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Supreme Court of the United States ______ No. _________________________ In The Supreme Court of the United States ____________________ PAUL D. VOORHEES, MAJOR, USAF, Applicant-Petitioner, versus UNITED STATES OF AMERICA, Respondent. ____________________________ Application for Extension of Time to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Armed Forces DONALD G. REHKOPF, JR. Counsel of Record Law Office of Donald G. Rehkopf, Jr. 31 East Main Street, 2nd Floor Rochester, NY 14614 (585) 434-0232 [email protected] BENJAMIN H. DEYOUNG, MAJOR, USAF Appellate Defense Division Air Force Legal Operations Agency 1500 West Perimeter Road, Suite 1000 Joint Base Andrews, MD 20762 (240) 612-4770 [email protected] October 18, 2019 In The Supreme Court of the United States ____________________ PAUL D. VOORHEES, MAJOR, USAF, Applicant-Petitioner, versus UNITED STATES OF AMERICA, Respondent. _____________________ Application for Extension of Time to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Armed Forces To the Honorable John G. Roberts, Jr., Chief Justice of the United States: Pursuant to Supreme Court Rules 13.5, 22, and 30.2, the Applicant-Petitioner, Major Paul D. Voorhees, USAF, by and through his counsel, respectfully requests a 46 day extension of time, to and including Monday, December 23, 2019, in order to file a Petition for a Writ of Certiorari. In support of this application, we state the following: 1. Major Voorhees was convicted after trial by a general court-martial of a number of offenses under the Uniform Code of Military Justice [UCMJ], and originally sentenced on 9 January 2015, to inter alia, a Dismissal and three years confinement. On appeal to the Air Force Court of Criminal Appeals [AF CCA], that Court reversed his conviction for sexual assault under 10 U.S.C. § 920, Article 120, UCMJ, on the grounds of factual insufficiency, ordered that Charge and its Specification dismissed with prejudice, and remanded the case back to a court-martial for re-sentencing on the remaining Charge and Specifications. 1 2. Upon re-sentencing, Applicant-Petitioner’s approved sentence was simply a Dismissal. He served almost two years of confinement before being released from confinement prior to his re-sentencing proceedings. Major Voorhees then again appealed to the AF CCA. On 20 July 2018, that Court affirmed the guilty findings and new sentence. He then petitioned the U.S. Court of Appeals for the Armed Forces [CAAF] for review. As relevant here, CAAF granted review on this issue: [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]. 79 M.J. 5, *9 (CAAF 2019). CAAF’s decision denying relief was rendered on 27 June 2019. 3. This Court decided Rehaif v. United States, 139 S.Ct. 2191 (2019), on 21 June 2019–involving the proper interpretation of a mens rea or scienter element. Major Voorhees timely sought reconsideration at CAAF which denied reconsideration on 8 August 2019, 2019 WL 4274171, without opinion. 4. The 90 day time-period for Major Voorhees to file a Petition for a Writ of Certiorari thus ends on November 7, 2019. On behalf of Applicant-Petitioner, a 46 day extension until December 23, 2019, is respectfully requested for the following reasons: a. The undersigned Counsel of Record was just recently retained by Major Voorhees. Military co-counsel, Major DeYoung was assigned to the case after CAAF’s decision and the transfer of Applicant-Petitioner’s former military Appellate Defense Counsel to a different duty assignment. Neither were counsel at any stage of the proceedings below. 2 b. This was a litigated trial by a general court-martial, there was an initial appeal to the AF CCA, which in turn reversed and dismissed with prejudice, the sexual assault conviction under 10 U.S.C. § 920 for factual insufficiency, affirmed the § 933 convictions, set aside the sentence, and remanded the matter back to a new court-martial for re-sentencing purposes. After that, the case went back on appeal to the AF CCA, which affirmed, and CAAF granted review thereafter. As such, counsel must familiarize themselves with not only the trial transcripts–both of the original court-martial and re-sentencing proceedings, but voluminous appellate documentation in order to produce the best possible work-product. c. This application is not filed for purposes of delay. In addition to the sheer size of the case file at this juncture as well as counsels’ other client commitments and schedules, this additional time is respectfully both necessary and reasonable. 5. JURISDICTION: This Court has jurisdiction pursuant to 28 U.S.C. § 1259(3), as CAAF granted Major Voorhees’ Petition for Review. 6. CAAF’s decision below affirmed the convictions of five Specifications [counts] of violating 10 U.S.C. § 933, Article 133, UCMJ, for “conduct unbecoming an officer and a gentleman.” CAAF held that the mens rea or scienter instructional requirements articulated in Elonis v. United States, 135 S.Ct. 2001 (2015), do not apply to military “general intent” offenses. Nor did CAAF acknowledge the concept that a mens rea element be “read into” a criminal statute that does not contain any intent element, such as 10 U.S.C. § 933. If allowed to stand, this precedent will bind all future prosecutions under the UCMJ, where Congress has not specified a mens rea or scienter 3 element. But, under this Court’s long line of mens rea cases, especially Rehaif, an accused must at least know that his or her “conduct” is “unbecoming” before one can be convicted of violating this statute, thus triggering a mens rea or scienter instruction. Here, the Members [jurors] were not so instructed. 7. This case is a serious candidate for certiorari review. It raises the question whether the fundamental tenet that a criminal statute–other than a strict liability offense–contain (or be read in) a mens rea element as elucidated in Elonis v. United States, 135 S.Ct. 2001 (2015), and more recently in Rehaif v. United States, 139 S.Ct. 2191 (2019), applies to criminal prosecutions under the Uniform Code of Military Justice. There is no principled reason for it not to be. 8. RELATED CASE: Major Voorhees’ situation is not an isolated one within the military justice system. There is a related case, United States v. McDonald, Dkt. # 19-A191, pending before this Court, where CAAF held that “sexual assault”under 10 U.S.C. § 920, is also a “general intent” offense, not requiring any mens rea or scienter instructions to the court-martial Members as fact-finders. McDonald is likewise seeking certiorari to the CAAF’s decision in his case on the mens rea issue. 9. The potential impact of CAAF’s holding is significant to our Nation’s service men and women where, as here, CAAF has sanctioned, e.g., the criminal conviction of Major Voorhees for simply expressing in private, his wishful thinking (or 1 fantasy), by stating, “I’d like to take you back to my room.” Absent a mens rea or 1 The relevant language for that Specification states: (continued...) 4 scienter element to that language means–at least under CAAF’s interpretation of Morissette v. United States, 342 U.S. 246 (1952),2 Elonis, and Rehaif, that expressing one’s thoughts, regardless of any intended offensiveness or “evil-meaning mind,” is a crime under the UCMJ–something incompatible with the Constitution. WHEREFORE, an extension of time is respectfully requested herein. Respectfully submitted, this 18th day of October, 2019. _________________________________ DONALD G. REHKOPF, JR. Counsel of Record Law Office of Donald G. Rehkopf, Jr. 31 East Main Street, 2nd Floor Rochester, NY 14614 (585) 434-0232 [email protected] BENJAMIN H. DEYOUNG, MAJOR, USAF Appellate Defense Division Air Force Legal Operations Agency 1500 West Perimeter Road, Suite 1000 Joint Base Andrews, MD 20762 (240) 612-4770 [email protected] 1 (...continued) [Major Voorhees] did, at or near Las Vegas, Nevada, between on or about 1 November 2012 and on or about 31 December 2012, make to Senior Airman [HB], an inappropriate statement or question, to wit: “I would like to take you back to my room,” or words to that effect, and that said conduct, under the circumstances, was unbecoming an officer and a gentleman. Three of the remaining four convictions under 10 U.S.C. § 933, also involved speech. The remaining offense, Charge II, Specification 2, alleged that Major Voorhees “did, at or near, Baltimore, Maryland . massage the back of Senior Airman [HB] . .” In other words, a consensual back rub. 2 Id. at 251, the “concurrence of an evil-meaning mind with an evil-doing hand . .” 5 APPENDICES Appendix “A,” United States v. Voorhees, 79 M.J. 5 (CAAF 2019). Appdx A-1 Appendix “B,” Order denying Reconsideration (CAAF, 8 August 2019). Appdx B-1 6 United States v. Voorhees, 79 M.J. 5 (2019) panel members that they were to consider accused's conduct “under the circumstances”. 79 M.J. 5 322 U.S. Court of Appeals for the Armed Forces. Affirmed. UNITED STATES, Appellee v. *8 Military Judges: Natalie D. Richardson (trial) and Mark Paul D. VOORHEES, Major, F. Rosenow (sentence rehearing) United States Air Force, Appellant For Appellant: Terri R. Zimmermann, Esq. (argued); Major Jarett Merk and Jack B. Zimmermann, Esq. (on brief). No. 18-0372 Crim. App. No. 38836 (reh) For Appellee: Captain Anne M. Delmare (argued); Colonel Argued February 21, 2019 Julie L. Pitvorec, Lieutenant Colonel Joseph Kubler, and Decided June 27, 2019 Mary Ellen Payne, Esq. (on brief). Synopsis Judge SPARKS delivered the opinion of the Court, in which Background: Accused was convicted by general court- Chief Judge STUCKY, and Judges RYAN, OHLSON, and martial, Natalie D.
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