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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Tuesday, November 5, 2024

9:30 a.m.:

United States v.	Jeremy W. Harborth	Nos. 24-0124/NA & 24-0125/NA
(Appellee/ Cross-Appellant)	(Appellant/ Cross-Appellee)	(audio -- mp3)

Counsel for Appellant/Cross-Appellee: Lt Col Matthew E. Neely, USMC
                                             ------------ (Appellant/Cross-Appellee brief)
Counsel for Appellee/Cross-Appellant: LCDR Paul S. Laplante, JAGC, USN                                     ------------ (Appellee/Cross-Appellant brief)

Case Summary: Following a NMCCA decision affirming in part and reversing in part Appellant's conviction, 84 M.J. 509 (N.M. Ct. Crim. App. 2023), the Navy-Marine Corp Judge Advocate General certified 5 issues pursuant to Article 67(a)(2), UCMJ. First, did the military judge err by (1) finding the warrantless seizure of Appellee's electronic devices was justified by probable cause, and (2) not ruling on law enforcement's reliance on actual and apparent authority? Second, did the lower court err in ruling that law enforcement could not rely on actual or apparent authority and by holding the delay in securing a search authorization was unreasonable, thereby setting aside Appellee's convictions? Third, did the lower court err in failing to find that Appellee waived objection to the duration of the seizure, when Appellee never objected at trial to the duration of the seizure, and Mil. R. Evid. 311 states that objections not made at trial are waived. Fourth, did the lower court err in failing to first determine whether Ms. Hotel was a government actor, and if so, did Ms. Hotel's actions constitute government action, thus implicating Fourth Amendment protection, when she seized Appellee's other devices and provided them to HPD and NCIS? Fifth, having found a reasonable probability that a motion to suppress the results of the seizure and search of Appellee's iPhone XS would have been meritorious, did the NMCCA err in not finding prejudice from the defense counsel not moving to suppress this evidence? The granted issue questions whether the trial defense counsel was ineffective by not seeking suppression of all evidence derived from the unlawful seizure of Chief Harborth's property.

NOTE: Counsel for each side will be allotted 30 minutes to present oral argument.

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Wednesday, November 6, 2024

9:30 a.m.:

United States v.	Kyle A. Shelby	No. 24-0186/MC
(Appellee)	(Appellant)	(audio -- mp3)

Counsel for Appellant: LCDR Leah M. Fontenot, JAGC, USN
                                                  ------------------------ (supplement)
Counsel for Appellee:  LT Lan T. Nguyen, JAGC, USN (answer)

Case Summary: The military judge in this case dismissed Charge II, consisting of one specification of abusive sexual contact in violation of Art. 120, UCMJ, on the basis of cumulative error. The government appealed pursuant to Art. 62, UCMJ. The CCA reversed 84 M.J. 639 (N.M. Ct. Crim. App. 2024), concluding that the doctrine of cumulative error was not applicable in a pretrial context. The granted issue asks did the military judge err when he dismissed Charge II with prejudice after "considering the interests of justice, the accused's right to a fair trial, and the cumulative error" of the government?

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.