CAAF will hear oral argument in the Air Force case of United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page), on Tuesday, December 9, 2014. The case involves a diverse set of issues and an unusual fact pattern. Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all relate to “engaging in sexual relations without informing his partners that he had tested positive for the Human Immunodeficiency Virus (HIV).” App. Br. at 2.

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

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).

If this background doesn’t make this case unusual enough, Appellant’s brief begins its statement of fact with the following sentence:

Appellant, with the express consent and involvement of his spouse, Gina Gutierrez, engaged in a “swinger’s lifestyle” while assigned to McConnell AFB.

App. Br. at 3. And then there’s another twist:

After trial, Appellant’s medical records were reviewed by Dr. Rodney Richards, a preeminent chemist and expert in the field of HIV testing. (J.A. 321-40). Dr. Richards’ review of the records led him to the conclusion that Appellant was not HIV positive.

App. Br. at 7.

Appellant asserts that the evidence is legally insufficient on the basis that “the evidence submitted at trial fails to satisfy the requirement that Appellant’s conduct posed a legitimate risk of harm that could cause death or grievous bodily injury.” App. Br. at 11. Even assuming that Appellant actually has HIV, Appellant notes that:

the government’s own expert, Dr. Sweet, opined that the Appellant would have been unlikely to infect others. Her estimates of infection ranged from 1 in 10,000 to 1 in 100,000.

App. Br. at 12. The Government’s response is to assert that Appellant’s argument is tired:

Appellant’s argument here is an echo of trial defense counsel’s argument at trial regarding statistical probability of infection as it relates to the risk of harm. (J.A. at 234-46.) The military judge and the Air Force Court of Criminal Appeals were not persuaded by this argument, and this Court should reach the same conclusion.

Gov’t Br. at 7. The Government also notes that “all but one of Appellant’s victims in this case testified that they would not have had sex with Appellant had they known that he was HIV positive.” Gov’t Br. at 12. I can’t help but wonder if the Defense objected to this testimony at trial, as it’s clearly irrelevant. The distinction between fraud in the inducement and fraud in the factum in assault cases is well-settled:

In discussing the consent issue, we relied on the recognized distinction between fraud in the inducement and fraud in the factum. The classic statement of the difference between the two was made by Judge Cox in United States v. Booker, a rape case:

Clearly, fraud in the inducement includes such general knavery as: “No, I’m not married”; “Of course I’ll respect you in the morning”; “We’ll get married as soon as . . .”; “I’ll pay you ___ dollars”; and so on. Whatever else such tactics amount to, they are not rape.

The question is — what is fraud in the factum in the context of consensual intercourse? The better view is that “factum” involves both the nature of the act and some knowledge of the identity of the participant. Thus in the “doctor” cases, consent would not be present unless the patient realized that the “procedure” being employed was not medical, but sexual. . . . [W]e take it that even the most uninhibited people ordinarily make some assessment of a potential sex partner . . . before consenting to sexual intercourse. Thus, consent to the act is based on the identity of the prospective partner.

25 M.J. 114, 116 (C.M.A. 1987) (citations omitted). Professors Perkins and Boyce put it this way:

The general rule is that if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent . . . if the deception related not to the thing done but merely to some collateral matter . . . .

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 215 (3d ed. 1982).

United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007). The fact that Appellant’s sexual partners would not have engaged in the activity with him if they had known that he was HIV positive is legally insignificant.

The issue of the statistical likelihood of actual injury to Appellant’s sexual partners reminds me of another Air Force case: United States v. Burns, No. S32084 (A.F.Ct.Crim.App. Dec. 18, 2013) (discussed here), aff’d, 73 M.J. 408 (C.A.A.F. Jun. 2, 2014) (summary disp.) (discussed here). In Burns, the AFCCA found that “the Government failed to demonstrate that the appellant’s act of firing a single shot into the air was unsafe to human life in general.” Slip op. at 4. CAAF avoided the issue of precisely what it takes to make an act unsafe in Burns, but the issue is squarely before the court in Gutierrez.

On the second issue, Appellant asserts that the liberty interest identified by the Supreme Court in Lawrence v. Texas protects his liberal sexual lifestyle:

This issue turns on whether military authorities have a rational basis to prohibit and criminalize non-spousal sexual intercourse occurring within a marital relationship. Today, following the United States Supreme Court’s landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003), that answer has to be negative.

App. Br. at 14. But Appellant’s argument focuses on the sexual activity, and it gives only a brief mention to the fact that the UCMJ’s prohibition of adultery is not tied to the sexual act, but rather is tied to its prejudicial effect or discrediting nature (a fact recently emphasized by the NMCCA). Moreover, CAAF recently rejected an argument practically identical to the one advanced by Appellant. Last term, in the Army case of United States v. Goings, 72 M.J. 202 (C.A.A.F. May 23, 2013) (CAAFlog case page), CAAF affirmed a conviction for indecent acts in violation of Article 134 based upon the appellant’s actions permitting a third-party to watch and videotape consensual sexual activity between the appellant and his partner. In the decision, CAAF rejected an as-applied constitutional challenge to the charge. Writing for a four-judge majority Judge Ryan explained:

No one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence. But that does not answer the altogether different question whether permitting a third party to observe and memorialize one’s sexual activity on videotape is categorically protected as “wholly private and consensual sexual activity” where the trier of fact has deemed the conduct to be prejudicial to good order and discipline in the armed forces and service discrediting. We hold that, under the circumstances of this case, it is not.

Goings, 72 M.J. at 206, slip op. at 11 (emphasis added). And even if there is a constitutionally-protected liberty interest at stake in an adultery prosecution, CAAF explained how Article 134 could be used to prosecute constitutionally protected conduct in United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) (requiring a direct and palpable connection between the conduct and the military mission or military environment). The MCM’s requirements for an adultery conviction are likely sufficient to satisfy the heightened standard under Wilcox, and I think Appellant’s argument on this issue has little chance of success.

The final issue addresses the effect of the post-trial delay in the case arising from the problems at the Air Force CCA. I’ve been amazed by the deep well of patience that CAAF has had for the Air Force military justice system over the past few years. While CAAF is not charged with general supervision of military justice, the Air Force has avoided any significant criticism from CAAF as it has addressed numerous the mess at the AFCCA (our #9 military justice story of 2013). For instance, CAAF’s decision in Janssen focused on the actions of higher authority (the Secretary of Defense), and its decision on the delay issue in United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), gave the Air Force little more than a tap on the wrist (merely noting that “the trend of delay at the Air Force CCA is troublesome . . .” Merritt, 72 M.J. at 492, slip op. at 23).

Perhaps with Gutierrez CAAF’s well of patience has finally run dry.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
• Brief of Amicus Curiae (Army Defense Appellate Division)
Blog post: Argument preview

21 Responses to “Argument Preview: United States v. Gutierrez, No. 13-0522/AF”

  1. RY says:

    Anyone else find the Gov’t argument about numbers comical?  They argue that 1-500 is a very real possibility.  Imagine that…all an accused needs at trial is a real possibility and he’s not guilty.  I can’t imagine a trial counsel anywhere in the universe that would accept 1 in 500 as a real possibility.  But the Gov’t on appeal assures us it is a very real possibility.  Poppycock!
     
    On a separate note…I’ve never liked the questions – TC to Alleged Victim: would you have had sex with Accused if you knew X, Y, or Z?  They’ve always seemed objectionable to me and irrelevant as the question is whether there was consent at the time, not speculation in retrospect.  I suppose if the theory is fraud in factum, but that is never the case and never the theory.  Well I suppose maybe it happens 1 in 500 cases, so it may be a possibility.

  2. stewie says:

    Comical? No. I mean it may turn out that they can’t get there from here as it were because of how the law is set-up, but I totally understand attempting to find a way to make this work from the government’s point of view. I understand the difference between the two types of fraud, and agree with them most of the time, but I wonder if an exception wouldn’t work for this area. HIV is the only potentially fatal (and not easily treated–I’m looking at you Syphilis) STD out there that I’m aware of. It also carries a life-long stigma no other STD carries. It’s somewhat unique.
     
    At any rate, I don’t know what would count as a real possibility of infection. Obviously, 1/500 sounds low on the surface, but if it were DNA and it was 1/500 that it was someone else, we’d view that as way too likely to convict BRD. I don’t know, I get the government has a weak hand here but I don’t think this is a case where I blame the government for trying.

  3. Christopher Mathews says:

    The fact that Appellant’s sexual partners would not have engaged in the activity with him if they had known that he was HIV positive is legally insignificant.
    I’m not sure you can rely on Carr for that proposition.  Remember, CAAF specifically cited and concurred with the service court observation that “to grossly mislead a patient about such critical information [the appellant’s medical qualifications] amounts to fraud in the factum” before holding that the appellant’s pleas were provident.  Assuming the government can convince CAAF that HIV status is “critical information” to a person selecting a partner with whom to have unprotected sex, and that omission of such a material fact is as important as an affirmative lie, Carr may well support the conviction.
    (Disclosure: I was the author of the service court opinion in Carr).

  4. Zachary D Spilman says:

    Well, I think Carr had very different facts:

    The Government was not satisfied with Appellant’s pleas to the lesser included offenses and presented the testimony of seven of the eight women he was alleged to have indecently assaulted. They testified that Appellant represented to them that he was training to be a gynecologist, and most testified that Appellant claimed they would be paid for participating in his training or would receive prescription contraceptives. He performed at least one pelvic examination on each woman, inserted his fingers and a speculum into each victim’s vagina, and drew blood, or attempted to draw blood, from most of the victims. These examinations did not occur in clinics or hospitals, but in hotel rooms, houses, or (in one instance) the back of a U-Haul truck. He told at least one female acquaintance that he got “turned on” when performing pelvic exams on young women. The victims later learned Appellant worked in the motor pool and was neither a licensed physician nor in any training program to become one. He did not help the women obtain contraceptives, nor did he, with two exceptions, keep his promise to pay the women.

    United States v. Carr, 65 M.J. 39, 40 (C.A.A.F. 2007). Put differently, Carr misled his victims about the nature of the activity (he told them it was a medical exam, when in reality it had no legitimate medical purpose). The facts of Gutierrez are radically different. Appellant’s sexual activity was just sexual activity, and his partners consented to activity knowing that it was sexual activity.

    But more importantly, “the issue of consent was never [relevant] because one cannot consent to an act which is likely to produce grievous bodily harm or death.” United States v. Outhier, 45 MJ 326, 330 (C.A.A.F. 1996). So the post-hoc testimony of Appellant’s sexual partners that they wouldn’t have consented had they known about his HIV status is irrelevant (and, I think, highly inflammatory).

  5. Christopher Mathews says:

    The holding in Carr, however, was that the appellant’s lies about himself amounted to fraud in the factum.  
    As to the relevance of what the victims would have done had they known the truth: both the service court and CAAF specifically relied on evidence in the record that they would not have consented to his acts had they known the truth about Airman Carr.  It may be that such evidence is irrelevant, but the case doesn’t really stand for that proposition.
    Finally, re your observation that consent is irrelevant because one cannot consent to an act likely to produce death or GBH — I don’t think that would be an especially-productive line of defense for Gutierrez.  But I’m sure the government would be happy with it.

  6. Zachary D Spilman says:

    I agree that CAAF’s holding in Carr (a guilty plea case) centered on the appellant’s lies about himself. But I don’t agree that the case is analogous to the circumstances of Gutierrez. CAAF’s conclusion in Carr (link to slip op.) was that:

    This case involved the pretended practice of a learned profession, and misrepresentation of Appellant’s status as a practitioner (or a student) of such a profession. As the Court of Criminal Appeals said below:

    In professional settings, the qualifications of the service provider often are more important than his or her identity. A patient slated for arthroscopic knee surgery, for example, might have no qualms about substituting Dr. Able for his preferred physician, Dr. Baker, if both are equally qualified; and yet that same patient would adamantly refuse to allow Airman Charlie, from the motor pool, to scrub up instead. The critical issue is not who wields the scalpel, but whether they are qualified to do so. We believe that to grossly mislead a patient about such critical information amounts to fraud in the factum.

    Carr, 63 M.J. at 620-21.

    We agree. The plea inquiry amply showed that Appellant had neither medical training nor license, that his lies about his qualifications induced his victims to submit to him, and that he performed pretended examinations that he was not qualified or licensed to perform. Once the military judge elicited from Appellant that he lacked training and qualifications, that was sufficient to render his plea provident under Prater. Under our case law, Appellant’s lies amounted to fraud in the factum, and his pleas were provident.

    65 M.J. at 32. Your conclusion about a grossly misled patient in Carr is wholly consistent with Judge Cox’s holding in Booker about “the nature of the act and some knowledge of the identity of the participant.” 25 M.J. at 116. But in Gutierrez there was no fraud about the purely-sexual nature of the encounter. Rather, there was fraud about a condition of one of the participants. If that is enough to create fraud in the factum, then so too would be the other circumstances considered by Judge Cox:

    such general knavery as: “No, I’m not married”; “Of course I’ll respect you in the morning”; “We’ll get married as soon as . . .”; “I’ll pay you ___ dollars”; and so on. . .

    25 M.J. at 116. Where would one draw the line? A cold? A particular blood type? Certain genetic traits?

    As for consent, consent is only precluded if the evidence is legally sufficient to prove an injury that could cause death or grievous bodily harm. If CAAF finds that the evidence is not legally sufficient (perhaps because of the unlikelihood of infection), then consent is a defense (and so too is mistake of fact as to consent). That then returns us to the question of fraud.

    CAAF might ultimately answer the fraud question in Gutierrez. If the court finds that the evidence is legally insufficient to prove an injury that could cause death or grievous bodily harm, but then considers affirming the lesser included offense of simple battery, that might force the court to consider the fraud issue. But because it looks like the Government didn’t present a simple battery theory at trial, I suspect CAAF’s decision will be all-or-nothing.

  7. stewie says:

    There may not be a difference in kind between “I’ll respect you in the morning” and “I’ve got the AIDS” but there is certainly a huge difference in degree between those two things (or really just about any other thing than HIV).
     
    The unique nature of HIV is something that’s getting underplayed here IMO. Exceptions happen, this is one where I think an exception would be both appropriate and would not swallow the rule.

  8. anon81 says:

    The bit about Dr. Rodney Richards opining that Gutierrez is a bit of a red herring. He’s a well-known HIV/AIDS denialist that works for the “Office of Medical and Scientific Justice,” omsj.org. They attack the diagnosis of HIV by saying that the screening test warning labels put in a disclaimer that the test is not to be used to diagnose HIV. When they test the accused’s blood (when it is filled with antiretroviral drugs designed to suppress the virus) and find no virus, they proclaim he/she doesn’t have HIV. This can be persuasive for an asymptomatic accused without any expert testimony to rebut these assertions, but severely problematic is the underlying agenda that HIV is a harmless virus that does not cause AIDS. One of the omsj experts was on South African President Thabo Mbeki’s AIDS response panel, whose decision to not provide ARVs to indigents is directly responsible for an untold number of preventable deaths.
    But I digress. The decision to not pursue a battery theory may prove problematic here, as the means or force likely to cause GBH is on shaky ground.

  9. Christopher Mathews says:

    I don’t think that I said Carr is necessarily analogous to Gutierrez; only that it doesn’t stand for the proposition cited in the original piece. 
    Based on what I know about the current case (which frankly is much less than I know about the former one), I think government counsel have some distance to travel before they can rely on Carr.  But I don’t believe it’s much of a stretch to expect them to get there.

  10. jimmy johnson says:

    in response to “anon81” ..well, umm, there isn’t any 100% sure way to prove someone has HIV, it is that simple.  The tests all contain such disclaimers, and are evaluated in tandem with responses to a questionaire..if you are in the “risk group” they look at the results differently!  Not only that, what they actually test for are antibodies that the body produces when it is healthy, in response to any number of factors, including even heavy exercise, along with pregnancy, drug consumption (legal or illegal), or just because you have a bad cold or something.  These are the facts of HIV testing.  If you look deeper, at what HIV allegely IS, and what it allegedly DOES, and the shaky proofs of these things, it gets very very very murky to say the least.  And in other areas such as statistics (xx million infected, xx million dead) things are beyond murky…they are ludicrously transparent untruths.

  11. jimmy johnson says:

    I forgot to add one other important point.  “HIV” testing is done differently in different countries, and it is entirely possible for an individual to test positive in one country, walk across a border and test negative.  It’s not the same tests, and if it is the same tests (Western Blot, ELISA, or what) as I just wrote, the same results can be viewed differently.  If you are admit to the questions that you are a young gay haitian male and admit to having 100s of partners and doing heroin, they are going to read the same result different than if you are a middle age, white, married person from rural Nebraska who drinks a beer or two on Friday night.  This is absolutely true.  Because, quite simply, the tests don’t show any viruses, and don’t prove anything.  That is a gospel fact, God be my witness.

  12. stewie says:

    So, JJ, couple of questions. Are you one of those folks who don’t believe HIV causes AIDS? I ask because you put HIV in irony quotes at least once.  Second, if you do (because if you don’t there’s no point in further questions), then what test would you accept for HIV?  We generally identify diseases either by finding the live virus, or by finding antibodies.  I would think the body doesn’t normally produce specific HIV antibodies from “heavy exercise.”  I can concede it’s possible testing procedures aren’t perfect perhaps (although given the volume/attention I’m skeptical of your/that claim).  But looking for antibodies to find out if you have a disease is a pretty time-honored scientific concept.

  13. stewie says:

    For clarity, If you DO believe HIV causes AIDS, then I have further questions as stated, and if you don’t then there’s no point.

  14. Another Perspective says:

    @jimmy johnson – you will probably have a promising career working for Mr. Baker and the rest of the AIDS denialists (a.k.a. OMSJ).  Or maybe you do already…
    @RY –   Comical?  Did you hear the argument?  This case is all about statistics.  The whole issue hinges on whether there is a difference between 1:500 and, as referenced in US v. Dacus, 1:50,000.  This is especially true where the case law states that the risk of transmission need only be more than a merely fanciful, remote or speculative possibility.  If you think that argument is comical, you missed the boat. 

  15. Dr. K. Soona says:

    As a scientist I am really taken aback by all the nonseses I keep on reading eveytime the Hiv/AIDS lie is at stake. Hoping these people are not just the same omnipresent silly “trolls/debunkers” who speak words that don’t hold a drop of water, let’s set the record staight as it still seems someone confuses science with religion:
    – from 1996 many cases of hiv negative people with positive viral loads have been reported and published (Annals of Internal Medicine: http://www.ncbi.nlm.nih.gov/pubmed/9890848) and Montagnier/Sinoussi themselves were the first ones in 1985 to demonstrate that a “positive” hiv antibodies test turns back “negative” and CD4 count (always confused with the immune system when it’s a totally different thing) returns to a normal level by stopping certain behaviors like unprotected anal sex (Annals of Internal Medicine: http://www.annals.org/content/103/4/545.abstract);Let’s go on with some more ortodox literature: the so called “hiv proteins” are naturally found in NORMAL human placenta has shown in the American Journal of Reproduction and Immunology: http://www.ncbi.nlm.nih.gov/pubmed/1930645; so how can we believe in an exogenous viral genome?There’s an incredible number of people who tested positive and then negative after weeks, months or years (I’ve seen many cases myself): http://www.ncbi.nlm.nih.gov/pubmed/9863108; if one had really been infected with a virus, he would never lose IGG antibodies, but only IGM. Let aside the genome.
    As far as totally crazy indirect markers like PCR, many professionals (pretend to?) ignore that the “Hiv” genes amplified with the PCR are GAG, POL and ENV. These genes share extensive sequence homologies (in fact they encode the same proteins which have the same function such as POL, encoding the polymerase or reverse transcriptase) and since the PCR amplifies only a portion of the gene, the probability of a non-specific amplification is so high to be recognized even from a legal standpoint. For this reason, the PCR cannot be used for diagnosis. In detail, the PCR amplifies usually the opening reading frames that are highly conserved, that is common to genes of different species or strains. Finally, depending on the manufacturer, the stringency conditions, that is, the specificity, vary greatly. GAG, POL and ENV genes are common to all retroviruses which means that the PCR can amplify any gene of any retrovirus, pathogenic or not, whose RNA can be extracted from the blood of the subject examined in a given time. For this reason, the PCR (the so-called viremia) is not among the criteria for the diagnosis of HIV infection because it is very little specific. If it is not specific to the point that it cannot be used for diagnosis, how can it be to prove that HIV exists?
    Iolation and purification are the first step to find a unique viral genome but we are still waiting for this evidence (IN VIVO and not IN VITRO); but nothing exists about this pivotal aspect, as confirmed by Montagnier, Gelderblom, Bess etc. The so called Hiv-protein are cellular and not viral. Period.
    Last but not least (as this went totally unnoticed): in 2012 an Italian research group has (again) demonstrated and published in the prestigious journal Blood that “we be can be exposed to HIV many times” and stay (or return) seronegative (http://www.ncbi.nlm.nih.gov/pubmed/22286198) These researchers, using sophisticated molecular analyses have shown that there are individuals whose CD4 bear track (signature of miRNA) of the molecular encounter with HIV but remain (or return to be) seronegative. The keywords are at the beginning of the discussion: “In this study, we have shown that exists a miRNA signature that discriminate infected from exposed uninfected subjects”. That is, there are people with multiple exposures that have met unequivocally the virus (miRNA signature), defined as “exposed” but who remain (or return to be) seronegative, and according to them, “uninfected”. This is the molecular demonstration of the words of Prof. Montagnier “HIV can meet as many times as you want and your immune system will release it in a few weeks, if you have a good immune system.” This means that before comes immunodeficiency and then the productive infection of HIV and its possible chronicity.
     
    This work clearly demonstrates that the antibody tests are not able to detect HIV infection because you can have encountered the virus (as demonstrated by the molecular signature), but be seronegative. If you enter into the details, of course the study shows that exposure had occurred a long time before, so it is not that they still have to become HIV + or will become it a little bit later. This is clearly written in the discussion If we want to interpret these findings from the standpoint of “orthodoxy”, it means that the antibody tests underestimate the true exposure and consequently the spreading of the “virus”. The “virus” is then present and circulates in many HIV-negative people, but since they obviously do not get sick from AIDS, this is the best proof that HIV does not cause AIDS alone, and in some (many or few, we do not know) cases individuals “get rid of it” so rapidly that they cannot even become infected with HIV. Which in turn means that the “HIV seropositivity” is not only caused by HIV, but from other causes.
    In short, this amazing article proves that: 1. Individual can be exposed to HIV and/or its specific proteins and remain HIV-negative. This in turn demonstrates the famous words of Prof. Montagnier. 2. HIV-exposed individuals who do not become HIV-positive will never develop AIDS by definition. This demonstrates that HIV exposure by itself is not sufficient to cause AIDS. 3. Antibody tests (Elisa or Western blot) are therefore inadequate to detect HIV exposure since the Authors demonstrate that there are individuals who bear molecular signature of multiple exposures to HIV but remain HIV-negative at the antibody tests. 4. Therefore, HIV-positivity is not due to HIV exposure alone; evidently factors other than HIV exposure determine HIV positivity. 5. Vaccines are doomed to be ineffective because of these findings; this is clearly written at the end of the discussion section with a slightly more diplomatic language. Even more concisely. According to these new molecular evidences: HIV alone cannot cause AIDS. HIV alone cannot cause HIV-positivity. Antibody tests do not detect HIV exposure. Factors other than HIV cause HIV-positivity. Vaccines cannot be effective.
    Never heard of these right, or too hard to understand?
    You bet: this is “denialism”.
    Keep up the good work Mr. Baker and congratulations.
    Sincerely yours,
    Dr. Soona.

  16. stewie says:

    1. Correct me if I am wrong, but you can theoretically be “exposed” to just about any virus and remain negative for that virus. Maybe the exposure is so low that your immune system takes them all out before they have a chance to get a foothold, or maybe you encounter a significantly weakened version of the virus that ordinarily would win the day but doesn’t.
     
    2.  Your 2 is just an extension of 1.  If you are exposed but really lucky, you end up fighting off the virus before it can gain a foothold.  I don’t plan on running around with people with HIV having unprotected sex based on that theory though, do you?
     
    3.  I think the fact that some tiny minority of folks are either in that tiny subset that seem to have some level of natural immunity to HIV, and/or were in the lucky subset of 1/2 exist, doesn’t mean that the tests you list are useless.  I’m sure somewhere out there is a person who you could drown ’em in HIV and it wouldn’t do a thing.  No test is 100% but that’s not the requirement, in science or the law.
     
    4. This does not follow from anything you’ve typed. All that you’ve typed is that it isn’t 100% certain that the presence of HIV antibodies on a test means that you currently have the HIV virus in your system. I think that’s true. Either because of the tiny, but real occurrence of false positive tests, and because on very rare occasions, people fight off the virus completely.  I think those are both fair arguments to make at trial on behalf of the accused, as is a discussion of viral load and statistical possibility of infecting others.
     
    5. What? No.
     
    None of this is too hard to understand at all. You start with some logical points, then you take a wrong turn at Albuquerque.

  17. Clark Baker says:

    “anon81” and his anonymous cohorts raise the specter of DENIALISM dehumanize those who question alleged HIV co-discoverer Robert Gallo’s dubious integrity as somehow denying the existence of AIDS itself.
    Despite these often-repeated claims, investigators like Dr. Richards do not question the existence of AIDS.  He understands that co-factors like malnutrition, septic water, disease, environmental conditions, drug use and self-destructive behavior can degrade a body’s ability to protect itself from infection and cause death is well understood by a majority of experts – including HIV discoverer Luc Montagnier MD.
    Anon81 (and associates) make their claims anonymously because, if they did so publicly, we would know that his employers are funded largely by the multi-billion dollar pharmaceutical industry, which partners with the US Military HIV Research Program”, which oversees the testing, diagnosis, and treatment of HIV for the military.
    In the numerous military cases that the Office of Medical & Scientific Justice (OMSJ) has assisted in, we found that NONE of the accused HIV+ servicemembers were ever competently tested or diagnosed for HIV.  Many were tested shortly after receiving numerous pre-deployment inoculations, which are known to produce false positive HIV tests.  Respected science and medical journals have established there are at least 70 factors that can produce false positive test results, including vaccines for the flu (1, 2, 3, 4, 5, 6, 7, 8) and hepatitis (9, 10, 11, 6), autoimmune diseases (12, 13, 10, 11, 14, 6), and pregnancy  (15, 16, 17, 18, 19, 20, 21 & 22).
    In the numerous cases where OMSJ examined the blood of these servicemembers, OMSJ found no evidence of clinical symptoms (in their medical record) or HIV in their blood.  These facts raise grave doubts about the reliability of the biological tests, which threatens the billion dollar industry that funds the MHRP, which could be why the Gov’t works so hard to silence our experts (see motion to dismiss).
    OMSJ has also found evidence that MHRP has routinely deviates from DoD, FDA, and military directives.  With regard to the testing, diagnosis, and treatment of HIV, OMSJ suspects that hundreds – if not THOUSANDS – of healthy, productive, asymptomatic servicemembers have been recklessly misdiagnosed since the 1990s, resulting in the loss of career opportunities, premature discharge, the unnecessary prescription of highly toxic “black box” HIV drugs, and the wrongful conviction and sentencing of factually innocent servicemembers who are forever labeled as “sexual predators”.
    “anon81” characterizes Dr. Richards as a “denialist” because doing so detracts from the fact that, as a chemist and patent holder of HIV tests, Dr. Richards is more than qualified to discuss the reliability of this flawed wholly-unreliable technology.
    These easily-proven facts remain suppressed by the Gov’t (and a complicit media that relies on pharmaceutical advertising).  But when Americans are finally aware of the facts regarding HIV, HEP C, Ebola, H1N1, and other gov’t/pharmaceutical marketing schemes, virologists will find their rightful place in fading strip mall storefronts, between the astrologers and palm readers.
    For additional information, check out this report and Cliff Notes.  Testimonials about OMSJ’s work are found at this link.
    Clark Baker, OMSJ (USMC/LAPD ret)

  18. Clark Baker says:

     
    So Stewie – You asked JJ (10 Dec 4:47PM) if he BELIEVES that HIV causes AIDS.  Like faith, belief is a theological attribute that has nothing to do with scientific inquiry or evidence.
     
     
     
    When the inventor of PCR (DNA fingerprinting) was asked to help create a “PCR test” for HIV, one of his first requests was for proof that HIV causes AIDS.  Although he believed that HIV caused AIDS, he – like thousands of other scientists – was astonished to find that there was no proof that HIV causes AIDS (video interview).  So while one might BELIEVE that Elvis lives, real investigators need replicable proof.  That doesn’t appear to exist.
     
     
     
    With regard to what test a real investigator would approve to detect HIV, that doesn’t exist because the first proof doesn’t exist.  But for the sake of argument, let’s say the proof exists and apply a DUI arrest by analogy:
     
     
     
    It’s not enough for policemen to stop you, make you blow in a tube and arrest you for drunk driving.  For a successful prosecution, the officer must observe the subject’s bad driving (probable cause) before conducting a traffic stop.  But that’s not enough to arrest.  After all, the driver could be suffering from a heart attack or diabetic shock.  It’s bad form to arrest a stroke victim for DUI.  So during the interview, the policeman asks for a driver license, registration, and proof of insurance.  As the driver retrieves those items, the policeman asks if the driver is sick, ill, injured, or under the care of a doctor.  An impaired driver will likely have trouble answering those questions while retrieving papers, demonstrating symptoms (poor coordination, slurred speech etc.) that are consistent with intoxication.  But that’s still not enough.  The driver is asked to exit the car and perform a field sobriety test.   
     
     
     
    Only when the officer has observed specific symptoms and ruled out sickness, illness, injury, and other factors (e.g. differential diagnosis) can he render an opinion that the driver is intoxicated.  At that point, the officer uses testing to corroborate his opinion.  In this way, the test is used to confirm the officer’s opinion.
     
     
     
    But HIV testing standards are far below that standard of what we require from policemen.  HIV testing is akin to a policeman telling a third party to tell them how fast someone is going and then writing them a ticket without seeing the car move.  If a policeman sees a car traveling at 30MPH and his RADAR reports a 90 MPH reading, the officer won’t write the ticket and will report a dysfunctional RADAR unit.  But if RADAR is used like HIV tests, the policeman simply cites drivers based upon what someone shooting RADAR from another location reports.
     
     
     
    With regard to HIV, HEP C, and other biological tests, doctors simply order a test. 
     
     
     
    MHRP and Walter Reed doctors routinely ignore package inserts that warn: “Do not use this kit as the sole basis of diagnosis of HIV-1 infection;” (Bio-Rad, Epitope/Organon, OraSure, Cambridge) and emphasize for all persons testing positive on both ELISA and WB: “Clinical correlation is indicated … to decide whether a diagnosis of HIV infection is accurate.” (Bio-Rad, Epitope/Organon).  And because “everybody does it” is the “medical standard of care”, they get away with it.  They’re “infectious disease” experts and we assume that they know what they’re doing.  Blood is drawn by unknown people and transported to a testing facility where other lab rats run tests that look for proteins that all of us are born with.  The only reason that everyone doesn’t flag HIV+ is because the test is titrated (diluted) so that only about 1/250 people are positive – an estimate that six CDC officials came up with in 1986 over two bottles of bourbon.
     
     
     
    In another high profile case in Atlanta this year, doctors all testified that the labs diagnosed our client, while all the Quest and LabCorp officials insisted that the doctors diagnosed him.  The Clayton County jury convicted our client, who was sentenced to ten years in prison – even though the record showed that our asymptomatic client was never diagnosed by anyone.
     
     
     
    As for antibodies, HIV tests don’t detect HIV or antibodies – they detect common proteins that the “experts” claim identify HIV – even though the same proteins are common among all human.  But even if we are to BELIEVE the HIV antibody theory, antibodies demonstrate a body’s ability to defend itself from infection.  The fact that I have antibodies from last year’s flu doesn’t mean that I am infected with the flu now.  And as I posted earlier, HIV discoverer Luc Montagnier’s admission is irrefutable: “We can be exposed to HIV many times without being chronically infected… our immune system will get rid of the virus within a few weeks if you have a good immune system…  People always think of drugs and vaccine… There’s no profit (in good nutrition)”.
     
     
    For those who want a better understanding of the slapstick pie-fight of virology, the documentary House of Numbers (2009) is a good start.

  19. Clark Baker says:

    Dr. Soona: Several years ago, OMSJ conducted a series of experiments using blood and cultured HIV.  We drew samples of my blood, spun it, and spiked it with the cultured HIV, which was easily found by using electron microscopy (EM). 
    These experiments proved that – if present – the HIV is visible in human blood.
    We then drew samples of blood from allegedly HIV+ patients, sending 5ml for viral load testing and the rest for EM.  We found that – even with viral loads of 3 million per ml – there was no evidence of HIV in the blood.
    Now, if we know that HIV is visible in the blood but doesn’t appear in HIV tests that include VLs 1 million+ using PCR, it’s clear that you can’t transmit what isn’t there through saliva, semen, or blood.  These are experiments that researchers like you would perform if they didn’t threaten the billion dollar industry that you work for.  Koch’s postulate would prove your theories.
    As for your NCBI documents, NONE of them establish when, where, why, what, and who proved that HIV 1) attacks cells and 2) causes AIDS.  But medical research reports are notorious unreliable.  As David Freeman explained:

    In this paper, John Ioannidis laid out a detailed mathematical proof that, assuming modest levels of researcher bias, typically imperfect research techniques, and the well-known tendency to focus on exciting rather than highly plausible theories, researchers will come up with wrong findings most of the time. Simply put, if you’re attracted to ideas that have a good chance of being wrong, and if you’re motivated to prove them right, and if you have a little wiggle room in how you assemble the evidence, you’ll probably succeed in proving wrong theories right. His model predicted, in different fields of medical research, rates of wrongness roughly corresponding to the observed rates at which findings were later convincingly refuted: 80 percent of non-randomized studies (by far the most common type) turn out to be wrong, as do 25 percent of supposedly gold-standard randomized trials, and as much as 10 percent of the platinum-standard large randomized trials. The article spelled out his belief that researchers were frequently manipulating data analyses, chasing career-advancing findings rather than good science, and even using the peer-review process—in which journals ask researchers to help decide which studies to publish—to suppress opposing views. “You can question some of the details of John’s calculations, but it’s hard to argue that the essential ideas aren’t absolutely correct,” says Doug Altman, an Oxford University researcher who directs the Centre for Statistics in Medicine.
    Still, Ioannidis anticipated that the community might shrug off his findings: sure, a lot of dubious research makes it into journals, but we researchers and physicians know to ignore it and focus on the good stuff, so what’s the big deal?  The other paper headed off that claim. He zoomed in on 49 of the most highly regarded research findings in medicine over the previous 13 years, as judged by the science community’s two standard measures: the papers had appeared in the journals most widely cited in research articles, and the 49 articles themselves were the most widely cited articles in these journals. These were articles that helped lead to the widespread popularity of treatments such as the use of hormone-replacement therapy for menopausal women, vitamin E to reduce the risk of heart disease, coronary stents to ward off heart attacks, and daily low-dose aspirin to control blood pressure and prevent heart attacks and strokes. Ioannidis was putting his contentions to the test not against run-of-the-mill research, or even merely well-accepted research, but against the absolute tip of the research pyramid. Of the 49 articles, 45 claimed to have uncovered effective interventions. Thirty-four of these claims had been retested, and 14 of these, or 41 percent, had been convincingly shown to be wrong or significantly exaggerated. If between a third and a half of the most acclaimed research in medicine was proving untrustworthy, the scope and impact of the problem were undeniable.

    Since 2009, the pharmaceutical industry has paid $22 billion to settle thousands of criminal and civil complaints related to the illegal marketing of drugs that kill or injure 2-4 million Americans, ANNUALLY – paying $2.5 billion in reported kickbacks and bribes to clinicians like these who promote the unnecessary use of deadly drugs for healthy patients.  The leading US HIV testing laboratories – Quest Diagnostics and LabCorp – have paid millions to settle criminal and civil complaints related to fraud and the use unapproved testing devices.  If tracked like diseases, medical errors, complications, and adverse drug reactions would rank as the third leading cause of death in the United States – below cancer and heart disease.
    Despite their white lab coats, virology has been involved in questionable acts since Tuskegee.  As the Father of Virology explained before his death in 1962:

    “(I)t’s against the law to do many things, but the law winks when a reputable man wants to do a scientific experiment.   For example, the criminal code of the City of New York holds that is a felony to inject a person with infectious material. Well, I tested out live yellow fever vaccine right on my ward in the Rockefeller Hospital. It was no secret, and I assure you that the people in the New York City Department of Health knew it was being done.  Unless the law winks occasionally, you have no progress in medicine.”

    OMSJ doesn’t wink.

  20. Jack McDay says:

    Interesting expose of the “Office of Medical and Scientific Justice” here:
    http://hivinnocencegrouptruth.com/
     
    It seems like a shady guy running this operation.

  21. Zachary D Spilman says:

    This is getting too far off-topic. Comments are now closed.