Opinion Analysis: CAAF rattles its saber over a prosecutor’s improper arguments that “amounted to grievous error” but were nevertheless harmless, in 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).