United States v. Gutierrez

UNITED STATES, Appellee
v.
David J. A. GUTIERREZ, Technical Sergeant
U.S. Air Force, Appellant
No. 13-0522
Crim. App. No. 37913
United States Court of Appeals for the Armed Forces
Argued December 9, 2014
Decided February 23, 2015
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Kevin Barry McDermott, Esq. (argued); Captain
Michael A. Schrama (on brief).
For Appellee: Major Brian C. Mason, (argued); Lieutenant
Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Amicus Curiae for Appellant: Lieutenant Colonel Jonathan F.
Potter, Captain Aaron R. Inkenbrandt, and Captain Amanda R.
McNeil (on brief) – Army Defense Appellate Division.
Military Judge: William C. Muldoon Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 13-0522/AF
Chief Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, a military judge sitting as a
general court-martial convicted Appellant of offenses including
aggravated assault, in violation of Article 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 928 (2012). He was
sentenced to confinement for eight years, a dishonorable
discharge, forfeiture of all pay and allowances, and reduction
to the lowest enlisted grade. The convening authority approved
the sentence as adjudged, and the United States Air Force Court
of Criminal Appeals (CCA) affirmed. United States v. Gutierrez,
(Gutierrez I), No. ACM 37913, 2013 CCA LEXIS 1014, at *14, 2013
WL 1319443, at *4, (A.F. Ct. Crim. App. Mar. 21, 2013) (per
curiam). This Court granted review based on the improper
appointment of a CCA judge, 1 and remanded the case. Gutierrez
(Gutierrez II), 73 M.J. 128 (C.A.A.F. 2013). The CCA again
affirmed. Gutierrez (Gutierrez III), No. ACM 37913 (rem), 2014
CCA LEXIS 110, at *19, 2014 WL 842651, at *4 (A.F. Ct. Crim.
App. Feb. 25, 2014) (per curiam). We then granted Appellant’s
petition to review his conviction for aggravated assault:
I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO FIND
BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED
ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM. 2
1
See United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014).
2
We also granted for review issues concerning Appellant’s
conviction for adultery, and the appellate delay that occurred
in this case:
2
United States v. Gutierrez, No. 13-0522/AF
Appellant’s conviction for aggravated assault stems from
his failure to disclose that he had human immunodeficiency virus
(HIV) prior to engaging in otherwise consensual sexual activity
with multiple partners. Reviewing the evidence in a light most
favorable to the prosecution, the expert testimony presented in
this case reflects that at most, Appellant had a 1-in-500 chance
to transmit HIV to some of his partners. There is no evidence
in the record to indicate that Appellant actually transmitted
HIV.
Under Article 128, UCMJ, an assault includes an offensive
touching. An aggravated assault includes the element that the
assault was committed with “a dangerous weapon or other means or
force likely to produce death or grievous bodily harm.” Article
128(b)(1), UCMJ. Applying a plain English definition of
“likely,” as well as this Court’s precedent regarding aggravated
assault outside the context of HIV, testimony that the means
used to commit the assault had a 1–in-500 chance of producing
death or grievous bodily harm is not legally sufficient to meet
the element of “likely to produce death or grievous bodily
II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND
BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED
ADULTERY.
III. WHETHER THE FACIALLY UNREASONABLE DELAY IN POST-TRIAL
PROCESSING DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT
TO SPEEDY REVIEW, PURSUANT TO UNITED STATES v. MORENO,
63 M.J. 129 (C.A.A.F. 2006).
3
United States v. Gutierrez, No. 13-0522/AF
harm.” Id. As a result, we reverse Appellant’s conviction for
aggravated assault, and affirm the lesser included offense (LIO)
of assault consummated by battery.
BACKGROUND
Appellant and his wife participated in what trial testimony
described as the “swinger[s’]” lifestyle, wherein they engaged
in group sexual activities with other couples and individuals.
These couples and individuals were civilians whom Appellant
generally met over the Internet, and the sexual activity
occurred at off-base meetings and parties organized for that
purpose.
While stationed at Aviano Air Base, Italy in 2007,
Appellant tested positive for HIV. In 2009, Appellant was
ordered by his commanding officer to, among other things,
“verbally inform sexual partners that [he is] HIV positive” and
“use proper methods to prevent the transfer of body fluids
during sexual relations, including the use of condoms providing
an adequate barrier for HIV (e.g. latex).” Despite having
received this order, Appellant did not inform his sexual
partners of his HIV-positive status and, in some instances, did
not use a condom.
Two of Appellant’s sexual partners testified at trial that
they trusted his word that he did not have any sexually
transmitted diseases because he was a member of the military.
4
United States v. Gutierrez, No. 13-0522/AF
When asked at trial whether they would have engaged in sexual
activity with Appellant had they known of his HIV-positive
status, Appellant’s sexual partners responded in the negative.
HD, one of Appellant’s sexual partners, testified that in
February 2010, her boyfriend found a document indicating that
Appellant had tested positive for HIV. HD knew that Appellant
and his wife planned to attend an upcoming swingers’ party, and
informed the party’s organizer of her discovery. The organizer
told HD that he would address the issue with Appellant as a
rumor, and would allow Appellant and his wife into the party
only if they could produce documentation proving that Appellant
did not have HIV. In HD’s recollection, Appellant and his wife
did not attend the party.
HD also informed RD -- HD’s ex-husband and a participant in
the swingers’ lifestyle -- of her discovery. RD testified that,
“for protection purposes,” he began to disseminate this
information among the swingers’ community, and confronted
Appellant. Appellant denied to RD that he was HIV positive.
Eventually, the staff judge advocate at McConnell Air Force
Base contacted the Air Force Office of Special Investigations
(AFOSI) to discuss Appellant’s conduct. AFOSI interviewed
Appellant’s wife, who provided information regarding his
participation in the swingers’ lifestyle and his HIV-positive
status. Based on this information, AFOSI “looked at [the case]
5
United States v. Gutierrez, No. 13-0522/AF
as an aggravated assault.” AFOSI investigated the matter and
eventually apprehended Appellant.
Appellant was charged with aggravated assault. The charges
encompassed protected oral sex, unprotected oral sex, protected
vaginal sex, and unprotected vaginal sex. At trial, the
Government’s medical expert, Dr. Donna Sweet, testified that to
transmit HIV, “there has to be some seminal -- some fluid of
some type.” According to Dr. Sweet, the risk of Appellant
transmitting HIV during protected oral sex was “zero,” and the
risk of transmission during unprotected oral sex was “almost
zero as well.” As to the risk of HIV transmission during
protected vaginal sex, Dr. Sweet testified that, when used
properly, condoms protect against the transmission of bodily
fluids “97 to 98 percent of the time.” On the risk of HIV
transmission during unprotected vaginal sex, Dr. Sweet testified
that:
[I]t is difficult data to come up with. It’s difficult to
have a lot of evidence. But the quote is that it is
somewhere between 10 and 20 positives per 10,000
encounters. That’s sort of the high-end. There are other
people that would say 1 out of 10,000 to 1 out of 100,000
given encounters. . . . [I]f you [have sex] two or three
nights a week then you’ve got a lot of exposure even though
it’s a relatively low risk. . . . But somewhere between 1
and 10 per 10,000 exposures would become infected.
During closing argument, the defense argued that “when you
actually apply the elements of aggravated assault and the
6
United States v. Gutierrez, No. 13-0522/AF
testimony of Dr. Sweet regarding the actual low risk of
transmission in these cases, you will see that he is not guilty
[of] aggravated assault[].” The military judge then acquitted
Appellant of aggravated assault insofar as the specifications
alleged protected oral sex. As a result, Appellant was
convicted of aggravated assault encompassing unprotected oral
sex, protected vaginal sex, and unprotected vaginal sex.
On appeal, the CCA looked to this Court’s 1993 decision in
United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), to conclude
that “the military judge sitting as the trier of fact could have
found all the essential elements beyond a reasonable doubt.”
Gutierrez III, 2014 CCA LEXIS 110, at *11, 2014 WL 842651, at
*3. The Government now argues that we should affirm the
conviction for aggravated assault under Joseph, because
according to that precedent, “the question is not the
statistical probability of HIV invading the victim’s body, but
rather the likelihood of the virus causing death or serious
bodily harm if it invades the victim’s body. The probability of
infection need only be more than merely a fanciful, speculative,
or remote possibility.” Joseph, 37 M.J. at 397 (citation and
internal quotation marks omitted). Appellant, joined by the
Army Defense Appellate Division acting as amicus curiae,
responds that we cannot affirm an aggravated assault conviction
given the low risk of HIV transmission detailed in the
7
United States v. Gutierrez, No. 13-0522/AF
Government expert’s testimony, which is not “likely” to result
in grievous bodily harm under Article 128, UCMJ.
DISCUSSION
“[I]n reviewing for legal sufficiency of the evidence, the
relevant question an appellate court must answer is ‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Further, in
resolving questions of legal sufficiency, we are bound to draw
every reasonable inference from the evidence of record in favor
of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations omitted).
Article 128, UCMJ, defines aggravated assault:
(a) Any person subject to this chapter who attempts
or offers with unlawful force or violence to do
bodily harm to another person, whether or not the
attempt or offer is consummated, is guilty of assault
. . . .
(b) Any person subject to this chapter who ––
(1) commits an assault with a dangerous weapon
or other means or force likely to produce death
or grievous bodily harm . . . .
is guilty of aggravated assault and shall be punished
as a court-martial may direct.
8
United States v. Gutierrez, No. 13-0522/AF
The question in this case is not whether HIV, if
contracted, is likely to inflict grievous bodily harm. Dr.
Sweet testified that, if HIV is left untreated, “the natural
history is death within the first 12 to 15 years.” She
testified that HIV can cut an individual’s life short even with
treatment, and that treatment requires taking antiretroviral
drugs “religiously” and maintaining a healthy lifestyle. The
infliction of such a disease meets any reasonable definition of
“likely” to inflict grievous bodily harm. Appellant has not
argued otherwise.
The critical question in this case, however, is whether
exposure to the risk of HIV transmission is “likely” to produce
death or grievous bodily harm. 3 Put another way, “[h]ow likely
is ‘likely?’” United States v. Johnson, 30 M.J. 53, 57 (C.M.A.
1990) (citation omitted). In the area of assault through
exposure to HIV, our Court “repeatedly has held that the risk of
harm need only be ‘more than merely a fanciful, speculative, or
remote possibility.’” United States v. Weatherspoon, 49 M.J.
209, 211 (C.A.A.F. 1998) (quoting United States v. Klauck, 47
M.J. 24, 25 (C.A.A.F. 1997); Joseph, 37 M.J. at 396–97; Johnson,
3
At the threshold, Appellant contends in his brief that he has
never been validly diagnosed with HIV, and submits post-trial
affidavits challenging his diagnosis. Appellant did not
challenge the fact of his HIV diagnosis at trial, and is not
entitled to relitigate an essential fact of the case before this
Court, which is limited to reviewing “matters of law.” Article
67(c), UCMJ, 10 U.S.C. § 867(c) (2012).
9
United States v. Gutierrez, No. 13-0522/AF
30 M.J. at 57)). We do not believe that this statement is
consistent with the statutory language of Article 128, UCMJ, as
generally applied in the context of Article 128, UCMJ.
There are at least two problems with this Court’s prior
analysis in Joseph. First, the Joseph court focused exclusively
on the likelihood that death or grievous bodily harm would occur
in the event of transmission, without consideration of whether
the risk of transmission was itself likely. 37 M.J. at 396-97.
But this Court’s case law “does not state that because the
magnitude of the harm from AIDS is great, the risk of harm does
not matter.” United States v. Dacus, 66 M.J. 235, 240 (C.A.A.F.
2008) (Ryan, J., with whom Baker, J., joined, concurring). As
one commentator has noted, “Joseph ignores the fact that it is
not the weapon that must likely cause great harm, but rather the
manner in which it is used must be likely to cause the resulting
harm.” Ari E. Waldman, Exceptions: The Criminal Law’s
Illogical Approach to HIV-Related Aggravated Assaults, 18 Va. J.
Soc. Pol’y & L. 550, 591 (2011). We agree. See United States
v. Vigil, 3 C.M.A. 474, 476-77, 13 C.M.R. 30, 32-33 (1953) (“The
crucial question is whether [the weapon’s] use, under the
circumstances of the case, is likely to result in death or
grievous bodily harm.”).
Second, Joseph adopted a definition of “likely” that
appears to be sui generis to HIV cases and is not derived from
10
United States v. Gutierrez, No. 13-0522/AF
the statute itself. “Likely” is not defined in Article 128,
UCMJ. But nowhere in the UCMJ, in the dictionary, or in case
law, is “likely” defined as “more than merely a fanciful,
speculative, or remote possibility” as it is in HIV cases.
See, e.g., United States v. Outhier, 42 M.J. 626, 635 (N-M. Ct.
Crim. App. 1995) (DeCicco, J., concurring in part and dissenting
in part) (“[T]he standard announced in Joseph and Johnson
defining a ‘means likely’ should not be extended to this [non-
HIV] case.”).
It must be correct that “[t]here is only one standard:
Whether the means used [in the assault] were ‘likely to produce
death or grievous bodily harm.’” Outhier, 45 M.J. 326, 328
(C.A.A.F. 1996). More fundamentally, criminal defendants
charged under a statute are entitled to equal application of
that statute, because the principle of “‘equality before the law
. . . gives to the humblest, the poorest, the most despised
[person] the same rights and the same protection before the law
as it gives to the most powerful, the most wealthy, or the most
haughty.’” Jones v. Helms, 452 U.S. 412, 424 n.23 (1981)
(quoting Cong. Globe, 39th Cong., 1st Sess. 2766 (1866)
(statement of Sen. Howard)).
Thus, “likely” must mean the same thing in an Article 128,
UCMJ, prosecution for an aggravated assault involving HIV
transmission as it does in any other prosecution under the
11
United States v. Gutierrez, No. 13-0522/AF
statute. In determining whether grievous bodily harm is likely,
therefore, one conception is whether grievous bodily harm is the
“‘natural and probable consequence’” of an act. Weatherspoon,
49 M.J. at 211 (quoting Manual for Courts-Martial, United States
pt. IV, para. 54c(4)(a)(ii) (MCM)). The ultimate standard,
however, remains whether -- in plain English -- the charged
conduct was “likely” to bring about grievous bodily harm. As
related to this case, the question is: was grievous bodily harm
the likely consequence of Appellant’s sexual activity?
As to unprotected oral sex, the expert testimony in this
case is that the risk of HIV transmission was “almost zero.”
According to Dr. Sweet’s testimony, 4 that risk does “[n]ot
really” change in the case of ejaculation. There should be no
question that a risk of “almost zero” does not clear any
reasonable threshold of probability, including under the rubric
this Court has heretofore applied in HIV-exposure cases, which
required that the risk must be more than “fanciful, speculative,
or remote.” Joseph, 37 M.J. at 397 (citation and internal
quotation marks omitted). Appellant’s conviction for aggravated
assault, to wit, engaging in unprotected oral sex without
disclosing his HIV-positive status, is legally insufficient
4
We note that Dr. Sweet’s testimony is consistent with
information on HIV transmission risk published by the Centers
for Disease Control. See Centers for Disease Control and
Prevention, http://www.cdc.gov/hiv/policies/law/risk.html (last
updated July 1, 2014).
12
United States v. Gutierrez, No. 13-0522/AF
because no rational trier of fact could conclude that his
conduct was likely to cause grievous bodily harm. Jackson, 443
U.S. at 319.
In the case of protected vaginal sex, we have previously
concluded that “[t]he fact that a male uses a condom during
sexual intercourse is not a defense to [aggravated] assault.”
Klauck, 47 M.J. at 25. That conclusion does not, however,
answer the question presented, which is whether Appellant’s
conduct was likely to inflict grievous bodily harm. 5 The expert
testimony in this case makes clear that condom use protects
against the transmission of bodily fluids in ninety-seven to
ninety-eight percent of cases, and that any HIV transmission
risk only obtains in the transmission of bodily fluids.
Further, Dr. Sweet, the Government’s expert witness, agreed with
trial defense counsel that the risk of HIV transmission in the
case of protected vaginal sex was only “remotely possible,”
meaning the conviction cannot be sustained even under Joseph.
Appellant’s conviction for aggravated assault by protected
vaginal sex is legally insufficient, and Klauck is expressly
overruled.
5
Arguing from Klauck, 47 M.J. at 26, the Government asserts that
we should disregard the efficacy of condom use because condoms
are not infallible, and condoms must be used properly to combat
sexually transmitted disease. Nothing in the record suggests
that the condoms Appellant used were defective or improperly
employed, and so no basis exists to question the utility of
condoms in this case.
13
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Turning to unprotected vaginal sex, Dr. Sweet’s testimony
put the maximal risk at 20 out of 10,000, which equates to 1 in
500. She described this figure as the “high-end” statistic, and
appears to have concluded in her own assessment that “between 1
and 10 per 10,000 exposures would become infected.” 6 In any
event, accepting the high-end statistic of 1-in-500 exposures
resulting in HIV transmission from unprotected vaginal
intercourse consistent with our obligation to construe the
evidence in the light most favorable to the prosecution under
Jackson, we conclude that HIV transmission is not the likely
consequence of unprotected vaginal sex. This is so because, in
law, as in plain English, an event is not “likely” to occur when
there is a 1-in-500 chance of occurrence. As a result,
Appellant’s conviction for aggravated assault by engaging in
unprotected vaginal sex is legally insufficient under Jackson.
That Appellant’s conviction for aggravated assault is
legally insufficient does not mean that Appellant’s conduct is
beyond the reach of military criminal law. Unlike several other
jurisdictions that have created statutory crimes of HIV
nondisclosure, Congress has not criminalized HIV nondisclosure
6
This Court is cognizant that the experts in these cases are
dealing in magnitudes of probability, not mathematical
certainty. The legal question in all aggravated assault cases
remains whether the infliction of grievous bodily harm is
“likely” to come about.
14
United States v. Gutierrez, No. 13-0522/AF
in the UCMJ. Thus, prosecutors have relied on generally
applicable punitive articles to litigate these cases. See Derek
J. Brostek, Prosecuting an HIV-Related Crime in a Military
Court-Martial: A Primer, Army Law., Sept. 2009, at 29 (“The
most common methods of charging HIV-related misconduct under the
UCMJ are aggravated assault under Article 128, violation of a
‘safe-sex’ order under Article 90 or 92, and conduct that is
prejudicial to good order and discipline and/or service
discrediting under Article 134.”) (footnotes omitted). There is
nothing improper regarding the government’s reliance on
generally applicable statutes to prosecute criminal conduct, but
in cases involving HIV exposure, the government will be held to
its burden of proving every element of the charged offense in
the same manner that is required in other cases invoking the
same statute. As Judge Wiss wrote in his separate opinion in
Joseph:
[W]hen the Government comes before a court of law and tries
to fit a round peg of conduct into a square hole of a
punitive statutory provision, it is not the proper function
of the court to reshape the hole so that it will accept the
peg and, in the process, distort the hole’s character.
Rather, it is the proper limit of the court’s function to
consider whether the hole -- politically determined --
already is large enough so that the peg fits within it.
37 M.J. at 402 (Wiss, J., concurring in the result).
Judge Wiss’s concern that the law should not adopt a sui
generis standard in cases involving HIV exposure should have
15
United States v. Gutierrez, No. 13-0522/AF
governed in Joseph, and similar concerns guide our decision
today. On this record, the Government failed to prove that any
of Appellant’s acts were “likely” to transmit HIV, i.e., that
HIV transmission was “likely” in the sense of applying plain
English in the context of the facts and circumstances presented
in this case. Thus, Appellant’s conviction must be reversed as
to each specification of aggravated assault.
In the place of aggravated assault, the Government urged
this Court at oral argument to affirm offenses of attempted
aggravated assault. The Government has not proven the elements
of that offense. An attempt requires “specific intent to commit
[the] offense,” Article 80(a), UCMJ, 10 U.S.C. § 880(a) (2012).
Thus, an attempted aggravated assault charge may lie when an
accused knew he was infected with HIV and, using a syringe of
his blood or intentionally using his body as a weapon,
specifically intended to inflict grievous bodily harm as
demonstrated by the evidence at trial. No evidence of specific
intent to inflict grievous bodily harm was presented in this
case.
The question remains whether the evidence is legally
sufficient to affirm a lesser included offense of assault. The
offense of assault consummated by battery requires that the
accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily
harm’ means any offensive touching of another, however slight.”
16
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MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct
included an offensive touching to which his sexual partners did
not provide meaningful informed consent. See R. v. Cuerrier,
[1998] 2 S.C. 371, 372 (Can.) (“Without disclosure of HIV
status there cannot be a true consent.”). He is therefore
guilty of assault consummated by battery, and we affirm that
offense as a lesser included offense of aggravated assault. See
United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011)
(“Article 79, UCMJ, [10 U.S.C. § 879 (2012)] provides the
statutory authority . . . for an appellate court to affirm . . .
an LIO.”).
CONCLUSION
We expressly overrule United States v. Joseph, 37 M.J. 392
(C.M.A. 1993), and hold that Appellant’s conviction for
aggravated assault is legally insufficient. 7 The decision of the
7
The conviction for adultery is legally sufficient, and
affirmed. Adultery requires that the accused (1) wrongfully had
sexual intercourse with a certain person; (2) that, at the time,
the accused or the other person was married to someone else; and
(3) that, under the circumstances, the conduct of the accused
was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed
forces. MCM pt. IV, para. 62.b. In this case, Appellant’s
conduct was wrongful because he violated his commanding
officer’s order to obtain informed consent and use protection
prior to engaging in sexual activity. For these same reasons,
Appellant’s conduct falls outside of the constitutional liberty
interest recognized in Lawrence v. Texas, 539 U.S. 558 (2003),
and applied to the military justice system through United States
v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). The participation of
Appellant’s wife in the offense is immaterial to the question
17
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United States Air Force Court of Criminal Appeals is reversed as
to the allegations of aggravated assault set forth in Charge III
and its specifications. Accordingly, Charge III and its
specifications are affirmed only as to the lesser included
offense of assault consummated by battery. The lower court’s
decision as to the remaining charges and specifications is
affirmed, but its decision as to the sentence is reversed. The
record of trial is returned to the Judge Advocate General of the
Air Force for remand to the lower court for its determination to
either reassess the sentence or to set aside the sentence and
order a rehearing. On remand, the CCA shall also consider
whether Appellant’s due process rights were violated by the
facially unreasonable appellate delay that occurred in this
case. See United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).
presented, which is whether the Government presented legally
sufficient evidence at trial to sustain the conviction.
18