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.

7 Responses to “Answer and Reply in Gutierrez petition for reconsideration”

  1. ScottComstock says:

    It’s nteresting that the appellant cited to Fight Club of all things…

  2. anon says:

    Fight Club and Canadian Supreme Court citations make this is the running for most interesting CAAF reconsideration motion I recall.  FYI, for those who could not locate R v Cuerrier, check to see if you have access to Heinonline.  Terrific resource for legislative history, old US code/CFR, historical records, etc… 

  3. K FISCHER says:

    It would be really cool if C.A.A.F. promulgated the 9th rule of Fight Club in Guitierrez, which is don’t cite to Fight Club.

  4. Saul says:

    I served with General Knavery . I knew General Knavery . General Knavery was a friend of mine. Senator, you’re no General Knavery!

  5. Dwight Sullivan says:

    [Standard disclaimer:  What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    Today has been a good one for CAAFlog comments.  K Fischer’s 5:11 p.m. comment above and Passing By’s 2:21 p.m. comment in the Sauk oral argument thread were both laugh-out-loud funny.

  6. Bill Geraty says:

    The issue regarding the LIO 128 isn’t merely that the HIV status was not disclosed, but that that fact would have mattered to the other party in giving consent. I tried a case in which the “victim” of the assault testified at the 32 that he would have consented to the sex even if he had known that the accused was HIV positive.  (I know, that really surprised me too.) Establishing Consent (or lack thereof)is a fact specific determination. The Materiality of HIV status can’t and shouldn’t be assumed in these cases. You have to establish it through evidence.
    The underlying rationale for charging these cases as aggravated assaults was that the “death or grievous bodily harm” eliminated consent as an issue. The problem was in conducting the risk versus magnitude of harm analysis. Easy when HIV was a virtual death sentence — some risk, however small, was sufficient in light of that magnitude of harm. The problem comes (given advances in treatment through antiretroviral drugs) when the magnitude of the harm is by no means certain. How much should the risk to up? Arithmetically? Logarithmically? Exponentially?  What if the accused has an undetectable viral load, making the risk extremely remote? It makes a reasoned evaluation impossible to perform in any consistent way
    . As a simple assault consummated by a battery, thee case turns on whether there was consent. There may very well have been no meaningful consent here. But that should have to be established by legal and competent evidence. ..the reason this decision may be hard for many to follow is that most people make assumptions about the magnitude of the harm and the risk of transmission of HIV. The decision (and the decisions of the other jurisdictions), as forecast in US v Dacus, reflects the need to change the legal landscape to reflect the changes in the medical  and social landscapes. I hope the court reconsiders the assault consummated by a battery decision — not because it wasn’t one, but because the government wasn’t asked to prove the critical element at trial.

  7. Zachary D Spilman says:

    A couple of important points Bill Geraty

    As discussed in my argument preview,  the Government’s merits brief noted 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 (emphasis added). Of course, under the aggravated assault theory, consent is irrelevant. 

    At a glance, this testimony does seem to support convictions for the lesser included offense of assault consummated by a battery. The problem with such reasoning is that it depends on a post hoc rationalization. The witness testimony occurred in the cold forum of a court-martial, long after the sexual encounters at issue. One must wonder if they really felt that way during the passion of the moment (when they were clearly willing to assume sexual risk). This is a factual sufficiency issue, if nothing else. There’s also the matter of the defense of mistake of fact.

    But more significant is the issue of how far the rule apparent in CAAF’s decision (and clearly embraced by the Government) goes. If failure to disclose an HIV diagnosis renders clear and unambiguous indicators of consent invalid (not because of the risk of death – which would make the failure to disclose an aggravated assault for which there can be no consent – but rather just because), then what other failures to disclose will have a similar effect? Presumably there are others, since CAAF explicitly rejected a sui generis (“of it’s own kind” / “unique”) standard in HIV exposure cases. But how can anyone know what they are?

    That’s why it’s so significant that this is a legal theory not presented at trial or before the CCA, that CAAF’s opinion doesn’t address fraud, and that CAAF’s opinion doesn’t address well-settled principles of consent. The court’s opinion settled the law with respect to aggravated assault prosecutions, but it significant unsettled it for assault consummated by a battery.