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.