CAAFlog » October 2018 Term » United States v. Voorhees

CAAF decided the Air Force case of United States v. Voorhees, __ M.J. __, No. 18-0372/AF (CAAFlog case page) (link to slip op.), on June 27, 2019. Reviewing the closing arguments of an experienced Air Force prosecutor, CAAF finds clear or obvious error in the prosecutor’s personal attacks on Voorhees’ defense counsel, personal attacks on Voorhees himself, expressions of personal opinion, bolstering, and vouching, and it concludes that the “trial counsel’s misconduct amounted to grievous error.” Slip op. at 8. Not too grievous, however, because CAAF also finds that, in context, the “arguments were unlikely to prejudice the panel against Appellant.” Slip op. at 10. The court further concludes that the offense of conduct unbecoming an officer and gentleman, in violation of Article 133, is merely a general intent crime. Accordingly, CAAF affirms the five convictions of conduct unbecoming, the sentence, and the decision of the Air Force CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review of three 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

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 improperly communicated with subordinate females (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 that conviction was reversed by the Air Force CCA as factually insufficient in 2016, leaving Voorhees convicted of just the five specifications of conduct unbecoming. The CCA ordered a sentence rehearing on those convictions, and Voorhees was sentenced to a reprimand and to be dismissed.

Having won reversal of his sexual assault conviction at the CCA, Voorhees’ appeal to CAAF focused on his five convictions of conduct unbecoming, and CAAF granted review of two basic questions: Was the prosecutor’s closing argument improper, and does conduct unbecoming require a specific mens rea. CAAF rejects Voohees’ mens rea argument entirely, concluding that just like the military-specific offense of maltreatment considered in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), “there is no scenario where an officer who engages in the type of conduct [Voorhees] engaged in can be said to have engaged in innocent conduct.” Slip op. at 16 (marks and citation omitted).

Voorhees’ claim that the prosecutor used improper arguments to win the convictions, however, gets remarkably different treatment. Judge Sparks’ opinion for the unanimous court agrees with Voorhees that the arguments were improper, concluding that they “amounted to grievous error,” slip op. at 8, and Judge Sparks castigates the Air Force Appellate Government Division for defending the arguments (though says nothing about the Air Force CCA, which found no error). The opinion also contains a 513-word note on prosecutorial misconduct, slip op. at 12-13, that bemoans “the consistent flow of improper argument appeals to our Court” and ends with the aspirational principle announced last year that “every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” Slip op. at 13 (quoting United States v. Andrews, 77 M.J. 393, 404 (C.A.A.F. 2018) (CAAFlog case page)). Yet all of that is dicta, because “‘regardless of trial counsel’s improper arguments, there was ample evidence in support of’ Appellant’s convictions.” Slip op. at 11 (quoting Andrews, 77 M.J. at 403).

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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.