United States v. Gutierrez
2015 CAAF LEXIS 157
| C.A.A.F. | 2015Background
- Appellant Gutierrez, a USAF technical sergeant, knew he was HIV-positive and participated in off-base swingers events with his wife; he had been ordered by his command to inform partners and use condoms but did not always do so.
- He was tried by general court-martial and convicted of aggravated assault (multiple specifications covering protected/unprotected oral and vaginal sex), adultery, and related offenses; sentence included confinement, dishonorable discharge, forfeiture, and reduction.
- Government medical expert testified transmission risks: protected oral sex = zero; unprotected oral = "almost zero"; protected vaginal (proper condom use) ≈ 97–98% effective; unprotected vaginal estimated between 1–20 per 10,000 (high-end ≈ 1-in-500).
- The Air Force CCA affirmed the aggravated-assault convictions relying on United States v. Joseph and similar precedents; this Court granted review, addressed sufficiency for aggravated assault based on "likely to produce death or grievous bodily harm," and remanded for consideration of an improper CCA appointment and appellate delay.
- The Court examined whether the risk of HIV transmission itself was "likely" (not merely the severity if transmitted) and whether prior HIV-case standards that required only a showing beyond "fanciful, speculative, or remote" fit the statutory term "likely."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved aggravated assault (means "likely to produce death or grievous bodily harm") | Government: severity of HIV if transmitted makes exposure sufficient; Joseph standard—risk need only be more than fanciful/remote | Gutierrez: expert risk estimates (including 1-in-500) are too low; transmission not "likely" | Reversed aggravated-assault convictions; risk of transmission must be "likely" in ordinary meaning; prior Joseph standard overruled |
| Whether protected vaginal sex without disclosure can be aggravated assault | Government: condom not a complete defense under Klauck; exposure still creates risk | Gutierrez: condom efficacy (97–98%) makes transmission only remotely possible | Conviction for aggravated assault by protected vaginal sex legally insufficient; Klauck overruled |
| Whether unprotected vaginal sex without disclosure can be aggravated assault | Government: even low-probability transmission can qualify under Joseph | Gutierrez: 1-in-500 is not "likely" in plain English | Conviction for aggravated assault by unprotected vaginal sex legally insufficient (1-in-500 not "likely") |
| Remedy / lesser-included offenses and other charges (adultery, delay) | Government urged affirmance of attempted aggravated assault or other remedies | Gutierrez argued insufficiency and raised due-process/appellate delay claims; also challenged aggravated assault sufficiency | Attempt not proven (no specific intent); affirmed lesser included offense: assault consummated by battery; adultery conviction affirmed; remand for sentence reassessment and consideration of appellate delay (Moreno) |
Key Cases Cited
- United States v. Joseph, 37 M.J. 392 (C.M.A. 1993) (previous HIV-exposure standard that risk need only be more than fanciful or remote; expressly overruled)
- United States v. Klauck, 47 M.J. 24 (C.A.A.F. 1997) (held condom use is not a defense; court here expressly overruled as applied)
- United States v. Weatherspoon, 49 M.J. 209 (C.A.A.F. 1998) (described prior lower probability standard in HIV-exposure cases)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal-sufficiency standard: whether any rational trier of fact could find essential elements beyond a reasonable doubt)
- United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (authority to affirm lesser-included offenses on appeal)
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (appellate delay/due-process framework)