United States v. Harborth
| Docket Number | 202200157 |
| Decision Date | 21 December 2023 |
| Parties | UNITED STATES Appellee v. Jeremy W. HARBORTH Chief Master-at-Arms (E-7), U.S. Navy Appellant |
| Court | United States Court of Criminal Appeals, Navy-Marine Corps |
This opinion is subject to administrative correction before final disposition.
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges: Melanie J. Mann (arraignment and motions) Chad C Temple (motions and trial)
Sentence adjudged 18 March 2022 by a general court-martial convened at Joint Base Pearl Harbor Hickam, Honolulu, Hawaii, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for 18 months and a bad-conduct discharge.[1]
For Appellant: Lieutenant Colonel Matthew E. Neely, USMC
For Appellee: Lieutenant Commander Paul S. LaPlante, JAGC, USN Captain Tyler W. Blair, USMC
Before KISOR, DALY, and MIZER Appellate Military Judges
OPINION
Appellant was convicted, contrary to his pleas, of three specifications of indecent visual recording, in violation of Article 120c Uniform Code of Military Justice [UCMJ],[2] and one specification of production of child pornography, in violation of Article 134, UCMJ,[3] for recording and producing child pornography of Ms. November, a minor.[4]
Appellant asserts six assignments of error (AOEs): (1) whether Appellant's Fourth Amendment rights were violated when his electronic devices were seized and held for over three months without authorization; (2) whether trial defense counsel was ineffective for not raising a specific objection to the unlawful seizure of Appellant's digital devices (3) whether the military judge erred in allowing testimony to prove the contents of an email without requiring the Government to prove any exception to the Best Evidence Rule; (4) whether trial defense counsel was ineffective for not objecting to the Government's use of testimony to prove videos' contents; (5) whether evidence presented at trial was legally and factually sufficient to support a conviction of Charge II, Specification 3; and (6) whether Appellant was entitled to a unanimous verdict.
We agree, in part, with Appellant's first assignment of error that the Fourth Amendment was violated when his electronic devices were seized and held for over three months without authorization. Specifically, we conclude Appellant waived his argument that the seizure of his iPhone Xs violated the Fourth Amendment. But we agree the seizure of his iPad 4 and iPhone 6s violated the Fourth Amendment's prohibition against unreasonable seizures, and conclude that the evidence obtained as a result should be suppressed.
As set forth below in our decretal paragraph, we affirm Specification 2 of Charge I, which alleges the indecent recording of Ms. November in 2019, because we are convinced that the constitutional error in this case was harmless beyond a reasonable doubt with respect to that offense. But we conclude that Specification 3 of Charge I, which alleges the indecent recording of another minor, Ms. Papa, should be dismissed with prejudice because the evidence establishing that offense came solely from Appellant's iPad 4.
Finally, we set aside the findings with respect to Specification 1 of Charge I, which alleges the indecent recording of Ms. November in 2018, and the sole remaining Specification under Charge II, which alleges the production of child pornography by recording Ms. November between August 2016 and December 2018. The sentence is also set aside, and a rehearing as to findings (with the exception of Specification 3 of Charge I) and sentence is authorized.
In light of our decision, we need not address Appellant's remaining assignments of error, except as set forth below.[5]
On Saturday, 11 May 2019, Appellant, his wife (Ms. Hotel), and his stepdaughter, Ms. November, who was then 15-years-old, were on their way to Makaha Beach on Oahu, Hawaii, to celebrate Mother's Day a day early because Ms. Hotel had to work the next day. But when the family stopped for lunch, a fight erupted over Ms. Hotel's suspicions that Appellant was having an affair.[6]
As their argument escalated, they returned to Appellant's truck and began driving home.[7] When Ms. Hotel demanded to see Appellant's iPhone Xs, he told her there were some inappropriate photos on his phone of a woman he had met on Facebook, and he wanted to erase them first.[8] As he drove, Appellant appeared to be deleting something on his phone.[9] He continued to refuse to give Ms. Hotel his phone, and so Ms. November finally grabbed it and handed it to her mother.[10] Ms. Hotel then demanded Appellant's passcode for the iPhone, and he eventually gave it to her.[11]
When they arrived home, Ms. Hotel took her daughter into the house and instructed her to lock all of the doors so that Appellant could not get in.[12] Ms. Hotel then began searching Appellant's phone.[13] After finding nothing, Ms. November suggested that her mother should look at the deleted photos, and showed her where to find them.[14] It was there that Ms. Hotel found four photographs that appeared to be screenshots taken from a camera in Ms. November's bedroom, which was part of the family's Vivint home security system.[15]She was changing clothes in the pictures, and in one picture she had taken off her shirt, exposing her breasts to the camera. Two other photos were of Ms. November sunbathing in a bikini on the beach.[16] After finding the images, Ms. Hotel called the Honolulu Police Department (HPD).
With HPD officers on their way, Appellant tried to get into the house.[17] He unlocked the front door, but Ms. Hotel engaged a security bar at the top and he was unable to get in. As Appellant struggled to force his way in, Ms. Hotel retrieved a hammer from the garage, which her daughter took from her.[18] Soon thereafter, another camera from the Vivint system captured Appellant entering the garage through a side door where he was immediately confronted by Ms. Hotel and Ms. November.[19] Startled, Ms. November put Appellant's iPhone Xs behind her back.[20] There is no audio for the video, but Ms. Hotel testified that she asked Appellant if he had "pleasured himself" with the pictures of his stepdaughter.[21] He replied, "No, no, but I thought about it."[22]The video captures Ms. Hotel punching Appellant in the face and shoving him out of the garage.[23]
A third video ends with Appellant reaching for his iPhone Xs and Ms. November putting it again behind her back. In the fourth video, Ms. Hotel points at her daughter, and Ms. November takes Appellant's phone somewhere off camera.[24] Together, the five videos show Appellant struggling to enter the garage with the last one showing Ms. Hotel and her daughter finally succeeding in pushing Appellant out of the garage and locking the door.
When HPD Officer Tango arrived at the house, he found Appellant in front of the house.[25] Appellant told Officer Tango that he and his wife had gotten into an argument over inappropriate photos of his stepdaughter.[26] When Officer Tango told Appellant that he was just trying to figure out what was going on, and that nobody was in trouble yet, Appellant responded, [27]
Officer Tango then left Appellant with another HPD officer so that he could speak with Ms. Hotel.[28] Ms. Hotel was distraught and showed Officer Tango Appellant's still unlocked iPhone Xs and the four screenshots she and Ms. November found in the phone's deleted photos. Another HPD officer, Officer Bravo, took pictures of the images on Appellant's phone at the scene.[29] The officers then seized Appellant's iPhone Xs and took Appellant briefly into cus-tody.[30]
Before they left, Ms. Hotel gathered several of Appellant's other Apple devices, including an iPad 4, an iPad 2, and an iPhone 4s, and she tried to give them to Officer Tango.[31] He declined to take them because, as he would explain at trial, "there was no probable cause that the devices had content relevant to this particular case."[32]
Two days later, Ms. Hotel tried to give the devices to the police again, and this time she succeeded.[33] An HPD Incident Report states that Ms. Hotel submitted two iPads and an iPhone as evidence in Appellant's case.34[]
The Naval Criminal Investigative Service (NCIS) opened an investigation the same day Appellant was arrested.35[] The case was initially assigned to Special Agent (SA) Kilo, who was preparing to leave Hawaii for a new assign-ment.36[] Nevertheless, on 14 May 2019, one of SA Kilo's supervisors sent SA Kilo an email saying NCIS would "have to hit this one hard," and to let him know if he needed more people to help him.37[] According to the email, the Permissive Authorization for Search and Seizure (PASS) and Command Authorization for Search and Seizure (CASS) of Appellant's devices were pending.38[]
The next day, Ms. Hotel consented to the PASS authorizing NCIS to search the Harborth's home for "electronic evidence."39[] When the NCIS agents arrived, Ms. Hotel gave them a box of Appellant's digital media saying, "here's some stuff that might be helpful to you."40[] She explained that she had gone through the house looking for items that belonged to Appellant.41[] The box contained Secure Digital (SD) cards, discs, thumb drives, and an iPhone 6s, which was bent and broken from when Appel...
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