Petition for Writ of Certiorari — Paul D. Voorhees, Petitioner v. United States

Supreme Court briefDec 20, 2019

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No. 19-___________

In The

Supreme Court

of the United States

___________________

PAUL D. VOORHEES, Major, USAF,

Petitioner,

UNITED STATES OF AMERICA ,

Respondent.

__________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

_________________

PETITION FOR A WRIT OF CERTIORARI

_________________

DONALD G. REHKOPF , JR .

Counsel of Record

Rehkopf Law Office

31 E. Main Street, 2nd Floor

Rochester, NY 14614

(585) 434-0232

usmilitarylaw@gmail.com

BENJAMIN H. DE YOUNG , Major, USAF

Air Force Appellate Defense Division

1500 W. Perimeter Rd., Suite 1100

JB Andrews NAF, MD 20762-6604

(240) 612-4770

benjamin.h.deyoung.mil@mail.mil

Counsel for Petitioner

QUESTION PRESENTED

In Elonis v. United States, 135 S.Ct. 2001 (2015),

this Court reaffirmed a long-standing principle under

both the Fifth Amendment’s Due Process Clause and

the Sixth Amendment’s Informed Clause, that criminal

statutes must contain a mens rea element–with the

exception of strict liability offenses. Furthermore, as

Elonis explains, a “defendant must be ‘blameworthy in

mind’ before he can be found guilty” of any offence in

order to differentiate between lawful and unlawful conduct. Id. at 2009. Where a criminal statute is silent

about scienter, a court must “read into” a criminal

charge a mens rea element in its jury instructions as

Elonis and its antecedents held, and as refined in

Rehaif v. United States, 139 S.Ct. 2191 (2019).

Petitioner was convicted of five counts of violating

10 U.S.C. § 933, Article 133, Uniform Code of Military

Justice, for “conduct unbecoming an officer.”

The Question Presented is:

Does this mens rea or scienter principle

apply to criminal prosecutions under the

Uniform Code of Military Justice, where the

underlying statute at issue, 10 U.S.C. § 933,

contains no mens rea element and the U.S.

Court of Appeals for the Armed Forces held

below that only a general intent was required

using an objective, versus subjective

standard, i.e., negligence, and thus, no mens

rea element need be instructed to the jury,

even where the “conduct” alleged to be

criminal, is facially non-criminal?

PARTIES TO THE PROCEEDING and

RULE 29.6 STATEMENT

1. Petitioner, Defendant-Appellant below, is Paul

D. Voorhees, Major, USAF. Respondent is the

United States.

2. No party is a corporation.

iii

RULE 14.1(b)(iii) STATEMENT

1. This case arises from a trial by a General CourtMartial, United States v. Voorhees, sitting with

officer Members, convened by Headquarters, 12th

Air Force, Davis-Monthan Air Force Base, Arizona.

Petitioner was convicted of six offenses under the

Uniform Code of Military Justice [UCMJ], 10 U.S.C.

§ 801 et seq., and acquitted of one. He was

sentenced on 9 January 2015, to a Dismissal, three

years confinement, and forfeiture of all pay and

allowances.

2. Further proceedings in the United States Air Force

Court of Criminal Appeals [AFCCA] and the United

States Court of Appeals for the Armed Forces

[CAAF], were as follows:

a. United States v. Voorhees, No. ACM 38836,

(AFCCA, Nov. 23, 2016) (unpub. op.). available at

2016 WL 11410622 [Pet.App. 46a-79a]; which

reversed and dismissed with prejudice Petitioner’s

conviction for sexual assault under 10 U.S.C. § 920,

as being factually insufficient, and remanding the

case back to a new court-martial for resentencing as

to the remaining offenses, all under 10 U.S.C. §

933;

b. A second General Court-Martial convened by the

same Headquarters, United States v. Voorhees

(rehearing) with a Military Judge sitting alone

without Members at Petitioner’s request, on 5 April

2017, resentenced Petitioner to a Dismissal and a

Reprimand. The General Court-Martial Convening

Authority approved only the Dismissal portion of

the sentence adjudged.

c. United States v. Voorhees, No. ACM 38836 (reh)

(AFCCA July 20, 2018) (unpub. op.), available at:

2018 WL 3629893 [Pet.App. 28a-45a], which

affirmed the approved sentence.

d. United States v. Voorhees, Dkt. # No. 18-0372,

79 M.J. 5 (CAAF,June 27, 2019); rehearing denied,

79 M.J. 218 (CAAF, August 8, 2019) [Pet.App. 1a27a; 90a], is the case below, which affirmed

Petitioner’s remaining § 933 convictions and

approved sentence.

3. There are no other proceedings in state, military, or

federal trial or appellate courts, or in this Court

directly related to this case.

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . . ii

RELATED PROCEEDINGS. . . . . . . . . . . . . . . . . iii-iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . vii-x

PETITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 4

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTIONAL and STATUTORY

PROVISIONS INVOLVED. . . . . . . . . . . . . . . . 5-6

STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION. . . . 12

I. CAAF’s DECISION CONTRAVENES THE

CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . 12

II. CAAF’s DECISION MISCONSTRUES PLAIN,

SIMPLE, AND LONG-STANDING

PRECEDENTS FROM THIS COURT. . . . . . . . 14

A. The Mens Rea Jurisprudence.. . . . . . . . . . . . 14

B. Parker v. Levy. . . . . . . . . . . . . . . . . . . . . . . . . 21

C. CAAF Ignored Elonis and Rehaif. . . . . . . . . 23

III. THE IMPORTANCE OF THIS CASE. . . . . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

APPENDICES

Appendix A, CAAF Opinion, 79 M.J. 5

(CAAF 2019).. . . . . . . . . . . . . . . . . . . . . . . . 1a-27a

Appendix B, AFCCA Opinion, unreported

(July 20, 2018). . . . . . . . . . . . . . . . . . . . . . 28a-45a

Appendix C, AFCCA Opinion, unreported

(November 18, 2016). . . . . . . . . . . . . . . . . 46a-79a

Appendix D, CAAF Reconsideration Denial,

79 M.J. 218 (CAAF 2019). . . . . . . . . . . . . . . . . 80a

Appendix E, Glossary. . . . . . . . . . . . . . . . . . . . . . . 81a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Burns v. Wilson,

346 U.S. 137 (1953). . . . . . . . . . . . . . . . . . . . 22-23

Carter v. United States,

530 U.S. 255 (2000). . . . . . . . . . . . . . . . . . . . . 4, 17

Elonis v. United States,

135 S.Ct. 2001 (2015).. . . . . . . . . . . . . 4, 11, 23-25

Lawrence v. Texas,

539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . 3, 15

Liparota v. United States,

471 U.S. 419 (1985). . . . . . . . . . . . . . . . . . . . . . . 18

Loving v. United States,

517 U.S. 748 (1996). . . . . . . . . . . . . . . . . . . . . . . 23

Morissette v. United States,

342 U.S. 246 (1952). . . . . . . . . . . . . . . . . . . passim

Parker v. Levy,

417 U.S. 783 (1974). . . . . . . . . . . . . . . . . 11, 21-23

Rehaif v. United States,

139 S.Ct. 2191 (2019).. . . . . . . . . . . . . . . . . passim

Sessions v. Dimaya,

138 S.Ct. 1204 (2018).. . . . . . . . . . . . . . . . . . . . . 19

Staples v. United States,

511 U.S. 600 (1994). . . . . . . . . . . . . . . . . . . . 18, 25

United States v. Caldwell,

viii

75 M.J. 276 (CAAF), cert. denied,

137 S.Ct. 248 (2016).. . . . . . . . . . . . . . . . . . . . . . 10

United States v. Davis,

139 S.Ct. 2319 (2019).. . . . . . . . . . . . . 4, 12-13, 19

United States v. Fosler,

70 M.J. 225 (CAAF 2011). . . . . . . . . . . . . . . . . . 18

United States v. McDonald,

78 M.J. 376 (CAAF), recon. denied

79 M.J. 94 (CAAF 2019),cert. pending. . 19, 26-27

United States v. Shober,

26 M.J. 501 (A.F.C.M.R.), aff’d, 23 M.J. 249

(CMA 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Voorhees,

79 M.J. 5, reh. denied, 79 M.J. 218

(CAAF 2019).. . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994). . . . . . . . . . . . . . . . . . . . . . . . 17

CONSTITUTIONAL PROVISIONS

Article I, § 8, U.S. Const.. . . . . . . . . . . . . . . . . . . 2, 12

Article II, § 2, cl.1, U.S. Const.. . . . . . . . . . . . . . . . . 12

Fifth Amendment, U.S. Const.. . . . . . . . . . 1, 5, 13-14

Sixth Amendment, U.S. Const... . . . . . . . . 1, 5, 13-14

STATUTES

10 U.S.C. § 825a. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

10 U.S. Code § 836(a). . . . . . . . . . . . . . . 5, 16, 22, 26

10 U.S.C. § 867a. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

10 U.S.C. § 893 (2012).. . . . . . . . . . . . . . . . . . . . . . . 18

10 U.S.C. § 920. . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 26

10 U.S.C. § 933. . . . . . . . . . . . . . . . . . . . . . . . . passim

10 U.S.C. § 934. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

18 U.S.C. § 922(g)(6). . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1259(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Nat’l Defense Authorization Act for FY 2017,

Pub. L. No. 114-328, 130 Stat. 2000 (2016). . . . 15

OTHER AUTHORITIES

Black’s Law Dictionary, 9th ed. (2009).. . . . . . . . . . . . 2

Manual for Courts-Martial (1951). . . . . . . . . . . 16, 22

Manual for Courts-Martial (1984). . . . . . . . . . . . . . 23

Manual for Courts-Martial (2012). . . . . . . . . . . 17-18

Manual for Courts-Martial (2019). . . . . . . . . . . . . . 17

Manual for Courts-Martial (Army, 1949).. . . . . . . . 21

Sen. Sam Irvin, Jr., The Military Justice Act

of 1968, 45 Mil. L. Rev. 77 (1969). . . . . . . . . . . . 23

No. 19-____

In The

Supreme Court of the United States

___________________

PAUL D. VOORHEES, Major, USAF,

Petitioner,

UNITED STATES OF AMERICA ,

Respondent.

__________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

_________________

PETITION FOR A WRIT OF CERTIORARI

_________________

Major Paul D. Voorhees, USAF, respectfully

petitions for a writ of certiorari to review the judgment

of the U.S. Court of Appeals for the Armed Forces.

INTRODUCTION

The Fifth Amendment’s Due Process Clause (fair

notice) and the Sixth Amendment’s Informed Clause,

require that criminal statutes contain a mens rea

element–with the exception of “public welfare”

offenses. Where a statute is silent about scienter, a

court must “read into” a criminal charge a mens rea

element in its instructions to the jury as Elonis v.

United States, 135 S.Ct. 2001 (2015) and its

antecedents hold, and as refined in Rehaif v. United

States, 139 S.Ct. 2191 (2019).

Unlike the Fifth Amendment's Grand Jury

exceptions for “cases arising in the land or naval

forces,” the Constitution nowhere else exempts

Congress (or the Commander-in-Chief) from complying

with the fair notice–mens rea–provisions of the Fifth

and Sixth Amendments. Since at least 1950, every

Congress and every Commander-in-Chief has accepted

this premise.

Petitioner makes no claim that Congress cannot

proscribe misconduct by our military's officer corps

under the Make Rules Clause of Article I, § 8, U.S.

Const., Petitioner only submits that where Congress

does proscribe such misconduct–as in 10 U.S.C. §

933–it must do so in a constitutionally acceptable

manner, i.e., that the conduct or speech allegedly

“unbecoming,” be done knowingly or with a subjective

mens rea.1 In its decision below, the CAAF

fundamentally distorted–if not eliminated–the basic

principles of the constitutional requirement of a mens

rea element for military defendants, absent a specific

intent element in a particular punitive Article of the

UCMJ. CAAF's decision will encompass all UCMJ

offenses which must separate unlawful from innocent

conduct as 10 U.S.C. § 933 does.

Black’s Law Dictionary, 9 th ed., 1075 (2009), defines mens

rea as: “The state of mind that the prosecution, to secure a

conviction, must prove that a defendant had when committing a

crime.”

The CAAF affirmed Major Voorhees’ convictions of

five Specifications (counts) of violating § 933, which

does not have a mens rea for “conduct unbecoming an

officer and a gentleman,”2 and affirmed his sentence to

a Dismissal (under dishonorable conditions). A

Dismissal for an officer carries not only a life-long

stigma, but also deprives the officer of any military

pension benefits they may be entitled to, and virtually

all VA benefits the veteran may be entitled to. In

Petitioner’s case this is true even after completing six

combat deployments.3 As relevant here, CAAF granted

review on this issue:

“Whether the military judge erred when she

failed to instruct the panel on a mens rea for

Article 133, UCMJ [10 U.S.C. § 933].”

Pet.App. 3a.

CAAF’s decision below ignored this Court’s

precedents since at least Morissette v. United States,

342 U.S. 246, 251 (1952)(requiring the “concurrence of

an evil-meaning mind with an evil-doing hand. . . .”),

Four Specifications dealt with language that he directed

to female Air Force members, e.g., “I would like to take you back

to my room,” and one of actual “conduct,” viz., a consensual back

rub, given to an adult female, enlisted Air Force member. Cf.,

Lawrence v. Texas, 539 U.S. 558, 564 (2003) [“The petitioners were

adults at the tim e of the alleged offense. Their conduct was in

private and consensual.”]

There is another lifetime, direct consequence. Under 18

U .S.C. § 922(g)(6), a person “who has been discharged from the

Armed Forces under dishonorable conditions,” is prohibited from

possessing firearms or ammunition. Compare, Rehaif, supra.

continuing through Rehaif.4 CAAF’s decision

disregards not only the teaching of Morissette but,

contrary to Elonis, framed its holding as follows:

In the instant case, a general intent mens rea

would require only that Appellant intended

to commit the conduct alleged in each

specification—i.e., making inappropriate

comments and massaging his subordinate’s

back. It was up to the panel [jury] to

determine whether Appellant’s acts

constituted conduct unbecoming.

Pet.App. 24a. In other words, CAAF is interpreting

Congressional silence as to a military defendant's state

of mind as only requiring the prosecution to prove

negligence, namely that a reasonable person (or juror)

would believe that Petitioner's speech and conduct

were "unbecoming an officer." That approach flies in

the face of Elonis, and denotes an objective intent, with

no mens rea requirement.5

OPINIONS BELOW

The CAAF opinion (Pet.App. 1a-27a) is reported at

79 M.J. 5 (CAAF 2019). CAAF denied Reconsideration

(Pet.App. 80a) without opinion, 79 M.J. 218 (CAAF

Carter v. United States, 530 U.S. 255 (2000), is not to the

contrary, as the statute at issue–bank robbery–required that the

actus reus be done “by force and violence,” hardly innocent

conduct.

It also ignores the separation of powers issue articulated

in United States v. Davis, 139 S.Ct. 2319, 2333 (2019)[decided days

before Voorhees], that it is a Congressional function to define

crimes.

2019).The AFCCA opinion (Pet.App. 28a-45a), after

resentencing is unreported, but available at 2018 WL

3629893 (AFCCA 2018). The initial AFCCA opinion

(Pet.App. 46a-78a), is unreported, but available at

2016 WL 11410622 (AFCCA 2016).

JURISDICTION

CAAF’s decision below was rendered on June 27,

2019. Petitioner timely sought reconsideration, which

was denied on August 8, 2019. The Chief Justice

granted Petitioner’s Application to extend the time to

file his Petition for Certiorari to December 23, 2019.

This Court’s jurisdiction is invoked per 28 U.S.C. §

1259(3).

CONSTITUTIONAL and STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment of the U.S. Constitution

provides as relevant:

No person shall . . . be deprived of life,

liberty, or property, without due process of

law . . . .

The Sixth Amendment of the U.S. Constitution

provides as relevant:

In all criminal prosecutions, the accused

shall enjoy the right . . . to be informed of the

nature and cause of the accusation . . . .

Title 10, U.S. Code § 836(a), provides in relevant

part:

Pretrial, trial, and post-trial procedures,

including modes of proof, for cases arising

under this chapter triable in courts-martial

. . . may be prescribed by the President by

regulations which shall, so far as he

considers practicable, apply the principles of

law and the rules of evidence generally

recognized in the trial of criminal cases in the

United States district courts. . . . [Emphasis

added]

Title 10, U.S. Code § 933, provides in relevant part:

Any commissioned officer . . . who is

convicted of conduct unbecoming an officer

and a gentleman shall be punished as a

court-martial may direct.

STATEMENT

1. Until his conviction, Major Voorhees was an Air

Force [AF] pilot. He flew a modified version of the C130 “Hercules” tactical cargo/transport plane,

designated as an EC-130. The “E” designation signified

that the aircraft was configured for electronic warfare

[EW] and psychological operations. That included

providing intelligence, surveillance and reconnaissance

or EW support to ground-based military units in a

combat zone via highly sensitive and sophisticated

onboard electronic systems.

The EC-130 aircrews generally consisted of the

Aircraft Commander (pilot), co-pilot, navigator, and

flight engineer. The EW section–depending on the

particular mission–would consist of up to eight

additional members; EW specialists, linguists, and an

airborne maintenance technician for the EW

equipment. Major Voorhees was also cross-qualified as

an EW Officer [EWO]. At the time of his trial, he had

six combat deployments, had flown 179 combat

missions, with 1,183 combat flight hours.

2. Petitioner’s charges arose during the time-frame

of July 2012 to July 2013. The initial allegations did

not come to light until some seven months after their

return to the United States, when HB (a crewmember)

confessed to her husband that she had “cheated” on

him with Petitioner. Pet.App. 50a-51a.

3. Major Voorhees was tried by a general courtmartial [GCM], consisting of a Military Judge and

Members (jurors) at Davis-Monthan Air Force Base,

Arizona (his home Base) in early January 2015. Id. at

46a-47a. The Members convicted him of one

Specification of sexual assault in violation of the then

current version of 10 U.S.C. § 920; five Specifications

of “conduct unbecoming an officer” in violation of 10

U.S.C. § 933; and acquitted him of one § 933

Specification.6 Id.

The Members–in accordance with military

procedure–sentenced Petitioner to a Dismissal (under

dishonorable conditions), confinement for three years,

and total forfeiture of all pay and allowances on 9

January 2015. Id. He entered confinement that day.

Petitioner was convicted under 10 U.S.C. § 933 of

the following:

(1)

Asking [HB] “inappropriate questions, to wit:

‘Have you ever cheated on your husband?’,

‘Have you ever sent him pictures?’, and ‘Can

I have pictures of you?’”[Emphasis added];

Notably, this was the only § 933 offense charged that

involved a male AF member.

(2)

“At or near Baltimore, Maryland . . .

massage the back of [HB];”

(3)

“Make to [HB] an inappropriate statement or

question, to wit: ‘I would like to take you

back to my room;” [Emphasis added];

(4)

“Send unprofessional text messages to [MQ],

to wit: ‘What I want to say could end my

career and marriage,’ ‘Your (sic) a very

beautiful woman and I would love to be close

to you,’ ‘What’s your definition of cheating?’

‘So if I asked what color panties you were

wearing?’” [Emphasis added]; and

(5)

“Send unprofessional text messages to [BR],

to wit: ‘This is about to become a game to see

what else I can say that will slip by you,’

‘mind if I ask u (sic) a couple of personal

questions?’ ‘What I want to say could end my

career so I want to make sure you can keep

what I say between us because you seem

really cool?’ ‘Oh, really? What’s under there?’

‘I’ve had a crush on you.’” [Emphasis added].

Id. at 59a-60a.7

All individuals involved were adults; none made any

contemporaneous complaint to anyone.

4. By virtue of his sentence, Petitioner appealed to

the AFCCA via the version of 10 U.S.C. §

It requires a leap-of-faith to jump from conduct (or

speech) that is “inappropriate” or “unprofessional” to that which

is “criminal.” The Military Judge instructed the M embers that

“unbecoming conduct” “means conduct morally unfitting and

unworthy rather than merely inappropriate or unsuitable

misbehavior . . . .” Pet.App. 22a-23a.

866(b)(1)[2012], then applicable. That court reversed

and dismissed with prejudice the sexual assault

conviction on the basis of factual insufficiency, i.e., the

prosecution failed to disprove that Petitioner had a

reasonable belief that HB was consenting to the sexual

activity. Id. at 57a, 77a-79a. The AFCCA, however,

rejected Petitioner’s arguments that the § 933 offenses

failed to legally state offenses and that the Military

Judge had a duty to “read into” the statute during her

instructions to the Members, a mens rea element. Id. at

61a-62a. It then remanded the case for resentencing.8

Id. at 79a. Petitioner was subsequently released from

confinement after serving slightly more than two years

of his sentence.

5. Upon remand, Petitioner elected to be resentenced by a different Military Judge alone versus

Members. Id. at 30a. After the re-sentencing

proceeding, the Military Judge sentenced Petitioner to

a Dismissal and a Reprimand. Id. The GCM Convening

Authority only approved the Dismissal, which, as noted

above, is under dishonorable conditions. Id.

6. Petitioner again appealed to the AFCCA, which

re-affirmed his convictions under 10 U.S.C. § 933, and

affirmed his sentence to a Dismissal. Id. at 45a.

7. Major Voorhees then petitioned CAAF for

review, which in turn granted review–as relevant

here–on two issues:

Under military procedure then in effect, sentences were

imposed in a unitary fashion, i.e., one aggregate sentence is

imposed for all convictions combined, versus individual sentences

for each conviction, to then run concurrently or consecutively.

Whether or not the charged § 933 offenses

legally stated offenses; and

“[W]hether the military judge erred when

she failed to instruct the panel on a mens rea

for Article 133, UCMJ [10 U.S.C. § 933].” Id.

at 3a.

In its decision, CAAF merged these two issues into a

single “mens rea” issue. Id.

CAAF concluded–in a footnote–that using the terms

“inappropriate” or “unprofessional” coupled with the

phrase “unbecoming an officer and a gentleman,” were

sufficient “words of criminality to state an offense. . . .”

Id. at 21a.9 Relying on one of its earlier “general

intent” decisions, CAAF concluded that where the

crime “was a military-specific offense . . . the

government need only ‘prove general intent in order to

obtain a conviction.’” [Id. at 23a], [quoting United

States v. Caldwell, 75 M.J. 276, 278 (CAAF), cert.

denied, 137 S.Ct. 248 (2016)]. But, CAAF nowhere

explains the source of this conclusion. The Fifth and

Sixth Amendments do not provide authority to excuse

a mens rea requirement, nor does the UCMJ.

Again, quoting Caldwell, CAAF held “We therefore

conclude that general intent sufficiently separates

lawful and unlawful behavior in this [§ 933] context. .

Without distinguishing or disapproving a prior decision

to the contrary, both courts below ignored the following: “The

addition of the phrase ‘which conduct was unbecoming an officer

and a gentleman’ adds nothing to the legal effect of the purported

misconduct.” United States v. Shober, 26 M.J. 501, 503 (AF CMR),

aff’d, 23 M.J. 249 (CMA 1986).

. .” Id. at 27a. How this serves to distinguish a “lawful”

back rub from an “unlawful” one, was not addressed by

CAAF. Furthermore, nowhere in its discussion of the

mens rea issue in § 933, does CAAF discuss, much less

cite to, the long-standing precedents of this Court,

beginning with Morissette, to Elonis, to Rehaif.10 This

Court has never held that criminal prosecutions under

the UCMJ are somehow exempt from its mens rea

jurisprudence. Nor does the Court’s decision in Parker

v. Levy, 417 U.S. 783 (1974), suggest such an

exemption–indeed, as discussed infra, Levy, portends

the contrary.

Finally, CAAF’s decision here is internally

inconsistent. CAAF concluded that a general intent of

the actus reus sufficiently “separates lawful and

unlawful behavior” in the context of § 933, Id. at 26a27a, CAAF then sets forth an inconsistent test, stating

that “conduct unbecoming” depends upon “whether the

officer possessed general intent to act indecoriously,

dishonestly, or indecently.” [Emphasis added; Pet.App.

25a-26a]. But, Major Voorhees was not charged with

acting “indecoriously, dishonestly, or indecently.”

Furthermore, regardless of CAAF’s judicially labeling

§ 933 as a “general intent” crime, the reality is that

when one “inten[ds] to act indecoriously, dishonestly, or

indecently,” that constitutes a mens rea which under

Elonis and Rehaif and their antecedents, must be

specifically instructed upon.

Rehaif was decided six days prior to CAAF’s decision

here, and roughly six weeks prior to CAAF denying Petitioner’s

Motion for Reconsideration.

REASONS FOR GRANTING THE PETITION

In our republic, a speculative possibility that

a man’s conduct violated the law should

never be enough to justify taking his liberty.11

CAAF’s decision marks a sharp departure from the

settled mens rea jurisprudence of this Court. It

establishes a negligence standard for criminal liability

under the guise of labeling 10 U.S.C. § 933 a “general

intent” crime, in direct conflict with Elonis. CAAF’s

general intent premise, if not corrected or clarified by

this Court, has the potential to affect hundreds of

military cases at the trial and appellate levels. Absent

intervention here, the Service Courts of Criminal

Appeals and CAAF will continue their erroneous

application of basic constitutional procedure–the

elimination of mens rea requirements–contrary to this

Court’s precedents.

I. CAAF’S DECISION CONTRAVENES THE

CONSTITUTION.

The Constitution grants Congress considerable

power in Article I, § 8. That includes the power to

deprive citizens of their liberty, their property, and

even their lives. It also gave Congress the power over

the Nation’s military by including the Make Rules

Clause, while Article II, § 2, cl.1, designates the

President as Commander-in-Chief. However, when it

came time to add the Bill of Rights to the Constitution,

the Drafters included only one military exclusion in the

Fifth Amendment, i.e., the Grand Jury exemption.

Nothing other than that exempts Congress from

United States v. Davis, 139 S.Ct. 2319, 2335 (2019).

enacting military criminal statutes which lessen (or

omit) the “fair notice” provisions of the Due Process

Clause and the Sixth Amendment’s Informed Clause.

Congress cannot create a crime–civilian or

military–with lifetime punishments which has no mens

rea element. In its decision below, CAAF assumed that

Congress could do so (without citing any authority),

but CAAF is simply wrong and only this Court can tell

them that. The issue here is not Congressional power

under the Make Rules Clause to delineate military

crimes. Rather, it is the more nuanced issue that when

Congress enacts a military criminal statute such as 10

U.S.C. § 933, must it also comply with the mens rea

element requirement? Furthermore, where the statute

itself is silent on that issue, must the military courts

(to include courts-martial) “read into” the elements of

the offense, a mens rea provision, as this Court has

repeatedly held in the civilian context? Here again,

CAAF said no–with due respect, CAAF is wrong again.

Unlike the express Grand Jury exception for military

criminal proceedings, nothing in the Constitution

exempts military crimes with a lifetime stigma and

prohibitions from a mens rea element. As this Court

held last term:

Respect for due process and the separation of

powers suggests a court may not, in order to

save Congress the trouble of having to write

a new law, construe a criminal statute to

penalize conduct it does not clearly proscribe.

United States v. Davis, 139 S.Ct. at 2333. Only this

Court can remind CAAF of this principle.

II. CAAF’S DECISION MISCONSTRUES

PLAIN, SIMPLE, AND LONG-STANDING

PRECEDENTS FROM THIS COURT.

A. The Mens Rea Jurisprudence.

The Fifth and Sixth Amendments to the

Constitution provide two fundamental and clear indicia

of the Framers’ intent with respect to criminal charges.

First, the Due Process Clause requires fair notice of the

elements of a criminal charge to include an applicable

mens rea element. With the exception of minor, “strict

liability” offenses, where a criminal statute does not

contain an express mens rea element, this Court has

required one to be “read into” it. Cf. Morissette, supra.

Second, the “Informed” Clause of the Sixth Amendment

expressly requires this as well. Justice Jackson said it

succinctly in Morissette: there must be a “concurrence

of an evil-meaning mind with an evil-doing hand. . . .”

342 U.S. at 257. CAAF’s decision below turns this

principle on its head to the detriment of our

Servicemembers. Here, the issue is both simple and

stark–how can a consensual back rub, between two

adults, in the privacy of a hotel room, constitute either

an “evil-meaning mind” or an “evil-doing hand?” Law,

logic, and common sense–separately and combined–say

that they cannot, thus requiring this Court’s

intervention to correct CAAF’s error.

Section 933 of Title 10, U.S. Code, is sui generis. It

neither defines what conduct or speech is unbecoming,

nor does it contain any mens rea element. As this case

demonstrates, it also criminalized speech which was

nothing more than sexual innuendo, e.g., “Have you

ever cheated on your husband?” or a wishful fantasy,

“I would like to take you back to my room.” It also

criminalized innocuous conduct, a consensual back

massage to an adult female in the privacy of her hotel

room. There was no allegation that the physical contact

was done with force, under duress, or under

circumstances that HB was incapable of consenting.

This was innocent behavior where mens rea was crucial

to establish that it was criminal. Cf. Lawrence v. Texas,

supra. Both appellate courts below rejected Petitioner’s

claims that the § 933 offenses as charged, not only

failed to state an offense, but that the Constitution

mandated a mens rea (“evil mind”) element requiring

an instruction to the fact-finder.

CAAF is wrong–both in its analysis and application

of this Court’s mens rea jurisprudence. Since Morissette

was decided in 1952, Congress has amended the UCMJ

numerous times with a major revision effective

beginning in 2019.12 At no time did Congress ever

state, much less imply, that the mens rea principles in

the Fifth and Sixth Amendments do not apply to the

UCMJ–even assuming that the Constitution would

allow it. Furthermore, CAAF ignored military

“regulations, or customs having the effect of law,”

where the Commander-in-Chief has since 1951,

exercised his delegated powers under 10 U.S.C. § 936,

in promulgating the Manuals for Courts-Martial–which

predated Morissette by one year–mandating that those

drafting military criminal charges under the UCMJ

allege “intent” as an element, or where none is

specified in the statute, such as with 10 U.S.C. § 933,

to include words of criminality to provide fair notice to

Nat’l Defense Authorization Act for FY 2017, Pub. L. No.

114-328, 130 Stat. 2000 (2016).

an accused.

The Constitution does not authorize this military

differentiation as it does in the Grand Jury contexts.

Congress has not claimed any such authority–even if it

could–under the Make Rules Clause. If CAAF had any

residual doubts on the mens rea issue, they could have

looked for guidance from the Commander-in-Chief in

the Manual For Courts-Martial. The Manual instructs

that, at a minimum, charges under 10 U.S.C. § 933,

must contain “words of criminality” to avoid the precise

issue here. Since the Government did not raise any

issue under the Make Rules Clause as providing any

authority for CAAF to exempt § 933 from the Manual’s

requirements or this Court’s precedents, they should

not be heard to do so now.

Since 1951, the year the UCMJ became effective,

t h e M anual for Co u r t s - M a r t i a l [ “ M C M

(1951)”](promulgated as an Executive Order pursuant

to the authority delegated to the President under 10

U.S.C. § 836), required in paragraph 28(a)(3)–in

addition to the statutory elements–the following:

Any intent, or state of mind such as guilty

knowledge, expressly made an essential

element of an offense should be alleged . . . If

the alleged act of the accused is not in itself

an offense, but is made an offense by

applicable statute (including Articles 133

and 134), regulations, or custom having the

effect of law . . . words importing criminality

such as “wrongfully,” “unlawfully,” “without

authority,” or “dishonorably,” depending

upon the nature of the particular offense

involved, should be used to describe the

accused's acts. [Emphasis added].13

Major Voorhees was convicted of violating Article

133, UCMJ, 10 U.S.C. § 933, with Specifications that

failed to allege any “intent, or state of mind,” much less

alleging any words of criminality. General intent

suffices in a criminal statute only when it protects

innocent conduct. Thus in Carter, there was nothing

“innocent” about robbing a bank by “force and

violence,” so a general intent sufficed.

CAAF held two things that significantly twist this

Court’s precedents into a proverbial pretzel. First, it

said, “Congress is not required to include an explicit

mens rea in every article of the UCMJ.” Pet.App. 23a.

That is true in the abstract, but it ignores the principle

that mens rea is required to separate innocent conduct

from that which is criminal–the issue here. Second,

CAAF held: “[a] statute’s silence can be indicative of a

general intent scienter.” Id. That misreads and

misapplies this Court’s holdings–it is accurate only

where a criminal statute cannot ensnare innocent

conduct, such as in Carter. Here, the speech and

conduct at issue, were facially and presumptively

innocent.

In United States v. X-Citement Video, Inc., 513 U.S.

64, 69 (1994), this Court made it clear that “some form

of scienter is to be implied in a criminal statute even if

not expressed . . . .” Here, CAAF made no effort “to

At the time of Petitioner’s trial, the MCM (2012), was in

effect, and although the formatting has since changed, Rule

307(c)(3), Discussion ¶ (G)(i) and (ii), Rules for Courts-Martial

[“RCM”] continue to use virtually the same language as the 1951

edition through the current MCM (2019).

avoid construing [§ 933] to dispense with mens rea

where doing so would ‘criminalize a broad range of

apparently innocent conduct.” Staples v. United States,

511 U.S. 600, 610 (1994)[quoting Liparota v. United

States, 471 U.S. 419, 426 (1985)]. CAAF made no effort

to explain just how Petitioner’s wishful statement to an

adult female that “I would like to take you back to my

room,” without more, without words of criminality,

without any mens rea element, is or could be criminal.

CAAF’s response was the antithesis of the

constitutional requirements of fair notice and scienter:

“It was up to the panel [jury] to determine whether

Appellant’s acts constituted conduct unbecoming.”

Pet.App. 24a. But, how would anyone–Petitioner

included–know that his verbal fantasizing (or the

private, consensual back rub) was criminal, especially

as adjudged from the perspective of a fact-finder who

received no mens rea instructions?

It is important to note, that should this Court grant

Major Voorhees relief, that “good order and discipline”

is not going to disappear in our military. See, e.g., 10

U.S.C. § 934. Nor was Petitioner tried on a host of

other offenses under the UCMJ, such as

Fraternization, MCM (2012), Part IV, ¶ 83;

Maltreatment, 10 U.S.C. § 893 (2012)(which includes

sexual harassment); Indecent Language, MCM (2012),

Part IV, ¶ 89; etc. Indeed, all five of Petitioner’s

convictions could have been charged under 10 U.S.C. §

934, as violating “good order and discipline.” But,

under CAAF’s § 934 jurisprudence, that added an

element to plead and prove that the speech or conduct

violated “good order and discipline.” United States v.

Fosler, 70 M.J. 225 (CAAF 2011). By charging Major

Voorhees under § 933, without a mens rea element, it

did what Morissette warned of, it “ease[d] the

prosecution’s path to conviction. . . .” 342 U.S. at 263.

Our constitutional scheme certainly demands more.

Justice Gorsuch hit the proverbial nail on the head in

his separate opinion in Sessions v. Dimaya, 138 S.Ct.

at 1224, (Gorsuch, J., concurring in part and

concurring in judgment): “The law’s silence leaves

judges to their intuitions and the people to their fate.

In my judgment, the Constitution demands more.”

Writing for the Court in United States v. Davis, 139

S.Ct. 2319, 2323 (2019), Justice Gorsuch noted in a

slightly different context, the “responsibility for

defining criminal behavior [is given] to unelected

prosecutors and judges . . . .” That is exactly what

happened here. Unelected prosecutors–not Congress,

not the Commander-in-Chief with both inherent and

delegated powers, but military prosecutors–decided

what speech and what conduct in their opinions fell

within the sweep of “conduct unbecoming”under § 933

to criminally charge Petitioner. CAAF then eschewed

any mens rea element instruction to the fact-finder,

which likewise, only served to “to ease the

prosecution’s path to conviction.” Morissette, supra.

CAAF’s decision below is not an outlier. Just weeks

earlier, CAAF denied reconsideration of its decision in

United States v. McDonald, 78 M.J. 376, recon. denied

79 M.J. 94 (CAAF 2019), involving a conviction under

10 U.S.C. § 920 [sexual assault].14 CAAF utilized their

expanding “general intent” approach to the mens rea

issue by not requiring any instructions be “read into”

M cDonald’s Petition for Certiorari is pending at this

Court under Dkt. No. 19-557.

any provision of the UCMJ without a stated specific

intent element as it did here. CAAF’s dramatic and

erroneous deviation from long-settled precedents from

this Court, as well as 68 years of Presidential direction

to add words of criminality for a mens rea component,

is constitutionally mistaken. Morissette’s warning has

now come to fruition via CAAF:

The purpose and obvious effect of doing away

with the requirement of a guilty intent is to

ease the prosecution’s path to conviction, to

strip the defendant of such benefit as he

derived at common law from innocence of evil

purpose, and to circumscribe the freedom

heretofore allowed juries.

342 U.S. at 263.

This case demonstrates that CAAF’s current

approach to mens rea is wrong as it leaves the

determination as to what is criminal or innocent

conduct to prosecutors, unelected judges, and

uninstructed Members. Here, the words of a wishful

fantasy, “I would like to take you to my room,” or a

consensual back rub between two adults in private,

were deemed to constitute a violation of 10 U.S.C. §

933, yet according to CAAF, did not require proof of

any mens rea or instruction on intent to the Members,

for facially innocent conduct. Words can be slippery

things as this case demonstrates. What differentiates

words that somehow rise to the level of criminal

“conduct unbecoming,” from those that are simply

crude? That distinction is the core of this Petition.

B. Parker v. Levy.

The Government cannot find solace in Parker v.

Levy, 417 U.S. 733 (1974). Army Captain Levy was

convicted of inter alia, violating 10 U.S.C. § 933, as was

Major Voorhees. Levy compels reversal for two reasons.

First, there was no mens rea issue there because Levy’s

§ 933 charge included appropriate words of criminality,

that he “wrongfully and dishonorably” committed a

violation of § 933. Id. at 739, n. 6, providing an

appropriate mens rea element. Second, Levy compels

reversal because this Court recognized that “Decisions

of this Court during the last century have recognized

that the longstanding customs and usages of the

services impart accepted meaning to the seemingly

imprecise standards of Arts. 133 and 134.” Id. at 74647 [Emphasis added]. These “customs and usages” are

taught to every recruit, both officer and enlisted, and

include, e.g., saluting superior officers when outdoors

and in uniform; standing at attention and saluting the

Flag as it is raised, lowered, or passes by while in

uniform; referring to superior officers as “Sir” or

“Ma’am;” etc. For military prosecutors, the “customs

and usages” in drafting criminal charges–at least since

1949–require words of criminality where the

underlying statute does not contain an intent

element.15

Since President Truman’s MCM (1951),

implementing the UCMJ, the “customs and usages of

the services” have mandated that words of criminality

Prior to the enactm ent of the UCMJ, similar

requirements were found in the Army Manual for Courts-Martial

(1949), ¶ 29(a), under the former Articles of W ar. Copies of all

MCM’s are available at the Library of Congress website at:

http://www.loc.gov/rr/frd/Military_Law/CM-manuals.html [Last

accessed: 6 December 2019].

be added to § 933 specifications (counts) to

accommodate the constitutional mens rea element

requirements. Thus, CAAF ignored the command of

this Court to look at § 933 through the “longstanding

customs and usages of the services” vis-a-vis the mens

rea issue. At issue in Levy was whether or not § 933

was “void for vagueness.” Petitioner does not raise that

issue herein.16

Congress has abrogated many of the foundational

pillars Levy was based upon. The Court in Levy relied

upon a pre-UCMJ plurality decision, Burns v. Wilson,

346 U.S. 137, 140 (1953), which held: “military law. . .

is a jurisprudence which exists separate and apart

from the law which governs in our federal

government.” While perhaps true at one point in time,

by the time Burns was decided, Congress had expressly

rejected that concept when it enacted 10 U.S.C. §

836–now § 836(a)–bringing military practice under the

UCMJ in line with “the principles of law and the rules

of evidence generally recognized in the trial of criminal

cases in the United States district courts. . . .”

Additionally, as part of the UCMJ, Congress created a

civilian appellate court, the Court of Military Appeals,

since renamed the CAAF.

In 1984, the President, using his power, both

inherent as Commander-in-Chief and as delegated by

Congress in § 836, promulgated the Military Rules of

Evidence, in the MCM (1984), a virtual analogue (with

minor exceptions) to the Federal Rules of Evidence. In

Petitioner does not concede the vagueness issue, only

that it was not raised below.

1989, Congress enacted 10 U.S.C. § 867a, which

permits this Court to review “[d]ecisions of the United

States Court of Appeals for the Armed Forces” by a

writ of certiorari, thus permitting review and

Constitutional “supervision” of CAAF’s decisions. In

2001, Congress enacted 10 U.S.C. § 825a, mandating

that there be “not less than 12” Members in most

capital cases, as in federal capital cases; and in Loving

v. United States, 517 U.S. 748 (1996), this Court

approved the President’s inclusion of “aggravating

factors” in military capital cases in the then Rule 1004,

Rules for Courts-Martial, MCM (1984).

Thus, the legal landscape has changed considerably

since the pre-UCMJ era of Burns v. Wilson, as well as

since the time Parker v. Levy was decided in 1974 (he

was convicted in 1967), and military law under the

UCMJ is in reality, no longer “separate and apart”

from the principles and practice of federal criminal

law. See generally, Sen. Sam Irvin, Jr., The Military

Justice Act of 1968, 45 Mil. L. Rev. 77, 83

(1969)[describing Act which “modernizes outmoded and

cumbersome military trial procedures to conform more

closely with federal court practices.”].

C. CAAF Ignored Elonis and Rehaif.

CAAF did not reference (or cite to) either Elonis or

Rehaif in its decision. But, in Rehaif, this Court

unequivocally stated, “We have interpreted statutes to

include a scienter requirement even where the

statutory text is silent on the question.” 139 S.Ct. at

2197. That concept is “traceable to the common law.”

Id. at 2195. The text of § 933 is silent as to scienter.

Rehaif went on to state, “we normally presume that

Congress did not intend to impose criminal liability on

persons who, due to lack of knowledge, did not have a

wrongful mental state.” Id. at 2198. Whether or not the

Government could have proven “a wrongful mental

state” here, is not the issue. The focus must be on the

fact that Petitioner’s panel was never instructed as to

any scienter element and CAAF’s avoidance of the

issue by simply labeling § 933 a “general intent” crime,

misses the mark.

Elonis held with clarity that “[t]he ‘central thought’

is that a defendant must be ‘blameworthy in mind’

before he can be found guilty, a concept courts have

expressed over time through various terms such as

mens rea, scienter, malice aforethought, guilty

knowledge, and the like.” 135 S.Ct. at 2009, [citing

Morissette, 342 U.S. at 252]. But, CAAF failed to

address how an aspirational statement, “I would like to

take you to my room,” or how a private, consensual

back rub between two adults, rises to the level of being

“blameworthy in mind.” Elonis dealt with speech, as do

four of Petitioner’s five convictions. But, as this Court

held:

Elonis's conviction, however, was premised

solely on how his posts would be understood

by a reasonable person. Such a “reasonable

person” standard is a familiar feature of civil

liability in tort law, but is inconsistent with

“the conventional requirement for criminal

conduct—awareness of some wrongdoing.”

[citing Staples, 511 U.S., at 606–607].

135 S.Ct. at 2011. Elonis continued by observing:

“Elonis can be convicted, the Government contends, if

he himself knew the contents and context of his posts,

and a reasonable person would have recognized that

the posts would be read as genuine threats. That is a

negligence standard.” Id. That is precisely the

standard CAAF used to affirm Petitioner’s

convictions–that a “reasonable person would have

recognized” that his language and conduct were

“unbecoming.”

Here, CAAF concluded as follows:

The military judge’s instructions adequately

explained the actus reus of Appellant’s

crimes—actions that could not, under the

circumstances, have been innocent—and

informed the members that they were to

consider Appellant’s conduct “under the

circumstances.” Under our precedent, this

instructional language “can reasonably be

understood as requiring the panel members

to determine whether Appellant” knew that

he was engaging in certain conduct. [citing

Caldwell, 75 M.J. at 283].

Pet.App. 27a. That conclusion contravenes the

conclusion of this Court in Elonis: “. . . Elonis’s

conviction cannot stand. The jury was instructed that

the Government need prove only that a reasonable

person would regard Elonis’s communications as

threats, and that was error. Federal criminal liability

generally does not turn solely on the results of an act

without considering the defendant's mental state.” 135

S.Ct. at 2012.

III. THE IMPORTANCE OF THIS CASE.

This case is profoundly important to the proper

functioning of our military justice system under the

UCMJ. For almost 70 years, Congress via 10 U.S.C. §

836, and the Commander-in-Chief via the Manuals for

Courts-Martial, have uniformly held that if a punitive

provision of the UCMJ does not contain an express

intent element, a mens rea element must be read into

that statute’s elements consistent with federal criminal

practice. Virtually every day at U.S. military bases

around the world, some Soldier, Sailor, Airman, or

Marine will be in jeopardy of being convicted of

innocent conduct based upon CAAF’s erroneous

interpretation and application of mens rea.17

In McDonald, for example, CAAF’s analysis was

clearly faulty when it rationalized that because rape

was historically a general intent crime, that sexual

assault under 10 U.S.C. § 920 is likewise a general

intent crime. 78 M.J. at 380. But, that comparison is

inapposite. Rape, under the UCMJ, historically

consisted of sexual penetration (however slight) “by

force and without consent.” MCM (1951), ¶ 199(a). As

in Carter, the “by force and without consent” elements

sufficed to protect innocent conduct.

CAAF’s error is highlighted by its conclusion in

McDonald, “Because we have determined that

Congress intended [then] Article 120(b)(1)(B) [10

U.S.C. § 920(b)(1)(B)] to state a general intent offense,

that is the end of the matter. 78 M.J. at 380-81

[emphasis added]. But, Morissette and its progeny

emphatically demonstrate that it is not “the end of the

matter” with respect to the mens rea issue, and this

Court respectfully must correct CAAF.

This includes 1,380,000 active duty members (including

the Coast Guard) as of 31 October 2019. Source:

[la st

h ttp s://w w w .d m d c.o sd .m il/a p p j/d w p /d w p _ r e p o r ts.jsp

accessed: 17 December 2019].

Finally, this case provides an ideal vehicle to

resolve the military mens rea issue identified here. It

was litigated extensively and expressly below as the

Appendices demonstrate. CAAF’s refusal to reconsider

its decision based upon Elonis, establishes that it is not

about to alter its “general intent” approach to mens rea

under the UCMJ, absent this Court’s intervention. The

matter will not percolate in the Service appellate

courts as they are bound by CAAF’s precedents. The

federal Circuit Courts of Appeal lack jurisdiction over

courts-martial convictions, except in the habeas corpus

context.

The issue needs to be resolved one way or the other,

and only this Court can resolve it. It is not going to go

away as Caldwell (certiorari denied); McDonald

(certiorari pending); and this case demonstrate.

Furthermore, until it is resolved, competent defense

counsel will continue to litigate the issue.

CONCLUSION

The petition for a writ of certiorari respectfully

should be granted. Alternatively, certiorari should be

granted, CAAF’s decision vacated, and the case

remanded to the CAAF for further consideration in

light of this Court’s decisions in Elonis, Rehaif, and

Davis.

Respectfully submitted,

DONALD G. REHKOPF , JR .

Counsel of Record

Law Office of Donald G. Rehkopf, Jr.

31 East Main Street, 2nd Floor

Rochester, New York 14614

(585) 434-0232

usmilitarylaw@gmail.com

and

BENJAMIN H. DEYOUNG,

Major, USAF

Appellate Defense Counsel

Air Force Appellate Defense Division

1500 W. Perimeter Rd, Suite 1100 JB

Andrews NAF, MD 20762-6604 (240)

612-4770

benjamin.h.deyoung.mil@mail.mil

Counsel for Petitioner

December 2019

APPENDIX

APPENDIX A

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

____________________

UNITED STATES

Appellee

Paul D. VOORHEES, Major

United States Air Force, Appellant

No. 18-0372

Crim. App. No. 38836 (reh)

Argued February 21, 2019—Decided June 27, 2019

Military Judges: Natalie D. Richardson (trial) and

Mark F. Rosenow (sentence rehearing)

For Appellant: Terri R. Zimmermann, Esq.

(argued); Major Jarett Merk and Jack B.

Zimmermann, Esq. (on brief).

For Appellee: Captain Anne M. Delmare

(argued); Colonel Julie L. Pitvorec, Lieutenant

Colonel Joseph Kubler, and Mary Ellen Payne,

Esq. (on brief).

Judge SPARKS delivered the opinion of the

Court, in which Chief Judge STUCKY, and

Judges RYAN, OHLSON, and MAGGS, joined.

______________

Judge SPARKS delivered the opinion of the Court.

A panel of officer members convicted Appellant,

contrary to his pleas, of five specifications of conduct

unbecoming an officer and a gentleman and one

specification of sexual assault in violation of Articles

133 and 120, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 933, 920 (2012). The panel

acquitted Appellant of one specification of conduct

unbecoming an officer and a gentleman. The members

sentenced Appellant to forfeiture of all pay and

allowances, three years of confinement, and dismissal.

The convening authority approved the sentence as

adjudged.

The United States Air Force Court of Criminal

Appeals set aside Appellant’s Article 120, UCMJ,

conviction for factual insufficiency, but affirmed his

remaining convictions and ordered a sentence

rehearing. United States v. Voorhees, No. ACM 38836,

2016 WL 7028962, at *2, 2016 CCA LEXIS 752, at *2

(A.F. Ct. Crim. App. Nov. 23, 2016) (unpublished). A

military judge sitting alone conducted the sentence

rehearing for the remaining five Article 133, UCMJ,

convictions, and sentenced Appellant to a dismissal

and a reprimand. The convening authority approved

the dismissal.

We granted review to determine: (1) whether

trial counsel’s final arguments on the merits

contained prejudicial prosecutorial misconduct and (2)

whether the military judge erred when she failed to

instruct the panel on a mens rea for Article 133,

UCMJ. 1 We now hold neither issue warrants relief.

Background

The lower court adequately summarized the

facts underlying Appellant’s offense as follows:

Appellant’s

convictions

for

conduct unbecoming are rooted in the

sexual comments and actions he directed

toward subordinate female Airmen with

whom he deployed or went on temporary

duty assignments (TDY) on different

occasions. Appellant is an EC–130 pilot

who performed duty as an aircraft

commander and a co-pilot during several

deployments to Afghanistan. While TDY,

deployed, and transiting to and from

1 Appellant also petitioned this Court to review the

mens rea issue through a failure to state an offense analysis,

and asked us to decide it separately from the instructional error

issue. We thought it sufficient to address mens rea solely

through our review of the military judge’s instructions.

deployment, Appellant used electronic

communications to make a variety of

comments with sexual undertones to a

Senior Airman …, a Technical Sergeant

…, and a First Lieutenant …. The

comments included telling the Senior

Airman he wanted to take her back to his

hotel room, asking all three individuals

if they cheated on their husband or

significant other, and asking two of them

about the undergarments they were

wearing.

Voorhees, 2016 WL 7028962, at *2, 2016 CCA LEXIS

752, at *3. Appellant was also convicted of conduct

unbecoming an officer for giving Senior Airman HB a

back massage. At the time of this massage, “Appellant

served as the aircraft commander for an eightmember aircrew where [Senior Airman] HB was the

only female and the junior member of the crew.”

Voorhees, 2016 CCA LEXIS 752, at *4, 2016 WL

7028962, at *2.

Discussion

I. Prosecutorial Misconduct

Appellant alleges trial counsel’s findings and

rebuttal arguments contained numerous instances of

prosecutorial misconduct, ranging from personal

attacks on Appellant and his defense counsel, to

improper vouching and expressing personal opinions.

We review prosecutorial misconduct and

improper argument de novo and where, as here, no

objection is made, we review for plain error. United

States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018).

“The burden of proof under plain error review is on the

appellant.” Id. (citing United States v. Sewell, 76 M.J.

14, 18 (C.A.A.F. 2017)). “Plain error occurs when (1)

there is error, (2) the error is clear or obvious, and (3)

the error results in material prejudice to a substantial

right of the accused.” Id. at 401 (internal quotation

marks omitted) (quoting United States v. Fletcher, 62

M.J. 175, 179 (C.A.A.F. 2005)). Thus, we must

determine: (1) whether trial counsel’s arguments

amounted to clear, obvious error; and (2) if so, whether

there was “a reasonable probability that, but for the

error, the outcome of the proceeding would have been

different.” United States v. Lopez, 76 M.J. 151, 154

(C.A.A.F. 2017) (internal quotation marks omitted)

(quoting Molina-Martinez v. United States, 136 S. Ct.

1338, 1343 (2016)); see also United States v.

Tovarchavez, __ M.J. __ (8) (C.A.A.F. 2019)

(explaining that, where nonconstitutional error is

forfeited, the Molina-Martinez test should be applied).

As we have explained repeatedly:

Trial prosecutorial misconduct is

behavior by the prosecuting attorney

that oversteps the bounds of that

propriety and fairness which should

characterize the conduct of such an

officer in the prosecution of a criminal

offense. Prosecutorial misconduct can be

generally defined as action or inaction by

a prosecutor in violation of some legal

norm or standard, e.g., a constitutional

provision, a statute, a Manual rule, or an

applicable professional ethics canon.

Prosecutors have a duty to refrain from

improper methods calculated to produce

a wrongful conviction.

Andrews, 77 M.J. at 402 (internal quotation marks

omitted) (quoting Fletcher, 62 M.J. at 178, United

States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996, and United

States v. Berger, 295 U.S. 78, 88 (1935)).

As trial counsel tried to establish his bona fides

with the court members during voir dire, he

introduced himself as an attorney of considerable

experience and gravitas:

I’m Captain Josh Traeger. I’m a senior

trial counsel assigned to Peterson Air

Force Base. In that capacity I travel

around the world, between 200 and 250

days a year, prosecuting the Air Force’s

most serious cases.

….

… And on behalf of the Unites State [sic]

of America, I am happy to be prosecuting

this case.

Despite his self-described expertise, trial counsel’s

findings and rebuttal arguments were riddled with

egregious misconduct, much of which amounted to

clear, obvious error. We are most concerned with trial

counsel’s: (1) personal attacks on defense counsel; (2)

personal attacks on Appellant; and (3) expressing

personal opinions, bolstering, and vouching. We

address each in turn.

Personal Attacks on Defense Counsel

First, trial counsel accused defense counsel of

“misplaced lying,” and made the defense theory of the

case seem fantastical, saying “defense counsel’s

imagination is not reasonable doubt.” Both

statements amount to clear, obvious error. 2

“[I]t is … improper for a trial counsel to attempt

to win favor with the members by maligning defense

The Government contends trial counsel’s attack on

defense counsel was simply challenging “defense counsel’s

misrepresentation of the record and the law during closing

argument.” If the defense counsel mischaracterizes the evidence

or misstates the law, the trial counsel may object, ask the

military judge for an instruction, and explain the

mischaracterization during rebuttal argument. But he may not

label the defense counsel a liar or fabricator, nor may he engage

in any argument amounting to prosecutorial misconduct. See

Fletcher, 62 M.J. at 181.

counsel,” including accusing the defense counsel of

fabrication. See Fletcher, 62 M.J. at 181–82 (citations

omitted). As Fletcher warned, but trial counsel failed

to heed, when trial counsel maligned defense counsel,

he risked both turning the trial into a “popularity

contest” and influencing the members such that they

may not have been able to objectively weigh the

evidence against Appellant. Id. “Rather than deciding

the case solely on the basis of the evidence presented,

as is required, the members [could have been]

convinced to decide the case based on which lawyer

they like[d] better.” Id. (internal quotation marks

omitted) (quoting United States v. Young, 470 U.S. 1,

18 (1985)). Indeed, the panel could have been so

swayed by trial counsel’s disparaging remarks that

they “believe[d] that the defense’s characterization of

the evidence should not [have been] trusted, and,

therefore, that a finding of not guilty would [have

been] in conflict with the true facts of the case.” Id.

(internal quotation marks omitted) (quoting United

States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001)).

Trial counsel’s attacks on defense counsel were all the

worse given that they “were gratuitous and obviously

intended to curry favor with the members. [He] drew

… comparisons between [his] style and that of defense

counsel,” framing defense counsel as an overly

imaginative liar, while contrasting himself as a highly

experienced, well-trained prosecutor. 3 Id. at 182.

3 As above, during voir dire, trial counsel referred to

himself as “a senior trial counsel” who “travel[s] around the

world, between 200 and 250 days a year, prosecuting the Air

Force’s most serious cases.” He made a statement with similar

implications as he began his rebuttal argument, saying

The trial counsel’s obvious attempts to

win over the [panel] by putting [him]self

in a favorable light while simultaneously

making defense counsel look like a [liar]

who would say anything to get his client

off the hook were plainly improper. The

trial counsel erroneously encouraged the

members to decide the case based on the

personal qualities of counsel rather than

the facts. Not only did [his] comments

have the potential to mislead the

members, but they also detracted from

the dignity and solemn purpose of the

court-martial proceedings.

Id.

Personal Attacks on Appellant

Next, trial counsel also repeatedly attacked

Appellant’s character, calling him “perverted,” “sick,”

and a “narcissistic, chauvinistic, joke of an officer.” At

one point, trial counsel went so far as to describe

Appellant as, “[n]ot an officer, not a gentleman, but a

pig.” Later, trial counsel stressed this theme further,

adding,

“Disgusting.

Disgusting.

Deplorable.

“Members, I don’t—I don’t go TDY and leave my family 250 days

a year to sell you a story. I don’t do that.” Together, these

statements may have falsely suggested to the panel that trial

counsel was so experienced he could select and try only winning

cases.

10a

Degrading. That’s the nature of the conduct that the

accused committed. That’s the nature of this man.” 4

These attacks on Appellant also amount to clear error.

See Andrews, 77 M.J. at 402 (holding trial counsel’s

references to the accused as a liar and Don Juan to be

error).

“Disparaging comments are also improper

when they are directed to the defendant himself.”

Fletcher, 62 M.J. at 182. Trial counsel’s word choice

served as “more of a personal attack on the defendant

than a commentary on the evidence.” Id. at 183.

“[S]uch conduct is inconsistent with the duty of the

prosecutor to ‘seek justice, not merely to convict.’ ” Id.

at 182 (quoting United States v. White, 486 F.2d 204,

206 (2d Cir. 1973)). Trial counsel had only to

demonstrate that Appellant violated the UCMJ—not

that he was perverted, deplorable, disgusting,

chauvinistic, narcissistic, or a pig. Nor was it

necessary for trial counsel to repeat these insults

throughout his argument; in doing so, trial counsel

risked unduly inflaming the passions of the panel. See

United States v. Clifton, 15 M.J. 26, 29, 30 (C.M.A.

1983) (“It is axiomatic that a court-martial must

render its verdict solely on the basis of the evidence

presented at trial” and “it is improper for counsel to

While it was error for trial counsel to use these

adjectives to disparage Appellant, it was not error for the trial

counsel to use these adjectives to describe Appellant’s conduct.

See generally Fletcher, 62 M.J. at 182 (explaining that

disparaging comments are improper when they amount to a

personal attack, directed at the accused; suggesting they do not

otherwise amount to misconduct).

11a

seek unduly to inflame the passions or prejudices of

the court members.” (citations omitted)).

Expressing Personal Opinions, Bolstering, and

Vouching

Trial counsel also improperly expressed his

personal opinion about Appellant’s guilt, utilized

personal pronouns, bolstered his own credibility, and

vouched for government witnesses. While a prosecutor

may argue that the evidence establishes an accused’s

guilt beyond a reasonable doubt, he is prohibited from

expressing his personal opinion that the accused is

guilty. See Young, 470 U.S. at 7.

Trial counsel also made the following statement

during his closing argument: “And here’s where

attention to detail is important. Here’s really where

the attention to detail—and I’ve been doing this a long

time. I’ve been trying cases a long time and I’ve

quickly learned that attention to detail is as important

as any other skill in the courtroom.”

And during rebuttal:

• “Technical Sergeant [BR] is an outstanding

airman; an outstanding noncommissioned

officer in the United States Air Force.”

• Referring to a Government witness’s

testimony: “That was his perception. That was

the truth.”

12a

• “And if there is any doubt in your mind as to

that point or the quality of the United States

evidence on this charge, rely entirely on Senior

Airman [HB’s] credibility. Hang your hat there,

because you can. Because that airman is

credible. She testified credibly; she told you

what happened to her.”

• “[Senior Airman HB’s] not lying. It’s the

truth. It’s what happened.”

• “Members, I don’t—I don’t go TDY and leave

my family 250 days a year to sell you a story. I

don’t do that. And I don’t stand up here and try

to appeal to your emotions. I think I made that

clear in talking about the government’s

presentation of evidence.”

• “But I’m not going to apologize for becoming

emotional when talking about a Major who

sexually assaulted a Senior Airman. I’m not

going to apologize for that.”

• “[W]e win. Clearly.”

• “I know that the defense counsel’s

imagination … is not reasonable doubt.”

(Emphasis added.)

• “I’m not in the business of convicting innocent

people, but this man is guilty.”

• Appellant is “without a doubt … guilty.”

These statements are all clear and obvious error.

From voir dire forward, trial counsel tried to

convince the members to convict based on his

purported integrity, credibility, and experience as an

13a

accomplished prosecutor, and vouched for the

credibility of his witnesses, rather than the evidence

presented.

The prosecutor’s vouching for the

credibility of witnesses and expressing

his personal opinion concerning the guilt

of the accused pose two dangers: such

comments can convey the impression

that evidence not presented to the jury,

but known to the prosecutor, supports

the charges against the defendant and

can thus jeopardize the defendant’s right

to be tried solely on the basis of the

evidence presented to the jury; and the

prosecutor’s opinion carries with it the

imprimatur of the Government and may

induce

the

jury

trust

the

Government’s judgment rather than its

own view of the evidence.

Young, 470 U.S. at 18–19; see also Fletcher, 62 M.J. at

180 (explaining that “use of personal pronouns in

connection with assertions that a witness was correct

or to be believed” is improper).

Prejudice

Although trial counsel’s misconduct amounted

to grievous error, Appellant fails to establish

prejudice. “In assessing prejudice, we look at the

cumulative impact of any prosecutorial misconduct on

14a

the accused’s substantial rights and the fairness and

integrity of his trial.” Fletcher, 62 M.J. at 184 (citation

omitted). “We weigh three factors to determine

whether trial counsel’s improper arguments were

prejudicial: ‘(1) the severity of the misconduct, (2) the

measures adopted to cure the misconduct, and (3) the

weight of the evidence supporting the conviction.’ ”

Andrews, 77 M.J. at 402 (quoting Sewell, 76 M.J. at

18). Under this test, Appellant has the burden to

prove that there is a “reasonable probability that, but

for the error, the outcome of the proceeding would

have been different.” Lopez, 76 M.J. at 154 (internal

quotation marks omitted) (citation omitted). Because

Appellant failed to demonstrate that trial counsel’s

misconduct was “so damaging” as to call into question

whether the members convicted Appellant on the

basis of the evidence alone, we cannot reverse here.

Sewell, 76 M.J. at 18 (internal quotation marks

omitted) (citation omitted); see also Andrews, 77 M.J.

at 402 (quoting Sewell, 76 M.J. at 18) (“[T]he third

factor [alone] may so clearly favor the government

that the appellant cannot demonstrate prejudice.”

(alterations in original)).

As indicated above, trial counsel’s improper

argument was severe. The misconduct was sustained

throughout argument and rebuttal, occurring with

alarming frequency. See Fletcher, 62 M.J. at 184

(listing “the raw numbers—the instances of

misconduct as compared to the overall length of the

argument,” as well as its persistence throughout

argument, as two “Fletcher factors” to consider when

determining the severity of prosecutorial misconduct).

15a

Its persistence throughout final arguments was

aggravated by the military judge’s total failure to offer

any curative instructions. See id. (listing “whether the

trial counsel abided by any rulings from the military

judge” as another “Fletcher factor”).

Despite the severity of trial counsel’s

misconduct and the absence of curative measures,

however, several other factors militate against finding

prejudice. First, defense counsel’s failure to object to

any of the prosecutorial misconduct is “some measure

of the minimal impact of [the] prosecutor’s improper

argument.” United States v. Gilley, 56 M.J. 113, 123

(C.A.A.F. 2001) (internal quotation marks omitted)

(citation omitted). In Andrews we warned defense

counsel that failing to object to prosecutorial

misconduct “may give rise to meritorious ineffective

assistance of counsel claims.” 77 M.J. at 404. In this

case, the record contains some indication that defense

counsel’s failure to object may have been a “tactical

decision” made as part of his case strategy, rather

than a sign of ineffectiveness. See Darden v.

Wainwright, 477 U.S. 168, 182 (1986) (finding no

prejudice from prosecutorial misconduct where a

defense counsel made “tactical decision[s]” in case

strategy). After standing by and allowing trial

counsel’s improper argument to proceed, defense

counsel told the panel that trial counsel’s argument

was merely an emotional appeal, made because the

Government’s case was weak. He described trial

counsel’s argument as “theatrics,” performed as a

product of:

16a

a lesson that’s taught at law schools

across the country and in the military

advocacy courses. And it is this: if you

have the facts, argue the facts. If you

have the law, argue the law. If you have

neither, then literally the lesson is to

pound your fist and try to appeal to the

emotions of the panel.

Defense counsel’s argument explains why he

acquiesced to trial counsel’s improper argument—not

because he was ineffective, but because he wanted

trial counsel to make a spectacle of himself. Defense

counsel sought to “plac[e] … the prosecutors’

comments and actions in a light that was more likely

to engender strong disapproval than result in

inflamed passions against” Appellant. Darden, 477

U.S. at 182. Put simply, in the context of the entire

court-martial, trial counsel’s arguments were unlikely

to prejudice the panel against Appellant. This is

especially true given the composition of the panel,

which leads to our next point.

The panel at Appellant’s court-martial was

comprised of colonels and lieutenant colonels. As

senior officers, these individuals were uniquely

situated to assess whether Appellant’s conduct was

unbecoming under Article 133, UCMJ. See Article

25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2) (2012)

(requiring that the convening authority detail officers

“best qualified for the duty by reason of age,

education, training, experience, length of service, and

judicial temperament” to serve as panel members).

17a

After all, these members too were bound by the

Manual for Courts-Martial, United States (MCM), and

required by Article 133, UCMJ, to act honorably,

gracefully, and decently, as officers and gentlemen.

See MCM pt. IV, para. 59.c.(2) (discussing the traits

expected of commissioned officers). Trial counsel’s

arguments were thus unlikely to impede these

experienced officers’ ability to recognize conduct

unbecoming and weigh the evidence against

Appellant. 5

In addition to defense counsel’s tactical

acquiescence and the members’ unique understanding

of the offense charged, the evidence that Appellant

violated Article 133, UCMJ, “so clearly favor[s] the

government that [A]ppellant cannot demonstrate

prejudice.” Sewell, 76 M.J. at 18. To have convicted

Appellant of Article 133, UCMJ, the panel must have

found:

1. That the accused did or omitted to do certain

acts; and

2. That, under the circumstances, these acts or

omissions constituted conduct unbecoming an

officer and gentleman.

5 In fact, defense counsel simply left it to the members to

decide whether Appellant’s conduct qualified as conduct

unbecoming, arguing as follows: “[I]t’s your call as to whether or

not those comments were just inappropriate or they went way

over the top. I’m not going to tell you one way or the other.” “Do

those charged words … rise to the level to be a … federal crime?

Is it inappropriate, distasteful, or is it way over the top?… But

that’s for you to decide when you go back there and deliberate.”

18a

MCM pt. IV, para. 59.b. (2016 ed.). 6 In the instant

case, the acts charged in the first element of each

specification alleged Appellant acted sexually

inappropriately toward his subordinates. In one

specification, the acts element alleged that Appellant

gave Senior Airman HB a back massage. In the other

four specifications, the acts element alleged Appellant

made

inappropriate

comments

various

subordinates. “Regardless of trial counsel’s improper

arguments, there was ample evidence in support of”

Appellant’s convictions. Andrews, 77 M.J. at 403.

Appellant conceded that he gave Senior Airman HB a

back massage when he argued she consented to the

massage as part of his defense to the Article 120,

UCMJ, offense. Each of the other four specifications

was supported by compelling in-court testimony or

documented with physical evidence in the form of text

messages.

Accordingly, Appellant’s court-martial was

neither perfect, nor fundamentally unfair. See

Darden, 477 U.S. at 183 (affirming the lower court’s

finding that the appellant’s “trial was not perfect …

but neither was it fundamentally unfair” (internal

quotation marks omitted) (citation omitted)).

Although trial counsel’s conduct reveals a lack of

6 Because the lower court set aside Appellant’s Article

120, UCMJ, conviction, we only analyzed the weight of the

evidence pertaining to the Article 133, UCMJ, offenses. Even if

trial counsel’s argument swayed the panel to wrongfully convict

Appellant of violating Article 120, UCMJ, the evidence as to the

Article 133, UCMJ, specifications was so strong that Appellant

cannot demonstrate prejudice. Fletcher, 62 M.J. at 184; Sewell,

76 M.J. at 18.

19a

practical legal skills and a level of courtroom etiquette

far below that which we expect of military officers,

judge advocates, and all experienced trial counsel, we

are “confident that the members convicted the

appellant on the basis of the evidence alone.” Fletcher,

62 M.J. at 184. “There was, therefore, no prejudice to

Appellant’s substantial rights.” Andrews, 77 M.J. at

403.

A Note on Prosecutorial Misconduct

Although the law precludes us from finding

plain error, trial counsel’s performance in this case

was not one we would expect from any lawyer, let

alone a “senior” trial counsel.

In every case, and especially a case alleging

unbecoming conduct, trial counsel should take care to

remember that they too are military officers and

should conduct themselves accordingly. In this case,

as he attempted to sway the members to convict

Appellant of conduct unbecoming pursuant to Article

133, UCMJ, trial counsel himself approached the line

of indecorum. Attacking one’s opposing counsel is as

unacceptable as launching ad hominem attacks on the

accused in open court. In our view, the token trait of a

good prosecutor is the ability to be adversarial without

being hostile, but here, unfortunately, trial counsel

was openly hostile and petty, leaving propriety and

good advocacy at the courtroom door. 7

7 The Government’s poor decision-making in this case

was not limited to the trial level. In its brief, the Government

20a

Trial counsel, however, was not the sole

attorney at fault during Appellant’s court-martial. As

we admonished in Andrews, “Military judges are

neither mere figurehead[s] nor are they umpire[s] in

a contest between the Government and accused;” they

too have a “sua sponte duty to [e]nsure that an accused

receives a fair trial.” 77 M.J. at 403–04 (alterations in

original) (internal quotation marks omitted) (citations

omitted). The military judge in Appellant’s case

simply allowed trial counsel to ramble on with his

improper argument. Similarly, although defense

counsel’s failure to object appears to have been a

conscious and tactical choice in the instant case, we

remind all defense counsel they “owe[s] a duty to

the[ir] client[s] to object to improper arguments early

and often.” Id. at 404.

This case aside, the consistent flow of improper

argument appeals to our Court suggests that those in

supervisory positions overseeing junior judge

advocates are, whether intentionally or not,

acknowledged that “[d]isparaging comments directed at an

accused can be improper,” but argued that “[i]n this case, trial

counsel’s comments were a reasonable inference from the

evidence admitted at trial, and not outside the norms of fair

comment in a court-martial where the appellant was accused of

conduct unbecoming of an officer.” Brief for the Government at

19, United States v. Voorhees, No. 18-0372 (C.A.A.F. Jan. 15,

2019). Appellate counsel repeated this sentiment at oral

argument. We find it deeply troubling that experienced appellate

attorneys persistently argued that it is within “the norms of fair

comment” for a trial counsel to refer to an accused as a “pig,” “a

pervert,” and “a joke of an officer.”

21a

condoning this type of conduct. As superior officers,

these individuals should remind their subordinate

judge advocates of the importance of the prosecutor’s

role within the military justice system and should

counsel them to “seek justice, not merely to convict.”

Fletcher, 62 M.J. at 182 (internal quotation marks

omitted) (citation omitted).

“Every attorney in a court-martial has a duty to

uphold the integrity of the military justice system,”

and multiple experienced attorneys failed to do so

here. Andrews, 77 M.J. at 404.

II. Article 133, UCMJ Mens Rea

Appellant also alleges that the military judge

erred when she failed to instruct the panel on a mens

rea for any of the Article 133, UCMJ, specifications. 8

We find no such error.

“Questions pertaining to the substance of a

military judge’s instructions, as well as those

involving statutory interpretation, are reviewed de

novo.” United States v. Caldwell, 75 M.J. 276, 280

Appellant also alleges the Article 133, UCMJ,

specifications wrongfully omitted words of criminality, but we

disagree. The specifications use the terms “inappropriate” or

“unprofessional” or allege the conduct in each specification was

unbecoming an officer and a gentleman. These allegations

sufficiently contain words of criminality to state an offense for

purposes of this appeal. See United States v. Maderia, 38 M.J.

494, 496 (C.M.A. 1994) (explaining the language “conduct

unbecoming” was sufficient to state an offense).

22a

(C.A.A.F. 2016) (citations omitted). “Because

Appellant did not object to the military judge’s failure

to instruct the members on a mens rea requirement …

we review this issue for plain error” as well. United

States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017).

“Military judges are required to instruct

members on the elements of each offense ….” United

States v. Davis, 73 M.J. 268, 272 (C.A.A.F. 2014)

(citations omitted). As noted earlier, Article 133,

UCMJ, contains just two elements: “[t]hat the accused

did or omitted to do certain acts; and [t]hat, under the

circumstances, these acts or omissions constituted

conduct unbecoming an officer and gentleman.” MCM

pt. IV, para. 59.b. The military judge adequately

instructed the panel on each specification of Article

133, UCMJ, when she read the panel the elements as

charged in each specification and provided the

following instruction both orally and in writing:

“Conduct unbecoming an officer and a

gentleman” means behavior in an official

capacity which, in dishonoring or

disgracing

the

individual

commissioned officer, seriously detracts

from his character as a gentleman, or

behavior in an unofficial or private

capacity which, in dishonoring or

disgracing the individual personally,

seriously detracts from his standing as a

commissioned officer. “Unbecoming

conduct” means misbehavior more

serious than slight, and of a material and

23a

pronounced character. It means conduct

morally unfitting and unworthy rather

than merely inappropriate or unsuitable

misbehavior which is more than opposed

to good taste or propriety. 9

Appellant contends these instructions were

inadequate because they make no mention of a mens

rea requirement. Presumably, the military judge

omitted anything specific about mens rea from her

instructions because Article 133, UCMJ, contains no

explicit mens rea requirement.

This case is strikingly similar to Caldwell, in

which we held that maltreatment under Article 93,

UCMJ, 10 U.S.C. § 893, was a military-specific

offense, and so the government need only “prove

general intent in order to obtain a conviction.” 75 M.J.

at 278. Like Article 133, UCMJ, Article 93, UCMJ,

does not explicitly specify a mens rea. MCM pt. IV,

para. 17.a. As we explained in Caldwell, although it is

true that “wrongdoing must be conscious to be

criminal,” 75 M.J. at 280 (internal quotation marks

omitted) (citation omitted), Congress is not required

to include an explicit mens rea in every article of the

UCMJ. Haverty, 76 M.J. at 203 (“[S]ilence in a

criminal statute regarding a mens rea requirement

does not necessarily prevent such a requirement from

being inferred.” (citation omitted)). When a statute is

silent as to mens rea, we “only read into the statute

The military judge’s definition mirrors the MCM’s

definition of conduct unbecoming. MCM pt. IV, para. 59.c.(2).

24a

that mens rea which is necessary to separate wrongful

conduct from innocent conduct.” Caldwell, 75 M.J. at

281 (internal quotation marks omitted) (citation

omitted). A statute’s silence can be indicative of a

general intent scienter. See United States v.

McDonald, 78 M.J. 376, 380 (C.A.A.F. 2019).

“[G]eneral intent merely requires [t]he intent to

perform [the actus reus] even though the actor does not

desire the consequences that result.” Haverty, 76 M.J.

at 207 (alterations in original) (internal quotation

marks omitted) (citation omitted). In the instant case,

a general intent mens rea would require only that

Appellant intended to commit the conduct alleged in

each specification—i.e., making inappropriate

comments and massaging his subordinate’s back. It

was up to the panel to determine whether Appellant’s

acts constituted conduct unbecoming. See United

States v. Miller, 37 M.J. 133, 138 (C.M.A. 1993)

(disagreeing with the appellant that the evidence was

insufficient to prove the conduct unbecoming element

and instead “hold[ing] that ‘a reasonable military

officer would have no doubt that the activities charged

in this case constituted conduct unbecoming an

officer.’ ” (quoting United States v. Frazier, 34 M.J.

194, 198 (C.M.A. 1992))).

Because “there is no scenario where [an officer]

who engages in the type of conduct” Appellant

engaged in “can be said to have engaged in innocent

conduct,” we infer a general intent scienter from

Congress’s silence. Caldwell, 75 M.J. at 281. “We base

our conclusion on the unique and long-recognized

importance” of an officer’s behavior “in the United

25a

States armed forces, and the deeply corrosive effect

that [indecorous behavior] can have on the military’s

paramount mission to defend our Nation.” Id.

Conduct unbecoming is a “military offense that

was specially created by Congress and prohibited

under its own separate article … reflecting” a high

level of congressional concern. Haverty, 76 M.J. at 205

n.10 (quoting Caldwell, 75 M.J. at 281, 285). “The

gravamen of [Article 133, UCMJ] is that the officer’s

conduct disgraces him personally or brings dishonor

to the military profession such as to affect his fitness

to command … so as to successfully complete the

military mission.” United States v. Schweitzer, 68 M.J.

133, 137 (C.A.A.F. 2009) (internal quotation marks

omitted) (citation omitted). Article 133, UCMJ, was

drafted in response to the fact that “it is the primary

business of armies and navies to fight or be ready to

fight wars should the occasion arise.” United States ex

rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). By

criminalizing conduct unbecoming, Article 133,

UCMJ, is intended to help ensure a “disciplined and

obedient fighting force.” Parker v. Levy, 417 U.S. 733,

763 (1974) (Blackmun, J., with whom Burger, C.J.,

joined, concurring). These traits are so essential to

war fighting capabilities, that this article’s

foundations were established long before the Republic

itself. See Levy, 417 U.S. at 745 (explaining that

Article 133, UCMJ, originated in “the British

antecedents of our military law,” followed our nation’s

founders across the Atlantic, and was adopted in a

similar form by the Continental Congress in 1775).

Because officer behavior is so important, “criminal

26a

liability for [conduct unbecoming] does not depend on

whether conduct actually effects a harm upon [a]

victim,” but rather on whether the officer possessed

the general intent to act indecorously, dishonestly, or

indecently. Caldwell, 75 M.J. at 282; MCM pt. IV,

para. 59.c.(2) (“There are certain moral attributes

common to the ideal officer and the perfect gentleman,

a lack of which is indicated by acts of dishonesty,

unfair dealing, indecency, indecorum, lawlessness,

injustice, or cruelty.”). As Justice Blackmun wrote in

Parker v. Levy—soldiers are expected to know the

general difference between right and wrong. 417 U.S.

at 762–63 (Blackmun, J., with whom Burger, C.J.,

joined, concurring) (explaining that soldiers

understand “concepts of ‘right’ and ‘wrong’ ” and that

“[f]undamental concepts of right and wrong are the

same now” as they’ve always been); see also United

States v. Meakin, 78 M.J. 396, 404 (C.A.A.F. 2019)

(detailing the history and purpose of Article 133,

UCMJ, and noting that “it has historically been the

case that officers are held to a higher standard of

behavior”).

Conscious conduct that is unbecoming an

officer:

is in no sense lawful. This behavior

undermines the integrity of the

military’s command structure, and as we

have repeatedly recognized in the

context of dangerous speech in the armed

forces, [t]he hazardous aspect of license

in this area is that the damage done may

27a

not be recognized until the battle has

begun. We therefore conclude that

general intent sufficiently separates

lawful and unlawful behavior in this

context, and there is no basis to intuit a

mens rea beyond that which we have

traditionally required for Article [133],

UCMJ.

Caldwell, 75 M.J. at 282 (internal quotation marks

omitted) (citation omitted).

The military judge’s instructions adequately

explained the actus reus of Appellant’s crimes—

actions that could not, under the circumstances, have

been innocent—and informed the members that they

were to consider Appellant’s conduct “under the

circumstances.”

Under

our

precedent,

this

instructional language “can reasonably be understood

as requiring the panel members to determine whether

Appellant” knew that he was engaging in certain

conduct. Id. at 283. The military judge was under no

requirement to offer any further instruction specific to

general intent. As such, her instructions were not

erroneous, let alone plainly erroneous.

Judgment

The decision of the United States Air Force

Court of Criminal Appeals is affirmed.

28a

APPENDIX B

Not Reported in M.J., 2018 WL 3629893

Only the Westlaw citation is currently available.

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

_________________

No. ACM 38836 (reh)

_________________

UNITED STATES

Appellee

Paul D. VOORHEES

Major (O-4), U.S. Air Force, Appellant

________________

Appeal from the United States Air Force Trial

Judiciary

Decided 20 July 2018

_________________

Military Judge: Mark Rosenow.

Approved sentence: Dismissal. Sentence adjudged 5

April 2017 by GCM convened at Davis-Monthan Air

Force Base, Arizona.

29a

For Appellant: Major Patrick A Clary, USAF; Terri R

Zimmerman, Esquire; Jack B. Zimmerman, Esquire.

For Appellee: Lieutenant Colonel Joseph J. Kubler,

USAF; Major Tyler B. Musselman, USAF; Mary Ellen

Payne, Esquire.

Before HARDING, SPERANZA, and HUYGEN,

Appellate Military Judges.

Senior Judge HARDING delivered the opinion of the

court, in which Judges SPERANZA and HUYGEN

joined.

________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 18.4

________________

HARDING, Senior Judge:

In United States v. Voorhees, No. ACM 38836,

2016 CCA LEXIS 752 (A.F. Ct. Crim. App. 23 Nov.

2016) (unpub. op.), this court set aside a finding of

guilty for a charge and specification in violation of

Article 120, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 920, and dismissed the charge and

specification with prejudice. We also set aside the

30a

sentence. 1 We affirmed the remaining findings

comprised of five specifications of conduct unbecoming

an officer and a gentleman, in violation of Article 133,

UCMJ, 10 U.S.C. § 933, and authorized a sentence

rehearing on the affirmed findings. At the sentence

rehearing, the military judge sentenced Appellant to

a dismissal and a reprimand. The convening authority

approved only the dismissal.

Appellant raises four issues for our review: (1)

whether the military judge failed to grant meaningful

relief for violation of Article 13, UCMJ, 10 U.S.C. §

813; (2) whether Appellant is entitled to sentence

relief because the rights and privileges lost as a result

of his dismissed conviction for sexual assault have not

been restored; (3) whether Appellant’s waiver of

members for resentencing was involuntary because he

did not have information about a comment made by

the military judge three years prior to Appellant’s

forum selection; and (4) whether the sentence is

inappropriately severe. We find no prejudicial error

and affirm.

I. BACKGROUND

Appellant’s convictions for conduct unbecoming

an officer and a gentleman are rooted in the sexual

comments and actions he directed toward three

subordinate female Airmen with whom he deployed or

1 At the initial trial, officer members adjudged and the convening

authority approved a sentence to dismissal, forfeiture of all pay

and allowances, and confinement for three years.

31a

went on temporary duty assignments (TDY) on

different occasions. Appellant performed duty as an

EC-130 pilot, aircraft commander, and co-pilot during

several deployments to Afghanistan. While TDY,

deployed, and transiting to and from deployment,

Appellant used electronic communications to make a

variety of comments with sexual undertones to Senior

Airman (SrA) HB, Technical Sergeant (TSgt) BR, and

Captain (Capt) MQ. The comments included telling

SrA HB he wanted to take her back to his hotel room,

asking all three individuals if they cheated on their

husband or “significant other,” and asking two of them

about the under-garments they were wearing.

All five specifications state that Appellant

engaged in conduct of a sexual nature with military

members junior in rank to him and that the conduct

“un-der the circumstances, was unbecoming an officer

and a gentleman.” Specification 1 of Charge II states

Appellant asked SrA HB “inappropriate questions,” to

wit: “Have you ever cheated on your husband?”; “Have

you ever sent him pictures?”; and “Can I have pictures

of you?” or words to that effect. Specification 2 of

Charge II states Appellant massaged SrA HB’s back.

Specification 1 of the Additional Charge states

Appellant made an “inappropriate statement” to SrA

HB, to wit: “I would like to take you back to my room”

or words to that effect. Specification 3 of the

Additional

Charge

states

Appellant

sent

“unprofessional” texts to Capt MQ, to wit: “What I

want to say could end my career and marriage”; “Your

[sic] a very beautiful woman and I would love to be

close to you”; “What’s your definition of cheating?”;

32a

and “So if I asked what color panties you were

wearing?” or words to that effect. Specification 4 of the

Additional

Charge

states

Appellant

sent

“unprofessional”

texts

another

enlisted

subordinate, TSgt BR, to wit: “This is about to become

a game to see what else I can say that will slip by you”;

“Mind if I ask u [sic] a couple personal questions?”;

“What I want to say could end my career so I just want

to make sure you can keep what I say between us

because you seem really cool?”; “Oh really, what’s

under there?”; and “I’ve had a crush on you,” or words

to that effect.

II. DISCUSSION

A. Illegal Punishment Prior to the Sentence

Rehearing

On 29 December 2016, a little over a month

after the issuance of our original opinion, The Judge

Advocate General remanded Appellant’s case to the

convening authority for action consistent with our

decision. As of that date, Appellant remained confined

and had served nearly two years of the original

sentence. A continued confinement hearing was held

on 18 January 2017 and Appellant was released. 2

Appellant asserts three violations of Article 13,

UCMJ, occurred between 29 December 2016 and the

date of the sentence re-hearing: (1) that he remained

The continued confinement review officer determined that

continued confinement was not necessary and Appellant was

released. The Government did not oppose Appellant’s release.

33a

illegally confined after 29 December 2016 until his

release on 18 January 2017; (2) that his pay and

allowances were not fully restored after his release (18

January 2017 to 5 April 2017); and (3) that his duty

status improperly remained “prisoner” even after his

release. Appellant claims on appeal that the military

judge failed to grant meaningful relief for these

asserted violations of Article 13, UCMJ, and that we

should now do so by setting aside the dismissal. We

disagree.

Prior to the sentence rehearing, Appellant filed

a motion for confinement credit under Article 13,

UCMJ. Appellant requested five-for-one credit for

each day he was confined from 29 December 2016

until his release, and two-for-one credit for every day

after his release up to the date his new sentence was

announced. The military judge found no evidence of

“any intent to punish [Appellant] by keeping him

confined, without full pay, or designated in a

particular status as [the] case moved toward a

sentence rehearing.” His finding of non-punitive

intent was not clearly erroneous. Moreover, having

examined the record, we agree with the military judge

there was no punitive intent. The military judge

denied Appellant’s motion on the grounds raised by

Appellant, but provided modest relief on a separate

basis. The military judge concluded that the

Government had exceeded the deadlines in Rules for

Courts-Martial (R.C.M.) 305(h) and (i) and granted

Appellant 19 days of confinement credit, one for each

day after the 48-hour probable cause determination

was missed. As there was no adjudged confinement to

34a

apply this credit to, the military judge, consistent with

United States v. Zarbatany, 70 M.J. 169, 177 (C.A.A.F.

2011), then considered whether the awarded credit

should be applied against the adjudged sentence to a

dismissal and reprimand to ensure meaningful relief.

Taking into consideration the nature of the violation,

the harm suffered by Appellant, whether the relief

sought was disproportionate to the harm suffered by

Appellant, and in light of the offenses of which

Appellant was convicted, the military judge concluded

that “such relief would be disproportionate within the

context of this case.” 3

At the outset, we note that a lack of punitive

intent coupled with legitimate government objectives

inevitably lead us to deny Appellant’s requested relief

whether we analyze the claims of unlawful

punishment as potential violations of Article 13,

UCMJ, as framed by Appellant, or more generally as

a basis for sentence appropriateness relief under

Article 66(c), UCMJ, 10 U.S.C. § 866(c), for unlawful

post-trial punishment. As noted, we agree with the

military judge that there was no punitive intent and,

having conducted our own review, we find that the

Government reasonably pursued legitimate interests

even if its pursuit was at a pace slower than Appellant

would have desired.

3 The military judge further ruled that even if he had found an

Article 13, UCMJ, violation on the grounds argued by Appellant

and provided the requested relief of 259 days of confinement

credit, he still would have found a set aside of the dismissal to be

disproportionate relief in this case.

35a

Having considered what Appellant has alleged

as three distinct Article 13, UCMJ, violations, we

conclude we have jurisdiction over one of his claims.

We have jurisdiction to determine whether his posttrial confinement from 29 De-cember 2016 until his

release on 18 January 2017 resulted in more severe

punishment than what Appellant should have

experienced. As to Appellant’s claims that his pay and

allowances were not fully restored after his release

and that the update to his duty status was delayed,

we find no punitive intent and conclude that we do not

have jurisdiction over these collateral matters absent

such intent. United States v. Buford, 77 M.J. 562 (A.F.

Ct. Crim App. 2017). Assuming arguendo that we

have jurisdiction, we decline to exercise our authority

to grant relief for administrative issues that are

unrelated to the legality or appropriateness of the

court-martial sentence in this case.

As to Appellant’s claim he is due relief for the

time spent in confinement from 29 December 2016

until his release on 18 January 2017, the Government

contends Appellant is not entitled to his requested

relief for three distinct rea-sons. First, citing to United

States v. Kreutzer, 70 M.J. 444 (C.A.A.F. 2012), the

Government argues that the protections of Article 13,

UCMJ, and R.C.M. 305 did not apply to Appellant as

he was not being “held for trial.” Second, even if those

protections did apply, Appellant failed to meet his

burden of demonstrating his right to relief under

Article 13, UCMJ, or failed to show that the military

judge’s determination of lack of punitive intent was

clearly erroneous. Finally, the Government agrees

36a

with the military judge that the requested relief

“would be disproportionate within the context of this

case.”

Assuming arguendo a violation occurred when

Appellant remained con-fined from 29 December 2016

until his release on 18 January 2017, taking into

consideration the harm suffered by Appellant,

whether the relief sought was disproportionate to the

harm suffered by Appellant, and the offenses of which

Appellant was convicted, we conclude, as the military

judge did, that setting aside the dismissal would be

disproportionate.

B. Illegal Punishment

Rehearing

After the Sentence

Appellant also asserts he is entitled to relief

from this court because he has yet to have been

restored the rights and privileges lost as a result of his

sexual assault conviction, which we dismissed.

Specifically, Appellant argues that, because he has

not received either monies owed him from the period

of time from his release until placement on appellate

leave or back-pay and allowances covering the period

of confinement he served, this court should intervene

and grant sentencing relief by setting aside the

sentence of dismissal. Appellant asserts he has been

improperly denied his pay and this court has

jurisdiction under Article 66(c), UCMJ, to provide a

remedy. We disagree.

37a

We note that Appellant does not challenge the

legality of the approved sentence. Instead, he takes

issue with the decisions of military officials and a

delay in the restoration of his pay and implores us to

grant sentence appropriateness relief. As this dispute

over Appellant’s claim to back pay concerns a matter

not directly connected to the approved sentence, we

must first determine whether we have jurisdiction to

grant relief. We hold that we do not.

In United States v. Dodge, we determined an

appellant’s claim for back-pay was not within our

statutory jurisdiction. 60 M.J. 873 (A.F. Ct. Crim.

App. 2005), aff’d, 61 M.J. 288 (C.A.A.F. 2005) (mem.).

Notwithstanding our holding in Dodge, Appellant,

relying primarily on United States v. Gay, 75 M.J. 264

(C.A.A.F. 2016), contends this court has jurisdiction to

remedy his lack of pay because Article 66(c), UCMJ,

grants broad discretion to determine which part of a

sentence “should be approved.” In Buford, however,

we noted that Gay did not recognize unlimited

authority to grant sentencing relief and held that Article 66(c), UCMJ, does not grant this court

jurisdiction over a pay dispute ab-sent a nexus to the

approved sentence. Buford, 77 M.J. at 562.

Appellant further characterizes his claim as an

allegation of illegal post-trial punishment. However,

other than captioning this assignment of error as

“Illegal Post-Trial Punishment” and asserting that

this court has the authority to consider claims of

illegal post-trial punishment, Appellant does not

specifically claim and, more importantly, does not put

38a

forward any evidence of punitive intent. In Dodge, we

also considered and rejected the appellant’s claim that

lack of pay amounted to illegal post-trial punishment.

We found the appellant fell “far short of

demonstrating that a failure to restore the appellant

to a pay status was based on an intent to subject him

to illegal punishment” and that a bare claim of illegal

punishment, absent some evidence of intent to subject

an appellant to illegal post-trial punishment, did not

establish jurisdiction over collateral pay issues.

Dodge, 60 M.J. at 878. Appellant has similarly failed

to present any evidence to establish that any member

of his command or other military official has delayed

or denied him back-pay to increase the severity of his

sentence and impose illegal post-trial punishment.

Following our prior decisions in Dodge and Buford and

in light of Appellant’s failure to demonstrate punitive

intent, we thus conclude we do not have jurisdiction

over Appellant’s back-pay disputes. 4

C. The Comment

Appellant asserts his waiver of members was

not knowing and voluntary because full disclosure of

the relevant facts that might reasonably call into

question the military judge’s impartiality did not

occur. Specifically, Appellant claims his waiver of

4 Even if we had jurisdiction to grant sentence appropriateness

relief for this claim, we would decline to exercise our authority to

do so. Article 75, UCMJ, 10 U.S.C. § 875, applies once a judgment

as to the legality of the proceedings is final under Article 71,

UCMJ, 10 U.S.C. § 871, and Appellant has other available

avenues of relief such as the Court of Federal Claims.

39a

members was involuntary because the military judge

failed to inform Appellant of a joking comment the

judge made over three years prior to Appellant’s

forum selection about a favorable outcome for an

appellant in another case. In that case a conviction

was set aside on appeal. The military judge was a

senior trial counsel at the time and made the comment

to the military appellate defense counsel who obtained

the favorable result for his client. According to that

appellate defense counsel, he was asked by the

military judge and then-senior trial counsel how it felt

“helping a rapist go free?” or words to that effect. The

appellate defense counsel understood the comment

was intended as a joke even though he personally was

not amused. He was also not personally offended or

professionally concerned and did not believe that he

needed to officially report the matter. Instead, he

informally shared the comment with his fellow

appellate defense counsel to include Appellant’s

military appellate defense counsel for his original

Article 66, UCMJ, review.

1. Voluntary and Knowing Waiver of

Members

Whether an accused’s forum selection is

knowing, voluntary, and intelligent is reviewed de

novo. See United States v. St. Blanc, 70 M.J. 424, 427

(C.A.A.F. 2012). If an accused requests trial by

military judge alone, “the military judge should

inquire personally of the accused to ensure that the

accused’s waiver of the right to trial by members is

knowing and understanding.” R.C.M. 903(c),

40a

Discussion. The military judge must determine: (1)

whether the accused has consulted with defense

counsel, (2) whether the accused has been informed of

the identity of the military judge, and (3) whether the

accused has been notified of the right to trial by

members. Id at 428 (quoting R.C.M. 903(c)(2)(A)).

These requirements “ensure[,] that an accused

understands the nature of the choice before waiving

the right to trial by members.” Id. at 428. In

considering the scope of the voluntary and knowing

requirement, the CAAF held succinctly: “R.C.M. 903

does not require that a military judge inquire into any

non-enumerated factors or collateral matters that

may have influenced the accused’s election.” Id. at

430. Appellant now urges that a “non-enumerated

factor” and “collateral matter”—a non-disclosed

potential basis for judicial dis-qualification—should

be considered in determining whether his waiver of

the right to trial by members was voluntary and

knowing. Following St. Blanc, we limit our waiver

analysis to the requirements of R.C.M. 903 and

address the recusal issue injected by Appellant

separately. We decline Appellant’s invitation to

conflate the two.

The military judge advised Appellant of his

right to trial by members multiple times and granted

Appellant’s request to defer his election of forum until

after motions practice was complete. At Appellant’s

request, the military judge also provided Appellant an

overnight recess to consult with his counsel on his

forum choice. During motions practice, Appellant had

the opportunity to observe the judge’s demeanor and

41a

receive the judge’s rulings. At an earlier session, the

military judge announced his qualifications and

disclosed on the record his prior assignment as a

senior trial counsel and its overlap with the

assignments of both the trial counsel and Appellant’s

trial defense counsel. The military judge also

described steps he had taken upon his detail to

Appellant’s case to ensure that he had not been

involved in any capacity in Appellant’s case when it

was originally tried or on appeal. Appellant not only

knew the identity of the military judge when

Appellant waived his right to members, but also was

aware of the judge’s prior assignment as a senior trial

counsel and had observed the judge in court.

Appellant, after consultation with his counsel,

chose to be sentenced by military judge alone,

confirmed that at the time he made this selection he

knew the military judge’s identity, verified that his

choice was a voluntary one, and that he knew he was

giving up his right to trial by members. The

requirements of R.C.M. 903 were satisfied and thus

we conclude Appellant’s waiver of the right to

members was knowing and voluntary.

2. Recusal of the Military Judge

Although Appellant did not directly raise the

issue of recusal of the military judge, Appellant did

reference judicial disqualification in the context of the

waiver of the right to trial by members. We find no

abuse of discretion by the military judge for failure to

42a

recuse himself or for failing to disclose the comment

prior to Appellant’s waiver of his right to trial by

members.

We review a military judge’s refusal to recuse

himself for an abuse of discretion. United States v.

Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (citation omitted). The standard for identifying the appearance of

bias of a military judge is an objective one: “[a]ny

conduct that would lead a reasonable man knowing all

the circumstances to the conclusion that the judge’s

impartiality might reason-ably be questioned.” Hasan

v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (alteration

in original) (quoting United States v. Kincheloe, 14

M.J. 40, 50 (C.M.A. 1982)). “There is a strong

presumption that a judge is impartial, and a party

seeking to demonstrate bias must overcome a high

hurdle, particularly when the alleged bias involves

actions taken in conjunction with judicial

proceedings.” United States v. Quintanilla, 56 M.J. 37,

44 (C.A.A.F. 2001). “[R]emarks, comments, or rulings

of a judge do not constitute bias or partiality, ‘unless

they display a deep-seated favoritism or antagonism

that would make fair judgment impossible.’” Id. at 44

(quoting Liteky v. United States, 510 U.S. 540, 555

(1994)). Further, the Supreme Court has made clear

that “expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the

bounds of what imperfect men and women, even

having being confirmed as federal judges, sometimes

display[]” do not establish bias or partiality. Liteky,

510 U.S. at 555–56. Of course, the comment at issue

43a

in this case was made when the military judge was a

prosecutor.

Given the totality of all the surrounding

circumstances attendant to the military judge’s

comment regarding another appellant’s case when the

military judge was a senior trial counsel years prior to

Appellant’s sentence rehearing, the comment is most

aptly characterized as a light-hearted attempt at

banter among professional peers and, given its benign

intent and remoteness in time, is hardly the stuff

recusals are made of. We find no actual or apparent

bias on the part of the military judge and no abuse of

discretion in the military judge’s decision to not recuse

himself or disclose the comment.

D. Sentence Severity

Finally, Appellant asserts that his sentence of

dismissal is inappropriately severe. We disagree.

We review sentence appropriateness de novo.

United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We

“may affirm only such findings of guilty and the

sentence or such part or amount of the sentence, as

[we] find[,] correct in law and fact and determine[ ], on

the basis of the entire record, should be approved.”

Article 66(c), UCMJ. “We assess sentence

appropriateness by considering the particular

appellant, the nature and seriousness of the

offense[s], the appellant’s record of service, and all

matters contained in the record of trial.” United States

44a

v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.

2009) (citations omitted). While we have great

discretion in determining whether a particular

sentence is appropriate, we are not authorized to

engage in exercises of clemency. United States v.

Nerad, 69 M.J. 138, 142–48 (C.A.A.F. 2010).

Appellant argues that dismissal is “an unduly

harsh punishment for the relatively minor conduct”

underlying his convictions when considered against

“the fact that [he] is a highly decorated combat

veteran with an established record of good character.”

We note, however, that Appellant’s misconduct was

not a limited one-time lapse of judgment, indiscretion,

or aberration. In each instance, Appellant was a

superior commissioned officer or senior aircrew

member to each of the three subordinates he subjected

to inappropriate comments and actions. In each

instance, he recognized that he was placing his

military career at risk and asked them not to report

him. In each instance, he negatively affected his

subordinates’ morale and attitude toward military

service, degraded his squadron’s operational

effectiveness, and disgraced himself as a military

officer. After giving individualized consideration to

Appellant, his record of service, the nature and

severity of the offenses, and all other matters

contained in the record of trial, we do not find

Appellant’s sentence to be inappropriately severe.

45a

III. CONCLUSION

The approved findings and sentence are correct in law

and fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. Articles

59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

Accordingly, the

AFFIRMED.

findings

FOR THE COURT

/s/ Carol K. Joyce

CAROL K. JOYCE

Clerk of the Court

and

sentence

are

46a

APPENDIX C

Not Reported in M.J., 2016 WL 11410622

Only the Westlaw citation is currently available.

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

________________________

UNITED STATES

Major PAUL D. VOORHEES

United States Air Force

ACM 38836

23 November 2016

Sentence adjudged 9 January 2015 by GCM

convened at Davis-Monthan Air Force Base,

Arizona. Military Judge: Natalie D. Richardson

Approved Sentence: Dismissal, confinement for 3

years, and total forfeiture of all pay and

allowances.

Appellate Counsel for Appellant: Terri R.

Zimmermann, Esquire (argued); Jack B.

47a

Zimmerman, Esquire; and Major Jeffrey A.

Davis

Appellate Counsel for the United States: Captain

Tyler B. Musselman (argued); Colonel Katherine

E. Oler; Gerald R. Bruce, Esquire.

Before

J. BROWN, HARDING, and C. BROWN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished

opinion and, as such, does not serve as

precedent under AFCCA Rule of Practice and

Procedure 18.4

C. BROWN, Judge:

Contrary to his pleas, a panel of officers

convicted Appellant of one specification of sexual

assault by causing bodily harm, in violation of Article

120, UCMJ, 10 U.S.C. § 920, and five specifications of

conduct unbecoming of an officer and gentleman, in

violation of Article 133, UCMJ, 10 U.S.C. § 933. The

adjudged and approved sentence was a dismissal,

forfeiture of all pay and allowances, and confinement

for three years.

48a

Appellant raises seven assignments of error: (1)

The military judge abused her discretion by

admitting, over Defense objection, evidence covered by

Mil. R. Evid. 412 to explain why the victim did not

express a lack of consent—specifically, that she had

been repeatedly sexually assaulted when she was ten

years old; (2) his conviction for a violation of Article

120, UCMJ, is legally and factually insufficient; (3)

plain error occurred when the trial counsel engaged in

prosecutorial misconduct by injecting his personal

opinion as to the credibility of the Government’s case,

and making inflammatory and derogatory attacks on

Appellant and trial defense counsel during findings

argument; (4) the military judge abused her discretion

when she sua sponte instructed the members that, in

assessing the sufficiency of the evidence, they could

not presume that evidence the Government failed to

present must be detrimental to the Government’s

case; (5) the specifications alleging violations of

Article 133, UCMJ, fail to state an offense because

they lack words of criminality; (6) his convictions for

five specifications in violation of Article 133, UCMJ,

are legally and factually insufficient; and (7) plain

error occurred when the Government introduced

irrelevant, speculative, and inflammatory evidence at

sentencing. 1

1 Appellant did not raise as error the presumptive unreasonable

delay for the 143-day period between the conclusion of trial and

the convening authority’s action. Under United States v. Moreno,

courts apply a presumption of unreasonable delay “where the

action of the convening authority is not taken within 120 days of

the completion of trial.” 63 M.J. 129, 142 (C.A.A.F. 2006).

Appellant did not assert prejudice and we independently find he

suffered no prejudice that would authorize Moreno relief.

49a

We conclude the evidence underlying

Appellant’s Article 120, UCMJ, conviction is factually

insufficient. We thus set aside this finding of guilt and

the sentence. This action moots the first and seventh

assignments of error. 2 Finding no further error, we

affirm the remaining convictions.

Furthermore, having considered the totality of the circumstances

and the entire record, we find the post-trial delay in this case is

not so egregious as to adversely affect the public’s perception of

fairness and integrity of the military justice system. See Toohey,

63 M.J. at 362. Similarly, we decline to grant relief under United

States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). Under

Article 66(c), UCMJ, 10 U.S.C. § 866(c), this court is empowered

“to grant relief for excessive post-trial delay without a showing of

‘actual prejudice’ within the meaning of Article 59(a), if it deems

relief appropriate under the circumstances.” Id. at 224 (quoting

United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App.

2000)). In United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.

2006), our superior court held that a service court may grant

relief even when the delay was not “most extraordinary.” The

court held, “The essential inquiry remains appropriateness in

light of all circumstances, and no single predicate criteria of ‘most

extraordinary’ should be erected to foreclose application of

Article 66(c), UCMJ, consideration or relief.” Id. This court set

out a non-exhaustive list of factors we consider when evaluating

the appropriateness of Tardif relief in United States v. Gay, 74

M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264

(C.A.A.F. 2016). On the whole, we find the presumptively

unreasonable delay does not merit sentencing relief in this case.

2 With regards to Appellant’s now-mooted first assignment of

error, we recognize that Mil. R. Evid. 412 is arguably ambiguous

regarding whether an accused can invoke the rule to prohibit a

willing victim from testifying about otherwise relevant sexual

abuse history. Nothing prevents the President from clarifying

Mil. R. Evid. 412 through amendment. See Major Shane R.

Reeves, Time to Fine-Tune Military Rule of Evidence 412, 196

Mil. L. Rev. 47 (Summer 2008).

50a

Background

Appellant’s convictions for conduct unbecoming

are rooted in the sexual comments and actions he

directed toward subordinate female Airmen with

whom he deployed or went on temporary duty

assignments (TDY) on different occasions. Appellant

is an EC-130 pilot who performed duty as an aircraft

commander and a co-pilot during several deployments

to Afghanistan. While TDY, deployed, and transiting

to and from deployment, Appellant used electronic

communications to make a variety of comments with

sexual undertones to a Senior Airman (SrA), a

Technical Sergeant (TSgt), and a First Lieutenant (1st

Lt). The comments included telling the Senior Airman

he wanted to take her back to his hotel room, asking

all three individuals if they cheated on their husband

or significant other, and asking two of them about the

undergarments they were wearing.

The alleged sexual assault took place as

Appellant and SrA HB were returning from a

deployment to Afghanistan. During the deployment,

Appellant served as the aircraft commander for an

eight-member aircrew where SrA HB was the only

female and the junior member of the crew. While in

transit to their home station, the crew stopped in

Baltimore, Maryland. Appellant arranged for a friend

to bring food and alcohol to their hotel, and the crew

ate, drank, and socialized together. SrA HB returned

to her hotel room and called her husband. Appellant

sent SrA HB a text message asking if he could come to

her room to talk. She refused, telling him “it was not

51a

a good idea.” Appellant persisted, calling SrA HB and

telling her that he would not get this opportunity

again. When she relented, Appellant knocked on her

door, and she let him into her room.

After entering her hotel room, Appellant

engaged in conversation with SrA HB, and eventually

moved to the bed where SrA HB was lying down and

began to rub her hand while he talked to her.

Appellant began massaging SrA HB’s back and

eventually took off her shirt and bra while continuing

the massage. The massage led to sexual intercourse.

After this first sexual encounter, Appellant and SrA

HB lay together in bed and conversed for a period of

20 to 30 minutes. Eventually, Appellant performed

oral sex on SrA HB and they engaged in vaginal

intercourse a second time. Appellant and SrA HB lay

on the bed for a few minutes until receiving a message

from another crew member inviting them to

breakfast. Appellant was in SrA HB’s room for

approximately two hours.

SrA HB reported the incident to her husband

approximately seven months later, initially telling

him she had cheated on him. SrA HB then reported

the incident to the Air Force Office of Special

Investigations (AFOSI). AFOSI asked SrA HB to

conduct a recorded phone call with Appellant. During

the call, SrA HB told Appellant she “didn’t want

[sexual intercourse] to happen” and Appellant asked

her why she “didn’t say something.” She also asked

him why he “thought it was OK,” and Appellant

replied, “[he] didn’t.”

52a

Additional facts necessary to resolve the

assignments of error are included below.

Legal and Factual Sufficiency of Article 120

Specification

We review the factual sufficiency of evidence de

novo. 3 Article 66(c), UCMJ, 10 U.S.C. § 866(c); United

States v. Washington, 57 M.J. 394, 399 (C.A.A.F.

2002); see United States v. Cole, 31 M.J. 270, 271

(C.M.A. 1990). Our assessment of factual sufficiency

is limited to the evidence presented at trial. United

States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). The

test for factual sufficiency is “whether, after weighing

the evidence in the record of trial and making

allowances for not having personally observed the

witnesses, [this court is] convinced of [Appellant]’s

guilt beyond a reasonable doubt.” Turner, 25 M.J. at

325; see United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.

2000).

The Specification of Charge I alleges Appellant

committed sexual assault by causing bodily harm in

violation of Article 120, UCMJ. To sustain a conviction

for sexual assault, the prosecution was required to

prove: (1) That Appellant committed a sexual act upon

SrA HB, to wit: penetrating the vulva of SrA HB with

his penis; and (2) That Appellant did so by causing

bodily harm to SrA HB to wit: penetrating her vulva

3 Because we find the evidence factually insufficient, we do not

address legal sufficiency.

53a

with his penis with an intent to gratify his own sexual

desire. See Department of the Army Pamphlet 27-9,

Military Judges’ Benchbook, 3-45-14c. (10 September

2014).

The Government had the burden to prove

beyond a reasonable doubt that SrA HB did not

consent to the sexual act and the military judge

provided the following definitions at trial regarding

consent:

Consent means a freely given agreement

to the conduct at issue by a competent

person. An expression of lack of consent

through words or conduct means there is

no consent. Lack of verbal or physical

resistance or submission resulting from

the use of force, threat of force, or placing

another person in fear does not

constitute consent. A current or previous

dating or social or sexual relationship by

itself or the manner of dress of the person

involved with the accused in the conduct

at issue shall not constitute consent.

Lack of consent may be inferred based on

the circumstances. All the surrounding

circumstances are to be considered in

determining whether a person gave

consent or whether a person did not

resist or ceased to resist only because of

another person’s actions.

54a

Similarly, the Government was required to

prove beyond a reasonable doubt that Appellant did

not have a reasonable mistake of fact defense as to

whether SrA HB consented to the sexual acts. As part

of the instruction concerning the defense of mistake of

fact, the military judge stated:

Mistake of fact as to consent means the

accused held, as a result of ignorance or

mistake, an incorrect belief that the

other person consented to the sexual

conduct as alleged. The ignorance or

mistake must have existed in the mind of

the accused and must have been

reasonable under all circumstances. To

be reasonable, the ignorance or mistake

must have been based on information, or

lack of it, that would indicate to a

reasonable person that the other person

consented. Additionally, ignorance or

mistake cannot be based on the negligent

failure to discover the true facts.

Negligence is the absence of due care.

Due care is what a reasonably careful

person would do under the same or

similar circumstances.

The defense of mistake of fact as to consent has

both subjective and objective elements. United States

v. Paige, 67 M.J. 442, 455 (C.A.A.F. 2009) (“[T]he

mistake of fact defense requires a subjective, as well

as objective, belief that [the victim] consented to the

sexual intercourse . . . .”); United States v. Jones, 49

55a

M.J. 85 (C.A.A.F. 1998) (“[A] mistake-of-fact defense

to a charge of rape requires that a mistake as to

consent be both honest and reasonable.”) (quoting

United States v. Willis, 41 M.J. 435, 438 (C.A.A.F.

1995)); Rule for Courts-Martial 916(j)(1) (“[T]he

ignorance or mistake must have existed in the mind of

the accused and must have been reasonable under all

the circumstances.”).

The bulk of the evidence supporting the sexual

assault conviction came from the testimony of SrA

HB. The Government also introduced into evidence a

recorded pretext phone call made by SrA HB to

Appellant and text messages between the parties. SrA

HB testified she did not consent to sexual intercourse

on either occasion. She stated Appellant initially

starting massaging her hand and then straddled her

on the bed, massaging her back underneath her shirt.

SrA HB stated she lay face down on the bed and did

not move as Appellant removed her shirt and bra. On

cross-examination, she asserted she may have moved

when Appellant took off her shirt and bra, but it was

not to assist Appellant in any way. Prior to the initial

sexual intercourse, SrA HB told Appellant, “[They]

couldn’t do this,” because they “were both married.”

When Appellant was removing her shorts, SrA HB

pushed her hips forward towards the bed but did not

say anything to him. During the initial sexual

encounter, SrA HB testified she moaned both in

pleasure and in pain. Appellant ejaculated on her back

and there was a period of 20 to 30 minutes where they

lay in bed and conversed. They later engaged in

consensual kissing. Appellant kissed SrA HB’s

56a

breasts and then performed oral sex on SrA HB by

licking her vagina. Appellant and SrA HB had sexual

intercourse again with Appellant ejaculating on her

stomach.

During her direct examination, SrA HB related

she had been repeatedly raped by a foster parent-type

figure when she was 10 years old. She further testified

that she did not scream or leave the room before or

during the sexual encounters with Appellant because

she felt like she was back in her childhood situation

and she “knew what was going to happen and [she]

just wanted it to be over with.” She stated she did not

cry out or call 911 while Appellant was straddling her

and massaging her back because she “just wanted it

over with.” She explained she engaged in the

consensual kissing between the first and second

sexual intercourse because when she was abused

during her childhood if she “showed interest or didn’t

fight . . . it would just be quicker. It would just be over

with and that’s what [she] wanted to happen.”

In this case, factual sufficiency turns on

whether Appellant had a reasonable belief that SrA

HB consented to the sexual acts. SrA HB testified that

she talked with Appellant about her childhood and

shared personal issues with him over Facebook while

they were deployed. But she did not testify to what, if

anything, she told Appellant about her childhood

sexual abuse or her learned defense mechanisms of

feigning interest or not resisting. We find these brief

and fairly broad snippets of testimony concerning

Appellant’s knowledge of SrA HB’s childhood

57a

insufficient to overcome a reasonable mistake of fact

defense. SrA HB stated she did not say anything to

Appellant to indicate she did not want to have sex

with him and the only words in the record putting

Appellant on notice that she was not a willing

participant in the sexual acts were SrA HB saying

they “couldn’t do this” because they “were both

married,” while Appellant was massaging her back.

SrA HB did testify she moved her hips towards the

bed when Appellant initially tried to take off her

shorts, but that appears to be the only outward

physical behavior which might have put Appellant on

notice of her lack of consent to the sexual intercourse.

The testimony that SrA HB “showed interest” by

consensually kissing Appellant to get the encounter

“over with” more quickly coupled with SrA HB’s

testimony that her body betrayed her and she moaned

in pleasure during both instances of sexual

intercourse support Appellant’s assertion that he was

reasonable in believing SrA HB was a willing

participant to the sexual intercourse.

Having reviewed the entire record of trial and

making allowances for not personally observing the

witnesses, we are not convinced of Appellant’s guilt

beyond a reasonable doubt. We find that the

Government failed to prove that the defense of

mistake of fact as to consent did not exist. We thus set

aside and dismiss with prejudice the Specification of

Charge I.

58a

Failure of Article 133 Specifications to State an

Offense

Appellant asserts that the five specifications of

conduct unbecoming an officer and a gentleman of

which he was convicted fail to state an offense.

Whether a specification states an offense is a

question of law that we review de novo. United States

v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012).

Specifications that are first challenged after trial are

viewed with greater tolerance than those challenged

at trial. United States v. Watkins, 21 M.J. 208, 209

(C.M.A. 1986). “Where defects in a specification are

raised for the first time on appeal, dismissal of the

affected charges or specifications will depend on

whether there is plain error . . . .” United States v.

Humphries, 71 M.J. 209, 213 (C.A.A.F. 2012).

“Appellant has the burden of demonstrating that: (1)

there was error; (2) the error was plain or obvious; and

(3) the error materially prejudiced a substantial right

of the accused.” United States v. Girouard, 70 M.J. 5,

11 (C.A.A.F. 2011).

The military is a notice pleading

jurisdiction.

Charge(s)

and

specification(s) will be found sufficient if

they, ‘first, contain the elements of the

offense charged and fairly inform a

defendant of the charge against which he

must defend, and, second, enable him to

59a

plead an acquittal or conviction in bar of

future prosecutions for the same offense.’

United States v. Fosler, 70 M.J. 225, 229

(C.A.A.F. 2011) (quoting Hamling v. United

States, 418 U.S. 87, 117 (1974)) (citation

omitted).

All five specifications, as charged, allege

Appellant engaged in conduct of a sexual nature with

military members junior in rank to him and that the

conduct “under the circumstances, was unbecoming

an officer and a gentleman.” Specification 1 of Charge

II alleges that Appellant asked SrA HB “inappropriate

questions,” to wit: “Have you ever cheated on your

husband?”; “Have you ever sent him pictures?”; and

“Can I have pictures of you?” Specification 2 alleges

Appellant massaged SrA HB’s back. Specification 1 of

the Additional Charge alleges Appellant made an

“inappropriate statement” to SrA HB, to wit: “I would

like to take you back to my room,” or words to that

effect. Specification 3 of the Additional Charge alleges

Appellant sent “unprofessional” texts to Captain MQ,

to wit: “What I want to say could end my career and

marriage”; “Your (sic) a very beautiful woman and I

would love to be close to you”; “What’s your definition

of cheating?”; and “So if I asked what color panties you

were wearing?” or words to that effect. Specification 4

of the Additional Charge alleges “unprofessional”

texts from Appellant to another enlisted subordinate,

TSgt BR, to wit: “This is about to become a game to

see what else I can say that will slip by you”; “Mind if

I ask u (sic) a couple personal questions?”; “What I

60a

want to say could end my career so I just want to make

sure you can keep what I say between us because you

seem really cool?”; “Oh really, what’s under there?”;

and “I’ve had a crush on you,” or words to that effect.

The elements of conduct unbecoming an officer

and a gentleman are as follows: “(1) That the accused

did or omitted to do certain acts; and (2) That, under

the circumstances, these acts or omissions constituted

conduct unbecoming an officer and gentleman.”

Manual for Courts-Martial, United States (MCM), pt.

IV, ¶ 59(b). Regarding conduct captured under this

Article, the Manual notes:

Conduct violative of this article is action

or behavior in an official capacity which,

in dishonoring or disgracing the person

as an officer, seriously compromises the

officer’s character as a gentleman, or

action or behavior in an unofficial or

private capacity which, in dishonoring or

disgracing

the

officer personally,

seriously compromises the person’s

standing as an officer. There are certain

moral attributes common to the ideal

officer and the perfect gentleman, a lack

of which is indicated by acts of

dishonesty, unfair dealing, indecency,

indecorum, lawlessness, injustice, or

cruelty.

MCM, pt IV, ¶ 59.c.(2) (2012 ed.).

61a

Concerning the nature of the conduct for this

offense, our superior court has held:

An officer’s conduct need not violate

other provisions of the UCMJ or even be

otherwise criminal to violate Article 133,

UCMJ. The gravamen of the offense is

that the officer’s conduct disgraces him

personally or brings dishonor to the

military profession such as to affect his

fitness to command the obedience of his

subordinates so as to successfully

complete the military mission. Clearly,

then, the appropriate standard for

assessing criminality under Article 133

is whether the conduct or act charged is

dishonorable and compromising as

hereinbefore

spelled

out—this

notwithstanding whether or not the act

otherwise amounts to a crime.

United States v. Schweitzer, 68 M.J. 133, 137

(C.A.A.F. 2009) (quotation marks and citations

omitted).

As Appellant did not object at trial, we liberally

construe the specifications and only grant relief for

plain error. But Appellant cannot show error, let alone

plain error. All five specifications contain the

elements of the offense of conduct unbecoming an

officer and a gentleman. They serve to inform

62a

Appellant of the specific acts against which he must

defend. Finally, they are charged with sufficient

specificity to prevent future prosecutions for the same

offenses. This is all that is required. Fosler, 70 M.J. at

229.

Legal and Factual Sufficiency of Article 133

Specifications

Appellant asserts the evidence underlying his

convictions for violating Article 133 is legally and

factually insufficient because the language and

conduct alleged do meet the definition of conduct

unbecoming an officer and a gentleman. We disagree.

Appellant asserts his texts were simply “innocuous

chatter,” and argues that while the “flirtatious” and

“inappropriate” comments reflect poorly upon

Appellant as a husband, they had no serious effect on

the public’s perception of the Air Force or the military

in general. Appellant asks us to follow the rationale in

United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001),

to set aside the specifications. We are not persuaded

and instead rely on our superior court’s holding in

United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011).

In Lofton, our superior court found legally

sufficient a specification alleging an officer made

unsolicited sexual comments to a Chief Master

Sergeant. The court noted, “Appellant’s words cannot

be analyzed in a vacuum. Unlike the appellant in

Brown, Colonel Lofton was not dealing with fellow

officers . . . . [T]he Government established that

63a

Appellant . . . made these comments as a means to

further his attempt to establish a personal and

unprofessional relationship with CMSgt RM, an

enlisted woman.” Id. at 390.

Appellant focuses our attention to the

testimony of witnesses who stated they were a “good

crew” and they “bragged about being one of the best,”

further stating there was no evidence Appellant was

unable to accomplish the mission. While Appellant

asserts his conduct does not rise to the same level of

“frequency and intrusiveness” as the conduct in

Lofton, we are not persuaded.

Appellant’s misconduct negatively impacted his

subordinates’ perception of him and their desire to

serve under his command. SrA HB testified that

Appellant’s comments made her feel uneasy. 1st Lt

MQ asked to be removed from the pending deployment

where Appellant was to be her aircraft commander.

She further testified that the text messages impacted

her view of Appellant as a gentleman by making her

feel disgusted, and she lost all sense of respect for him.

TSgt BR testified that Appellant’s messages caused

her to not look forward to working for Appellant

during the deployment. TSgt BR further testified she

did not think of Appellant as a gentleman and that

Appellant’s actions, including his texts and “vulgar”

and “lewd” sexual comments he made while deployed

caused her to seek a staff job so she would not have to

deploy again.

64a

Despite Appellant’s assertion that his actions

were a mere failure of good judgment, we have no

doubt they disgraced him personally and as an officer

such that they compromised his fitness to command

and to successfully complete the military mission. The

charged conduct was of a sexual nature and occurred

with lower ranking military members. The alleged

conduct occurred while Appellant was deployed,

transiting to or returning from deployment, or TDY

with junior members of his unit. For three

specifications, Appellant was the senior officer and

aircraft commander or co-pilot of the enlisted

members with whom it is alleged he committed the

conduct unbecoming. For the specification involving

the junior officer, Appellant was soliciting her to cheat

on his wife with him. At the time, Appellant was

scheduled to deploy with her in the near future where

he would perform duty as the aircraft commander or

co-pilot of her crew. The remaining specification

alleges conduct where Appellant told a married

Airman from his unit whom he would later command

at a deployed location that he wanted to take her back

to his hotel room. We find that there is sufficient

evidence to convince a rational trier of fact beyond a

reasonable doubt that the Appellant is guilty of all five

specifications of conduct unbecoming an officer and a

gentlemen, and that the evidence is, therefore, legally

sufficient. Furthermore, after our independent review

of the record and making allowances for not

personally observing the witnesses, we are ourselves

convinced beyond a reasonable doubt.

65a

Improper Argument by Trial Counsel

Appellant next asserts trial counsel engaged in

prosecutorial misconduct during closing argument by

injecting his personal opinion as to the credibility of

the Government’s case and making inflammatory and

derogatory attacks on Appellant and trial defense

counsel.

Improper argument is a question of law that is

reviewed de novo. United States v. Pope, 69 M.J. 328,

334 (C.A.A.F. 2011). Because there was no objection

at trial, we review the propriety of trial counsel’s

argument for plain error. United States v. Halpin, 71

M.J. 477, 479 (C.A.A.F. 2013). To prevail under a plain

error analysis, Appellant must show “(1) there was an

error; (2) it was plain or obvious; and (3) the error

materially prejudiced a substantial right.” United

States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007)

(quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.

2000)).

Appellant cites 14 different instances where he

believes trial counsel made improper argument, none

of which he objected to at trial. Many of the alleged

improper arguments are directly related to the sexual

assault charge which we have found factually

insufficient; we decline to address these as they are

mooted by our setting aside of that charge. Rather

than address each point individually, we will examine

the arguments in terms of the prosecutorial

misconduct alleged.

66a

Appellant alleges trial counsel impermissibly

attacked him by referring to Appellant as a “perverted

individual,” a “pig,” a “narcissist,” a “chauvinist,” a

“joke of an officer,” and referring to his conduct as

“disgusting.” It is well established that while a

prosecutor “may strike hard blows, he is not at liberty

to strike foul ones. It is as much his duty to refrain

from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate

means to bring about a just one.” United States v.

Frey, 73 M.J. 246, 248 (C.A.A.F. 2014) (quoting Berger

v. United States, 295 U.S. 78, 88 (1935)). Trial counsel

is entitled “to argue the evidence of record, as well as

all reasonable inferences fairly derived from such

evidence.” United States v. Baer, 53 M.J. 235 (C.A.A.F.

2000). Despite our setting aside the sexual assault

conviction, the evidence remains that Appellant, at

minimum, as the senior officer of a deployed aircrew

had sexual intercourse with the most junior enlisted

member of his aircrew while re-deploying. Similarly,

the alleged conduct unbecoming took place between a

commissioned officer and either enlisted members or

a junior officer within his unit. Appellant’s conduct in

having sexual intercourse with SrA HB while redeploying and seeking to engage in personal

relationships with his subordinates and making

inappropriate comments with sexual undertones to

them was at the center of the evidence at trial. Thus,

while trial counsel’s use of the above adjectives to

67a

describe Appellant was perhaps ill-advised, 4 they do

not rise to the level of plain error.

Appellant further asserts trial counsel

inappropriately expressed his personal opinion

regarding the Government’s evidence by bolstering

witnesses. Appellant claims this occurred when trial

counsel called TSgt BR an outstanding Airman and

stated that various witnesses, including SrA HB

testified truthfully. As our superior court stated in

Baer, 53 M.J. at 238, “our inquiry should not be on

words in isolation, but on the argument as ‘viewed in

context.’” Id. We find trial counsel’s argument did not

personally vouch for the witnesses, but amounted to

fair comment on the evidence presented to include

commenting on the witnesses’ perception of

Appellant’s observed behavior and also arguing that

Government witnesses, including the sole witness to

the sexual assault, were credible.

Appellant alleges trial counsel made multiple

arguments impermissibly commenting on Appellant’s

right to not testify. A trial counsel “may not comment

directly, indirectly, or by innuendo, on the fact that an

accused did not testify in his defense.” United States

v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (quoting

United States v. Mobley, 31 M.J. 273, 279 (C.M.A.

1990)). However, “it is permissible for trial counsel to

comment on the Defense’s failure to refute

4 See United States v. Fletcher, 62 M.J. 175, 182 (C.A.A.F. 2005)

(“Disparaging comments are also improper when they are

directed to the defendant himself.”)

68a

Government evidence or to support its own claims.”

United States v. Paige, 67 M.J. 442, 448 (C.A.A.F. 26

2009). A violation occurs “only if either the defendant

alone has the information to contradict the

Government evidence referred to or the [members]

‘naturally and necessarily’ would interpret the

summation as a comment on the failure of the accused

to testify.” Id. (quoting Carter, 61 M.J. at 33) (quoting

United States v. Coven, 662 F.2d 162, 171 (2d Cir.

1981) (alteration in original).

In Carter, our superior court found that trial

counsel’s reference to the words “uncontroverted” and

“uncontradicted” 11 times during argument made

Appellant’s decision not to testify a “centerpiece of the

closing argument.” Carter, 61 M.J. at 34. The Court

also noted that even after the military judge

instructed the members that they could not draw any

adverse inference from the appellant’s failure to

testify, trial counsel continued that type of argument.

Id. The court found the comments “were not isolated

or a ‘slip of the tongue,’” and cited to United States v.

Moore, 917 F.2d 215, 225 (6th Cir. 1990) to propose

the isolated nature of comments by a prosecutor

should be taken into account. Carter, 61 M.J. at 34.

Here, trial counsel’s closing and rebuttal

argument contained three instances where testimony

was labeled “uncontradicted.” Two of the three

instances stem from testimony where multiple

individuals were present. The final comment occurred

when trial counsel stated it was “uncontradicted” that

Appellant had told SrA HB she should “be more

69a

enthusiastic” with her husband just prior to leaving

SrA HB’s hotel room. As SrA HB was the only person

who heard Appellant’s statement, this comment is

information that only Appellant could contradict. Our

superior court has found that the Government “is

permitted to make ‘a fair response’ to claims made by

the Defense, even when a Fifth Amendment right is at

stake.” United States v. Gilley, 56 M.J. 113, 120

(C.A.A.F. 2001) (quoting United States v. Robinson,

485 U.S. 25, 32 (1988)). Trial defense counsel

appeared to invite this reply through his opening

statement where he described Appellant’s version of

the sexual encounter, highlighting Appellant’s “eighthour statement” to AFOSI. Trial defense counsel also

did not challenge SrA HB on the veracity of this

statement despite having the opportunity to do so on

cross-examination. That said, even if this argument

was not an invited response or proper comment on SrA

HB’s credibility, we do not believe trial counsel was

impermissibly drawing the members’ attention to

Appellant’s right not to testify. We further find trial

counsel’s use of the term “uncontradicted” in this

instance did not prejudice Appellant, particularly as

we are analyzing this only as it relates to the

convictions for conduct unbecoming an officer and a

gentleman.

Military Judge’s Instruction during Closing

Argument

Appellant asserts the military judge abused her

discretion when she sua sponte instructed the panel

concerning evidence the Government did not present.

70a

During closing argument, trial defense counsel argued

that evidence the Government had not presented to

the members was unfavorable to the Government’s

case. Specifically, trial defense counsel argued:

[Y]ou can assume, knowing that these

are skilled prosecutors, if they had 16

crew members or 15 crew members that

could come in here and say this behavior

was completely over the top, then we

would have heard from, probably from 15

or 16 witnesses. They’ve picked the ones

they had and that really goes to show

that a majority of the people probably

don’t back up their side of the case[.]

(emphasis added).

Trial defense counsel also argued:

What about OSI agents? You—this is a

lengthy investigation. You—they didn’t

hear from a single professional

investigator; who interviewed the

witnesses, who dealt with the—that

investigated this case. We know OSI

investigates all felonies, and this is a

felony-level case. If they had evidence

that was helpful to the Government’s

case, you would have heard from an OSI

investigator. (emphasis added).

71a

Trial defense counsel also questioned why the

Government did not call SrA HB’s husband.

What did she really tell her husband?

That’s another story. That’s another

question you have. And it’s one of those—

and I said they cherry-picked the

evidence and they showed you about 30

percent of it. Why wouldn’t you—

wouldn’t it be a relevant witness to talk

to, the first person she ever told this

story to, for you to make your decision?

After trial defense counsel had finished his

argument, but before the trial counsel provided a

rebuttal argument, the military judge sua sponte

instructed the members as follows:

Before I allow Government to provide a

rebuttal argument, I need to remind you

of some of the instructions that I gave.

That—I don’t believe the argument you

heard was consistent with all of my

instructions. There’s a couple of things I

really want to foot stomp and point out to

you.

…

[I] remind you that only matters properly

before the court as a whole should be

considered. You may not assume or

72a

presume that because the Government

did not present some evidence that that

evidence must have been detrimental to

its case. You cannot presume or assume

that that evidence that was not

presented would even be legally

admissible in this trial. However, the

Government does have the burden of

proof. So, it is the Government’s burden,

and the Government’s alone, to present

you with evidence—legal and competent

evidence, that proves each element of

each offense beyond a reasonable doubt

before you can find the accused guilty of

any element—or of any offense.

After the Government’s rebuttal argument, the

trial defense counsel objected to this instruction,

arguing that the absence of evidence could raise a

reasonable doubt as to guilt. The military judge stated

that trial defense counsel “crossed the line” because

he wanted the members to “presume that the

Government didn’t offer it because it would be

detrimental to their case.” The military judge noted

that one portion of defense counsel’s argument

referenced inadmissible hearsay.

We review a military judge’s decision to provide

an instruction for an abuse of discretion. United States

v. Barnett, 71 M.J. 248, 249 (C.A.A.F. 2012). We

review the propriety of the instructions given by a

military judge de novo. United States v. Quintanilla,

56 M.J. 37, 83 (C.A.A.F. 2001).

73a

A negative inference drawn from missing

evidence has its origin in the nineteenth century case

of United States v. Graves, 150 U.S. 118, 120 (1893).

There, the United States Supreme Court reversed a

conviction where the prosecution argued for the jury

to draw a negative inference against the accused from

the lack of evidence from the accused’s wife. Id.

Despite reversing the conviction, the Court stated,

“The rule even in criminal cases is that if a party has

it peculiarly within his power to produce witnesses

whose testimony would elucidate the transaction, the

fact that he does not do it creates the presumption

that the testimony, if produced, would be

unfavorable.” Id. at 121.

This missing-witness rule has been applied in

courts-martial. In United States v. Swoape, 21 M.J.

414, 415 (C.M.A. 1986), the court held that the

military judge erred in failing to instruct the members

that “no inference could be drawn from the absence of

. . . a witness in this case.” Like Graves, Swoape

involved a prosecutor’s comments about the lack of

evidence presented by the accused. In United States v.

Taylor, 47 M.J. 322, 324 (C.A.A.F. 1997), the court

stated, “This Court generally has not permitted a trial

counsel to comment on the failure of the defense to

produce evidence.” The court further stated, “This

missing witness inference usually may not be drawn

if the witness is ‘equally within the power of either

party to produce.’” Id. (quoting United States v. Pitts,

353 F.2d 870, 871 (D.C. Cir. 1990).

74a

Although originally a shield for an accused from

a prosecutor’s comments, the missing-evidence

instruction may also be used as a sword against the

Government. 5 In United States v. Roberts, 10 M.J.

308, 313 (C.M.A. 1981), our superior court stated

“Under normal circumstances, a possible inference

might be drawn from [a witness’s] unexplained

absence that [their] testimony would not support the

Government or that it would be favorable to the

accused.” The concurring opinion rejected this

5 The federal circuit courts of appeal provide additional examples

of when this might arise as well as additional instruction on

when such an instruction might be appropriate. See, e.g. United

States, v. Ramirez, 714 F.3d 1134, 1138 (9th Cir. 2013) (noting

that a missing witness instruction would be appropriate when:

“(1) ‘[t]he party seeking the instruction must show that the

witness is peculiarly within the power of the other party’ and (2)

‘under the circumstances, an inference of unfavorable testimony

[against the non-moving party] from an absent witness is a

natural and reasonable one’”); United States v. Myerson, 18 F.3d

153, 159 (2d Cir. 1994) (highlighting a distinction between a

defense counsel arguing missing evidence and the trial judge

providing a negative inference instruction and stating that

“[u]nder some circumstances, it may be proper for a trial court to

refuse to give a missing witness instruction to allow the

defendant to argue the inference in summation”); United States

v. Wright, 722 F.3d 1064 (7th Cir. 2013) (affirming a trial judge’s

declination to provide a missing witness instruction against the

government when a confidential informant did not testify at

trial); United States v. Walcott, 431 Fed. Appx. 860, 861 (11th

Cir. 2011) (affirming a trial judge’s refusal to provide a missing

witness instruction and decision to limit the defense counsel’s

closing argument on the inferences that could be drawn from the

absent testimony of a witness who had invoked his Fifth

Amendment rights); and United States v. Jimenez-Torres, 435

F.3d 3, 12 (1st Cir. 2006) (drawing a distinction between a

defense counsel’s closing argument that highlights the missing

proof to argue there was insufficient evidence and argument for

the jury to draw a negative inference against the government).

75a

position and stated, “No basis exists for an adverse

inference instruction from failure to call a witness

unless the party logically expected to call the witness

‘has it peculiarly within his power to produce’ the

witness.” Id. (Cook, Judge, concurring) (quoting

Graves, 150 U.S. at 121.) “Equal availability

‘precludes the inference.’” Id. (quoting United States v.

White, 38 C.M.R. 9, 12 (C.M.A. 1967).

We note there is a difference between trial

defense counsel arguing missing evidence as it applies

to the Government meeting its burden of proof and

arguing the members should make a negative

inference from evidence not properly before them as

the trier of fact. Had the Defense requested the

military judge provide a negative inference

instruction prior to argument, she would have been

well within her discretion to decline to do so. None of

the missing evidence highlighted by the trial defense

counsel in closing argument was peculiarly within the

Government’s control—a necessary prerequisite for

such an instruction. However, the question remains

whether her sua sponte instruction limiting the trial

defense counsel’s argument on this point was an abuse

of discretion. We hold that it was not.

A military judge has a wide range of options

when controlling the presentation of evidence in her

courtroom. See Mil. R. Evid. 611(a) (requiring the

military judge to exercise reasonable control over the

mode and order of interrogating witnesses). This

includes limiting the closing arguments of counsel.

See Rule for Courts-Martial (R.C.M.) 919, Discussion

76a

(“The military judge may exercise reasonable control

over argument.”) (citing R.C.M. 801(a)(3)). Perhaps

better practice would have been to address the issue

outside of the presence of the members; however, trial

defense counsel argued the matter directly to the

members. Thus, it was within the military judge’s

discretion to sua sponte instruct the members

concerning what she believed to be improper

argument.

Moreover, we find that the substance of the

instruction was a correct statement of the law. Here,

some of the referenced evidence was likely

inadmissible under the military rules of evidence. The

military judge did not abuse her discretion in sua

sponte instructing the members as to what evidence

they could properly consider. While the instruction

precluded the members from presuming the missing

evidence must have been detrimental to the

Government’s case (a mandatory inference), it did not

preclude the members from reaching that conclusion

if they determined that the evidence otherwise

supported it (a permissive inference). In addition, the

instruction did not shift the burden of proof or prevent

the members for considering the missing evidence as

it applied to the Government meeting its burden of

proof. After providing the limits of what inferences the

members could draw from the evidence that had not

been presented, the military judge stated that it was

“the Government’s burden, and the Government’s

alone, to present [the members] with evidence—legal

and competent evidence, that proves each element of

each offense beyond a reasonable doubt.” We find the

77a

military judge did not abuse her discretion in

providing this limiting instruction to the members.

Sentence Reassessment

Having dismissed the sexual assault

specification, we now must decide whether we can

accurately reassess Appellant’s sentence based solely

upon the findings on the affirmed conduct unbecoming

specifications, or instead if we must return this case

for a rehearing.

This court has “broad discretion” when

reassessing sentences. United States v. Winckelmann,

73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has

repeatedly held that if we “can determine to [our]

satisfaction that, absent any error, the sentence

adjudged would have been of at least a certain

severity, then a sentence of that severity or less will

be free of the prejudicial effects of error.” United

States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In

determining whether to reassess a sentence or order a

rehearing, we consider the totality of the

circumstances with the following as illustrative

factors: (1) dramatic changes in the penalty landscape

and exposure, (2) the forum, (3) whether the

remaining offenses capture the gravamen of the

criminal conduct, (4) whether significant or

aggravating circumstances remain admissible and

relevant, and (5) whether the remaining offenses are

the type with which we as appellate judges have the

experience and familiarity to reliably determine what

78a

sentence would have been imposed

Winckelmann, 73 M.J. at 15–16.

trial.

Examining the entire case and applying the

considerations set out in Winckelmann, we are unable

to determine to our satisfaction that Appellant’s

sentence would have been at least a certain severity

without the error. While this court has extensive

experience in dealing with conduct unbecoming cases

and, as such, are cognizant of the types of punishment

and levels of sentence imposed for offenses similar to

those alleged against Appellant, the remaining

circumstances surrounding this case point towards a

rehearing.

The dismissal of the Article 120 specification

reduces the penalty landscape and exposure by 30

years, leaving a maximum possible confinement of

five years. This factor alone would not automatically

require a sentence rehearing. See Winckelmann, 73

M.J. at 13, 16 (holding that it was not an abuse of

discretion to reassess the sentence where the

maximum amount of confinement decreased from 115

years to 51 years). However, the reduction in

confinement is far from insignificant.

More critical than the reduction in punishment

exposure, however, is the fact Appellant no longer

stands convicted of sexual assault. Trial counsel’s

sentencing argument highlighted the impact of the

sexual assault on SrA HB who testified about the

personal effect of the offense on her and her family.

79a

Trial counsel discussed the conduct unbecoming

convictions and their impact on the victims involved;

however, the focal point of the argument to support

asking members for a significant sentence was how

the sexual assault effected SrA HB.

As both the penalty landscape and the available

aggravation evidence is significantly reduced after the

dismissal of the sexual assault charg

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