United States v. Voorhees

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
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 Nov. 23, 2016) (unpublished).
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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 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 eight-member aircrew where [Senior
Airman] HB was the only female and the junior member of

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.

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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

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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

2 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.

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“[I]t is … improper for a trial counsel to attempt to win
favor with the members by maligning defense 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.
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

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 “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.

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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.
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

4
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).

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

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 “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 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 to 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 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

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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). 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

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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:
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). 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

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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.
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 to 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
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.”
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.

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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
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
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

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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, 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.

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.”

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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 (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 as a
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

8 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).

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Opinion of the Court

officer. “Unbecoming conduct” means misbehavior
more serious than slight, and of a material and
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 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

9
The military judge’s definition mirrors the MCM’s definition
of conduct unbecoming. MCM pt. IV, para. 59.c.(2).

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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 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

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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 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 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

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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.

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