Lamar Forbes v. John Phelan, 153 F.4th 73

Background

Lamar Forbes, a Navy sailor who tested HIV-positive in 2012, had unprotected sex with four women between 2013–2015 without disclosing his status; none contracted HIV.
Forbes pleaded guilty at a general court-martial to one Article 107 specification, three Article 120 sexual-assault specifications, and one Article 134 specification (assimilating Virginia’s infected sexual battery statute); sentenced to 8 years, reduction to E-1, dishonorable discharge.
The Navy-Marine Corps Court of Criminal Appeals (NMCCA) and the Court of Appeals for the Armed Forces (CAAF) affirmed, applying precedent (notably United States v. Gutierrez) that nondisclosure of HIV vitiates informed consent and constitutes an offensive touching/bodily harm.
Years later, while on supervised release, Forbes filed a 28 U.S.C. § 2241 habeas petition in D.D.C. raising for the first time claims he styles as jurisdictional (that the UCMJ did not reach his conduct), assimilation/preemption challenges to the Article 134 conviction, and an ex post facto due-process claim.
The district court held those claims were non-jurisdictional, that Forbes procedurally defaulted issues not raised in the military courts, and that the military courts had given full and fair consideration to the preserved Article 120 challenge.
The D.C. Circuit affirmed: the purportedly jurisdictional claims are merits challenges, standard procedural-default rules apply, the assimilation/preemption and ex post facto claims were forfeited, and the military courts fairly considered Forbes’s preserved arguments.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court-martial lacked subject-matter jurisdiction over Article 120 because the UCMJ does not criminalize nondisclosure of HIV status	Forbes: failure to disclose minimally contagious HIV does not satisfy Article 120’s "bodily harm"/"offensive touching" elements, so military court lacked jurisdiction	Government: charging an Article 120 violation identifies a UCMJ offense; any dispute over whether the facts satisfy the elements goes to the merits, not jurisdiction	Non-jurisdictional; challenge is a merits/specification sufficiency issue. Military courts fairly considered the claim; affirmed.
Whether the Article 134 conviction (assimilating Virginia law) was invalid because the Assimilative Crimes Act did not apply or federal UCMJ preemption bars its use	Forbes: improper assimilation (or preemption) means no federal offense was charged, so no jurisdiction or conviction	Government: citation of Article 134 and the ACA was sufficient for jurisdiction; assimilation/preemption arguments challenge the sufficiency of the specification and were not raised below	Non-jurisdictional; assimilation and preemption arguments are merits defenses and were procedurally defaulted.
Whether the military courts’ interpretation of Article 120 expanded criminal liability retroactively in violation of the Ex Post Facto Clause / due process	Forbes: applying Article 120 to nondisclosure of HIV was an unforeseeable expansion of criminal liability (not raised before military courts)	Government: prior Article 128 authority put service members on notice; Bouie standard not met; claim is forfeited	Procedurally defaulted for failure to raise in military courts; alternatively, fails Bouie as not "unexpected and indefensible."

Key Cases Cited

United States v. Jabr, 4 F.4th 97 (D.C. Cir. 2021) (distinguishing jurisdictional inquiry from merits of whether charged conduct constitutes offense)
Cotton v. United States, 535 U.S. 625 (2002) (defective specification/indictment generally affects merits, not jurisdiction)
Solorio v. United States, 483 U.S. 435 (1987) (military jurisdiction requires accused was service member at time of offense)
United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (failure to disclose HIV vitiates informed consent; offensive touching under Article 128)
United States v. Forbes, 77 M.J. 765 (N-M Ct. Crim. App. 2018) (NMCCA opinion applying Gutierrez logic to Article 120)
United States v. Forbes, 78 M.J. 279 (C.A.A.F. 2019) (CAAF affirmance applying Gutierrez to Article 120)
Lewis v. United States, 523 U.S. 155 (1998) (Assimilative Crimes Act limits and effect on federal prosecution; assimilation challenge is not automatically jurisdictional)
Bouie v. City of Columbia, 378 U.S. 347 (1964) (judicial enlargement of criminal liability violates due process when unexpected and indefensible)
Burns v. Wilson, 346 U.S. 137 (1953) (civil courts’ limited function: ensure military gave fair consideration to claims)
Kendall v. Army Bd. for Corr. of Mil. Records, 996 F.2d 362 (D.C. Cir. 1993) (applying procedural-default rules in collateral attacks on court-martial)