NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0702n.06
No. 12-3827
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
)
Jul 30, 2013
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
ALEX DAVID COOK, ) OHIO
)
Defendant-Appellant. )
Before: SILER, MOORE, and ROGERS, Circuit Judges.
SILER, Circuit Judge. Defendant Alex Cook appeals his conviction for the receipt,
possession, and distribution of child pornography. For the reasons that follow, we AFFIRM.
I.
In 2010, the FBI discovered that someone with an internet-protocol (“IP”) address in Lima,
Ohio was sharing computer files over the internet that contained images of child pornography. They
found that the IP address was assigned to Cook’s internet service account, and the FBI executed a
search warrant at his apartment. His roommate, Ian Douglas, was interviewed during the search, but
was ruled out as a suspect. Cook was not arrested, but agreed to accompany the FBI agents to their
office for an interview.
At the beginning of the interview, Agent Paul Pape showed Cook an electronic version of
his rights, which he appeared to read before electronically signing a waiver of those rights. Near
No. 12-3827
United States v. Cook
the end of the interview, Pape, with Cook’s assistance, prepared a two-page written statement that
reflected the substance of the interview. Cook signed the statement, attesting that it was true and
accurate. In the statement, Cook admitted that there were images of child pornography on his
computer and that he downloaded them from the internet. In accordance with standard FBI policy
at the time, the interview was not recorded.
A forensic analysis of Cook’s computer revealed that there were numerous images of child
pornography located in LimeWire files. LimeWire is a program that allows the user to share
computer files and search the internet for others who are sharing particular types of files. Among
other files, Cook’s computer had child pornography images in his LimeWire shared folder, meaning
it was available to other users to download.
Cook was indicted in December 2010 and assigned representation by the Federal Public
Defender. After the district court granted Cook three extensions for the filing of pre-trial motions
and a continuance of the pre-trial conference, trial was set for June 28, 2011. After the pre-trial
conference, the court granted Cook’s request for a continuance and scheduled a new trial date for
September 6, 2011. On August 2, 2011, the Federal Public Defender withdrew as counsel and a new
counsel appeared at Cook’s request. His new counsel requested a continuance to review the case for
an indeterminate amount of time and noted the potential need to retain additional experts. The court
denied the request, but it advised counsel that if any newly retained defense experts could not be
ready in time for trial, that she should “make a record in that regard” and that the court would
readdress a request for continuance. Defense counsel did not renew her continuance request.
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United States v. Cook
Cook called six witnesses at trial, including two experts and himself. He claimed that the
confession was fabricated and that he did not read the statement before he signed it. He also testified
that he had no idea how the child pornography images got into his computer files. Nonetheless, he
was convicted on all three counts and sentenced to 72 months of imprisonment, well below his 168
to 210 month advisory guideline sentence.
II.
On appeal, Cook raises two issues. First, he argues that the district court erred by not
granting a continuance after he replaced his trial counsel one month before trial. We review the
district court’s denial of a continuance for an abuse of discretion. United States v. Hall, 200 F.3d
962, 964 (6th Cir. 2000).
In his other argument, Cook contends that his counsel provided ineffective assistance in a
variety of ways. “[I]n most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct
appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504
(2003). See also United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009).
III.
Cook argues that the district court abused its discretion when it denied his last motion to
continue the trial. The district court held a telephone conference on August 4, 2011 to discuss
Cook’s motion to continue. The government objected to the continuance because arrangements had
already been made for traveling witnesses and because the trial was not “rocket science.” The court
noted that it was Cook’s decision to change counsel, and, because it had been contemplated weeks
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No. 12-3827
United States v. Cook
earlier, the court should have been informed. The court denied the motion, noting that thirty-two
days was an adequate amount of time to prepare.
Trial judges have “a great deal of latitude in scheduling trials.” Morris v. Slappy, 461 U.S.
1, 11 (1983). On appeal, “[t]here are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process, [so t]he answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial judge at the time
the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). In order to demonstrate
reversible error the defendant must prove actual prejudice to his defense by showing that a
continuance “would have made relevant witnesses available or added something to the defense.”
United States v. Crossley, 224 F.3d 847, 855 (6th Cir. 2000).
Defense counsel requested the continuance in order to become more familiar with the case
before trial. Similarly, in Ungar v. Sarafite, defense counsel requested a one-week continuance
because of his unfamiliarity with the case and his busy schedule. 376 U.S. at 590. In affirming the
trial court’s denial of the continuance, the Court noted that five days was a constitutionally adequate
amount of time to prepare for a trial which involved clear-cut issues and readily accessible evidence.
Id. Here, counsel had access to the government’s entire file; previous counsel’s materials, including
a computer forensics expert; and thirty-two days to prepare. Further, the government’s case was
relatively simple, including evidence from ten witnesses covering just over a day and a half.
In requesting the continuance, counsel also indicated that it was possible that she would need
to retain a computer expert to produce a forensic report. Although the court denied the motion, it
advised counsel that if any newly retained defense experts could not be ready in time for trial, that
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No. 12-3827
United States v. Cook
she should “make a record in that regard” and that the court would readdress a continuance request
if made. Thus, the district court gave defense counsel an opportunity to make a more detailed
request, but she failed to do so.
Moreover, Cook has failed to show that he suffered actual prejudice. He has failed to identify
specific witnesses or evidence that would have been available had the continuance been granted.
Therefore, the district court acted within its discretion in denying the continuance.
IV.
Cook also contends that his trial counsel provided ineffective assistance in three different
instances. He argues that she should have (1) renewed the continuance motion in order to investigate
a computer hacking defense, (2) requested that the government stipulate to the fact that the images
contained child pornography, and (3) moved for the charges to be dismissed or for a mistrial because
the confession was not recorded.
If Cook were to pursue these claims on collateral attack, the factual record could be further
developed to show, for example, whether computer hacking was in fact a viable defense, or why his
counsel did not take certain actions. This in turn would color the degree, if any, to which his counsel
was ineffective. Thus, given the incomplete record, and our preference that defendants pursue
ineffective assistance of counsel claims on collateral attack, Johnson, 553 F.3d at 999, we decline
to rule on Cook’s claims of ineffective assistance of counsel in his direct appeal.
AFFIRMED.
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