camera feeds with this victim.The Defendant identified himself as "Daddy Mike 69."The Defendant engaged in explicit sexual text messaging with this victim.

For example, ... the Defendant told the victim that he wanted to engage in anal intercourse with her, forcing himself into her even if it hurt her because, "daddy wants to see your teen tears."The analyst also found that the Defendant had engaged in screen captures by obtaining still images of these live video exchanges that were taking place on Skype.

He engaged in screen captures of images from that live feed of the victim.The Defendant had saved these images onto his phone.These images depicted the United States victim ... engaged in sexually explicit conduct, including the lascivious exhibition of her genitals and acts of self-penetration of her genitals with a hairbrush as well as bobby pins being placed on her vaginal area.This victim was later interviewed ... and indicated that she posed and did these acts ... at the request of the Defendant.During these communications, the Defendant wanted to meet with her, but the victim cut off the relationship before that happened.

Finally ... the forensic analysis of the Defendant's phone indicated that ... the Defendant sent by text message four sexually explicit images of the United States victim ... to an unknown recipient....[T]he next day or later the same day ... he sent two more such images to that same recipient.Again, that recipient is unknown; but the sexually explicit images ... were accompanied by texts from the Defendant which said things like "this little bitch is sky long with me right now,""I did bobby pins on clit and nips," and "hairbrush action."

ECF No. 60at 13-17.

II.TRAVEL OF THE CASE

Mr. Cobb was arrested and charged by complaint with Distribution and Receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2).ECF No. 3.On that same day, two experienced criminal defense attorneys entered their appearances for Mr. Cobb. ECF Nos. 5 and 6.The Court at first detained Mr. Cobb but the Magistrate Judge later released him on $1,000,000 full surety.

The Government filed a series of motions to extend the 30-day time to indict under the Speedy Trial Act, 18 U.S.C. § 3161(b), under the tolling provisions in 18 U.S.C. § 3161(h).The parties stated they needed time to engage in plea negotiations, as well as to view and digest the complex evidence accumulated against Mr. Cobb during the investigation.Mr. Cobb's attorneys met with the prosecutor to review evidence and discuss the case.After seeing the evidence amassed against Mr. Cobb, those attorneys proposed a guilty plea by Mr. Cobb.

Mr. Cobb then fired these attorneys and retained new counsel.Much of the pretrial work therefore began anew.ECF Nos. 25 and 26.

Mr. Cobb's new attorney met with the Government who again reviewed the evidence against Mr. Cobb, including the digital evidence and the images seized from Mr. Cobb's electronic devices.As with Mr. Cobb's first attorneys, his new attorney reasonably pursued a strategy of trying to minimize his ultimate sentence.

Meanwhile, Mr. Cobb had collected several unauthorized electronic devices while on pretrial release without Probation's approval.He also had renewed contact with the victim and admitted he had violated his bail conditions.The Magistrate Judge ordered him detained.ECF No. 33.

After further extensive negotiations between the parties, the Government then filed an agreed-to one-count Information and plea agreement.ECF Nos. 37 and 38.Mr. Cobb appeared before the Magistrate Judge, who questioned him thoroughly before accepting his waiver of indictment.ECF Nos. 39 and 62.Mr. Cobb then pleaded guilty to the Information before this District Judge.ECF No. 60.During the change-of-plea hearing, Mr. Cobb told this Court that he understood the rights he was waiving by pleading guilty, and that he was fully satisfied with the advice his attorneys had given him.Id. at 5("THE COURT: Are you fully satisfied with the representation that you've received from your counsel in this case, Mr. Cobb?THE DEFENDANT: I am.").Mr. Cobb admitted that the facts the Government had recited were true.Id. at 12-17.

The Court sentenced Mr. Cobb according to the parties' joint recommendation of 60 months of incarceration followed by ten years of supervised release and a $25,000 fine.In sentencing Mr. Cobb, the Court stated:

I'm going to accept the joint recommendation of the parties.I must say I do it reluctantly and I do it without a great deal of confidence in its correctness.I think it's too short.I think for the actions of the person that stands before me, looking at all the 3553 factors, Dr. Cobb, that you deserve a longer time of incarceration.* * * [M]y analysis, Dr. Cobb, of the situation is that you used your tremendous talents and abilities and intellect and position in life to manipulate young people.I believe that of your fiancee, I believe that of the 16 year old in Florida, and that's disturbing.It's disturbing because I think these people were vulnerable and I think they were weak to your talented manipulation, and I think that's what has taken place here.But you'll have to live with that and will have to proceed accordingly.

ECF No. 63at 16-17.

A year later, Mr. Cobb filed this Motion to Vacate¹ under 28 U.S.C. § 2255.ECF No. 64.²He filed an Amended Memorandum in Support of his Motion to Vacate.ECF No. 87.

III.APPLICABLE LAW

Section 2255 provides for post-conviction relief if a court sentenced a petitioner in violation of the Constitution or if the sentence is otherwise subject to collateral attack.United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805(1979);David v. United States , 134 F.3d 470, 474(1st Cir.1998).In seeking to attack collaterally his sentence, the petitioner bears the burden of proving "exceptional circumstances" that warrant redress under § 2255.SeeHill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417(1962);Mack v. United States , 635 F.2d 20, 26-27(1st Cir.1980).For example, an error of law must constitute a "fundamental defect which inherently results in a complete miscarriage of justice."Hill , 368 U.S. at 428, 82 S.Ct. 468;accordDavid , 134 F.3d at 474.

The Sixth Amendment guarantees defendants the right to effective assistance of counsel.Lema v. United States , 987 F.2d 48, 51(1st Cir.1993)(citingStrickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984) ).Even so, "[t]he Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance...