CAAFlog » October 2018 Term » United States v. Voorhees

Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Voorhees, No. 18-0372/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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.

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Yesterday CAAF granted review in this Air Force case:

No. 18-0372/AF. U.S. v. Paul D. Voorhees. CCA 38836. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

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.

Briefs will be filed under Rule 25.

In 2015 Major Voorhees was convicted of one specification of sexual assault by causing bodily harm and five specifications of conduct unbecoming of an officer and gentleman, and sentenced to confinement for three years, total forfeitures, and a dismissal. On appeal the following year, in an opinion available here, the Air Force CCA found the sexual assault conviction factually insufficient and ordered a sentence rehearing. At the rehearing in 2017 a military judge sentenced Voorhees to a reprimand and to be dismissed. Then, earlier this year, the CCA again affirmed the findings of conduct unbecoming, and it affirmed the revised sentence, in an opinion available here.