CAAFlog » September 2014 Term » United States v. Gutierrez

Coming in at number seven on our list was the CAAF’s decision this year in United States v. Gutierrez (CAAFlog case page). This case was notable for several reasons. First, it overturned what appeared to be settled case law in the area of HIV-positive service members who failed to disclose their status to their sexual partners. Since the case of United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), it was understood that a service member with HIV who failed to inform a sexual partner of his HIV status could be charged with aggravated assault. In determining that sexual intercourse with an HIV-positive person constituted a means likely to cause death or grievous bodily harm, the Joseph court found that the focus “was 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.” Id. at 397. To explain this concept, the Joseph court gave the analogy of an aggravated assault by firing a weapon at someone:

If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.”

Id. at 396-397.

In Gutierrez, the CAAF refined the focus the on the word “likely” in the context of HIV cases and addressed the issue of whether the proverbial “hitting the victim” was more than a remote possibility. For the sexual acts alleged in Gutierrez, the CAAF found that the risk of infection was so small that it was not more than a “remote possibility” and therefore not “likely” to produce death or grievous bodily harm. The Court discussed the expert testimony in the case which established that the risk of infection of HIV from unprotected oral sex was almost zero, that the risk of infection in protected vaginal intercourse was a “remote possibility,” and that the risk of infection in unprotected vaginal intercourse was 1 in 500, which the Court also deemed to be “not likely” to occur. Therefore, the Court found that the evidence at trial was legally insufficient to find the accused guilty of aggravated assault.

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Last term, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF found the appellant’s aggravated assault conviction (for engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient because there was no more than a 1-in-500 chance that the appellant would infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery.

The court remanded the case to the Air Force CCA for reassessment of the sentence or a sentence rehearing. In a decision released last week, the CCA reassesses the sentence, reducing the confinement from eight years to six and upgrading the dishonorable discharge to a bad-conduct discharge. United States v. Gutierrez, No. 37913 (A.F. Ct. Crim. App. Nov. 23, 2015) (link to slip op.). The CCA finds no error in the post-trial delay in the case (the sentence was adjudged in January 2011) and also that any delay was harmless.

CAAF’s daily journal for April 9 reflects this entry in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 13-0522/AF. U.S. v. David J.A. Gutierrez. CCA 37913.  Appellant’s petition for reconsideration of the Court’s opinion, 74 M.J. 61 (C.A.A.F. 2015), is denied.

Here is the Government’s Answer to the petition for reconsideration in United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (C.A.A.F. Feb. 23, 2015) (CAAFlog case page).

And here is Appellant’s Reply to the Government’s Answer.

Disclaimer: I assisted in drafting the Reply and appear among the counsel for Appellant.

In a petition filed today (available here), the appellant in the Air Force case of United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (C.A.A.F. Feb. 23, 2015) (CAAFlog case page) (link to opinion analysis), seeks reconsideration from CAAF of its decision affirming convictions of assault consummated by a battery as lesser included offenses of aggravated assault.

The 10-page petition (the PDF includes over 100 pages of Canadian law in two appendices) seeks reconsideration for three reasons:

I. Appellant now stands convicted of offenses based on a legal theory not presented at trial, or on review at the court below, and this court’s decision misapprehended the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances.

II. The court’s decision overlooks well-settled precedent involving consent obtained by fraud.

III. The court’s decision misapprehends well-settled principles of consent.

Disclaimer: I assisted in drafting this petition and appear as counsel for the petitioner.

CAAF decided the Air Force case of United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

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 related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

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).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

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Audio of today’s oral arguments is available at the following links:

United States v. Buford, No. 14-6010/AF (CAAFlog case page): Oral argument audio.

United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page): Oral argument audio.

Additionally, audio of the December 3, 2014, oral argument at the NMCCA in United States v. Henderson (TWIMJ post) is available here.

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.

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This past week CAAF granted review in two cases and ordered briefs on a petition for extraordinary relief.

First, on Tuesday, July 29, CAAF granted review in another ultimate offense doctrine case: United States v. Amaya, No. 14-0558/AR.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF DISOBEYING A LAWFUL ORDER OF A SUPERIOR COMMISSIONED OFFICER.

Last October, in a post titled Is the “ultimate offense doctrine” making a comeback?, I analyzed the Army CCA’s unpublished opinion in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013), in which it applied the doctrine to reverse a guilty plea. A few months later I wrote: The Army CCA slows the return of the “ultimate offense doctrine”, analyzing the CCA’s unpublished decision in United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013), where the court rejected the doctrine. The CCA also reconsidered its decision in Phillips, reversing course in a published decision, United States v. Phillips, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.), and prompting me to write: It was fun while it lasted… the Army CCA puts an end to the comeback of theultimate offense doctrine.

CAAF then granted review in Phillips (case No. 14-0199/AR, grant discussed here) and in a trailer (United States v. Nemeth, No. 14-0491/AR, grant discussed here). The grant in Amaya brings the total number of granted ultimate offense doctrine cases at CAAF to three. The Army CCA’s opinion in Amaya is available here, but it does not address the ultimate offense doctrine.

Next, on Thursday, July 31, CAAF granted review in United States v. Gutierrez, No. 13-0522/AF:

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 URSUANT TO UNITED STATES V. MORENO, 63 M.J. 129 (C.A.A.F. 2006).

Briefs will be filed under Rule 25.

The CCA’s latest opinion in this case is available here. This is the second trip to CAAF for this case. The court granted review of the first two issues last September (discussed here), but summarily remanded the case to the CCA in December (discussed here) for consideration of the composition of the panel that considered the case. If you don’t know what this issue is about, you need to check out the case page for United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page).

CAAF’s grant of the speedy trial issue in Gutierrez returns the AFCCA’s delays – part of our #9 military justice story of 2013 – to CAAF in the wake of United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), in which the court found no prejudice. The appointment issue is also returning to CAAF in the upcoming term, in United States v. Jones, No. 14-0057/AF (grant discussed here), in which the court will consider the application of de facto officer doctrine (that it rejected in Janssen)

Finally, CAAF issued a really interesting order on Thursday, July 31, on a petition for extraordinary relief:

No. 14-8014/AF. U.S. v. Mark K. ARNESS. Crim. App. Dkt. No. 2013-30. On consideration of the writ-appeal petition filed by Appellant for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the Judge Advocate General of the Air Force appoint counsel to represent Appellant, and that both parties submit briefs on the following issue:

WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS HAD JURISDICTION TO ENTERTAIN A WRIT OF ERROR CORAM NOBIS WHERE THERE WAS NO STATUTORY JURISDICTION UNDER ARTICLE 66(b)(1), UCMJ, ON THE UNDERLYING CONVICTION AND THE CASE WAS NOT REFERRED TO THE COURT OF CRIMINAL APPEALS BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 69(d)(1), UCMJ, AND WHERE THE COURT OF CRIMINAL APPEALS RELIED ON POTENTIAL JURISDICTION UNDER ARTICLE 69(d), UCMJ, AS ITS BASIS FOR ENTERTAINING THE WRIT (CITING DEW V. UNITED STATES, 48 M.J. 639 (ARMY CT. CRIM. APP. 1998)).

Briefs will be filed with the Court by August 29, 2014.

The AFCCA’s opinion is available here. The appellant is a Lieutenant Colonel who was convicted by a general court-martial of 14 specifications of unauthorized absence, 10 specifications of making false official statements, and 2 specifications of conduct unbecoming, in violation of Articles 86, 107, and 133, UCMJ. He was sentenced to confinement for 11 months and a reprimand. The sentence was below the threshold for automatic review by the Air Force CCA under Article 66(b), and so it was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69(a). The JAG found no error and then denied the appellant’s request for reconsideration. The appellant then filed a writ petition with the AFCCA, asserting 13 errors. The court found that it had jurisdiction to consider the petition, but denied relief:

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s sentence at his court-martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, The Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advocate General under this section” in a court-martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo, 556 U.S. at 913. Since we could have properly reviewed the original proceeding under Article 69, UCMJ, we adopt the position of our fellow service court that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. See Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is not entitled to relief.

United States v. Arness,  No. 2013-30, slip op. at 3 (A.F.Ct.Crim.App. Mar. 11, 2014). Presumably the appellant didn’t petition CAAF just to question the CCA’s jurisdiction to consider his 13 assertions of error.

CAAF granted review in two cases this term involving a “Gutierrez.” On was an Air Force case, while the other is from the Army. As discussed in this post and its comments, the Air Force case was summarily remanded this week in connection with the continuing litigation over the improper appointment of a judge to the AFCCA. CAAF’s daily journal now reflects the remand:

No. 13-0522/AF.  U.S. v. David J.A. GUTIERREZ.  CCA 37913.  On further consideration of this case, it is ordered that said petition is granted on the following additional issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED APPELLANT’S CASE WAS PROPERLY CONSTITUTED.

The decision of the United States Air Force Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012).  The Hearing Notice issued on November 6, 2013, is hereby rescinded.

As the case will not go to oral argument in this trip to CAAF, I’m deleting the CAAFlog case page and removing it from the CAAF Cases dropdown list at the top of our site.

On Tuesday CAAF granted review and ordered briefs in six five cases:

No. 07-0725/MC.  U.S. v. Jonathan E. LEE.  CCA 200600543.  Review granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX OFFENDER REGISTRY.

Lee is a long-running Marine Corps case (and is seen by many as the precipitating event for the creation of the Marine Corps Defense Services Organization due to a conflict of interest issue that was the topic of this McClatchy article). Normally I don’t create a case page until I write an argument preview, but we’ve covered the Lee case extensively, so it gets a case page now (CAAFlog case page). See the case page for links to the long appellate history.

No. 13-0442/MC.  U.S. v. Charles C. HORNBACK.  CCA 201200241.  Review granted on the following issue:

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING NO MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO A FAIR TRIAL AFTER IT ASSUMED, WITHOUT DECIDING, THAT TRIAL COUNSEL’S ACTIONS AMOUNTED TO MISCONDUCT, AND WHETHER THE MILITARY JUDGE’S CURATIVE INSTRUCTIONS SUFFICIENTLY ADDRESSED THE CUMULATIVE NATURE OF SUCH CONDUCT AS WELL AS ANY CORRESPONDING PREJUDICE IN LIGHT OF THE FACTORS IDENTIFIED IN UNITED STATES v. FLETCHER, 62 M.J. 175 (C.A.A.F. 2005).

The NMCCA’s opinion in Hornback is here.

No. 13-0522/AF.  U.S. v. David J.A. GUTIERREZ.  CCA 37913.  Review granted on the following issues:

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN RIEVOUS BODILY HARM.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

The AFCCA’s opinion in Gutierrez is here.

No. 13-0565/AR.  U.S. v. Christopher R. KEARNS.  CCA 20110348.  Review granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT HAD THE INTENT TO ENGAGE IN CRIMINAL SEXUAL CONDUCT WITH KO, A MINOR, WHEN HE FACILITATED KO’S TRAVEL IN INTERSTATE COMMERCE AND WAS FOUND GUILTY IN SPECIFICATION 1 OF CHARGE III OF VIOLATING 18 U.S.C. SECTION 2423(a).

The Army CCA’s published opinion in Kearns (72 M.J. 586) is here.

No. 13-0601/AF.  U.S. v. Korey J. TALKINGTON.  CCA 37785.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS THAT CONSIDERATION OF SEX OFFENDER REGISTRATION IS “NOT A MATTER BEFORE THEM” AND “FRAUGHT WITH PROBLEMS.”

The Air Force CCA’s opinion in Talkington is here.