CAAF will hear oral argument in the Air Force case of United States v. Voorhees, No. 18-0372/AF (CAAFlog case page), on Wednesday, February 20, 2019, after the argument in Tovarchavez. Three granted issues question the mens rea necessary to commit conduct unbecoming an officer and gentleman and the propriety of numerous aspects of the prosecution’s closing argument:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees had inappropriate communications with three women (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but was reversed by the Air Force CCA as factually insufficient in 2016. The CCA ordered a sentence rehearing, and Voorhees was sentenced to a reprimand and to be dismissed. The CCA affirmed the revised sentence last year.

On appeal, Voorhees challenged the sufficiency of the Article 133 specifications to state an offense and also the prosecution’s closing argument as improper. The CCA rejected the challenges in its 2016 opinion, and CAAF is now reviewing that decision.

Voorhees brief asserts that the prosecution engaged in four kinds of improper argument:

  • Personal attached on him and his defense counsel. App. Br. at 14.
  • Commenting on his silence. App. Br. at 16.
  • Expressing personal opinion that Voorhees was guilty and vouching for prosecution witnesses. App. Br. at 19.
  • Arguing facts not in evidence. App Br. at 23.

The Government Division does not so much defend the prosecution’s closing argument as it highlights the failure of Voorhees’ defense counsel to object:

Nothing in trial counsel’s closing argument on the merits constituted plain error. Albeit at times frank and abrasive, trial counsel’s closing arguments were mostly proper comment on the evidence presented, and any comments that arguably crossed the line were not so improper as to amount to plain error. . . . None of the comments made by trial counsel drew objections from trial defense counsel, and Appellant did not meet his burden of showing comments by trial counsel amounted to plain error. Therefore, Appellant is not entitled to relief.

Nevertheless, even if this Court determines plain error occurred, Appellant has not demonstrated prejudice. The strength of the government’s case alone should preclude a finding of prejudice. . . .

Gov’t Div. Br. at 10.

Voorhees also argues that the specifications alleging violations of Article 133 are insufficient because:

None of the specifications included words of criminality such as “morally unbefitting and unworthy,” “unlawful,” “indecent,” “dishonorable,” or “wrongful.” Charge Sheets at JA 058-063. Nor do any of the specifications allege a mens rea such as intentionally, knowingly, recklessly, or negligently. Id.

App. Br. at 28. Voorhees counsel did not object to that at trial either.

The Government Division responds with the assertion that only general intent applies (meaning that Voorhees need only have intended to do the acts; something that is synonymous with voluntariness) because anything that is unbecoming of an officer is necessarily wrongful:

All five specifications contain the two elements of the offense of conduct unbecoming an officer and a gentleman, as proscribed by Congress and the President. MCM,part IV, para. 59(b) (2012 ed.) These two elements serve to inform Appellant of the specific acts against which he needed to defend. The second element, that the conduct be unbecoming of an officer, sufficiently states words of criminality, distinguishing lawful from unlawful conduct. Words such as “wrongful” or “dishonorable” are not necessary because the wrongfulness of the conduct is inherently encompassed in “conduct unbecoming of an officer.” Finally, the elements are charged with sufficient specificity to prevent future prosecutions for the same offenses. This is all that is required.

Gov’t Div. Br. at 48. But in case CAAF concludes that something more is required, the Government Division also argues that the evidence of guilt is overwhelming:

Even if this court were to determine some other standard of mens rea was required, and the military judge erred in not giving a more specific instruction on mens rea, any such error was harmless beyond a reasonable doubt. Due to the overwhelming corroborated evidence in the record, which was highlighted in detail above, the members would still have found Appellant guilty under a stricter mens rea, such as recklessness.

Gov’t Div. Br. at 59.

Case Links:
First AFCCA opinion
Second AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Blog post: Argument preview

One Response to “Argument Preview: CAAF considers the language required to charge conduct unbecoming an officer and gentleman (and some possible prosecutorial misconduct), in United States v. Voorhees”

  1. Alfonso Decimo says:

    There’s a good law review article on this problem, Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla. L. Rev. 887 (2018), which recommends a pretrial motion in limine, to seek a pretrial order to prevent the misconduct before it occurs. He argues it is necessary b/c prosecutors know improper arguments are “highly effective, yet virtually risk-free.” As a former military judge, I think this would be well-received. At the very least, it would put the MJ on notice and make the MJ more inclined to consider remedies if it happens. The argument in this case is particularly egregious due to the numerous and distinct improper arguments, a strong indicator of premeditation by the prosecutor.