Petition for Writ of Certiorari — Johnson v. United States

90-61

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

NATHANIEL JOHNSON, JR.,

Petitioner

Vs

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

JULY 1990 Attorneys for Petitioner

QUESTION PRESENTED

Whether the charge of aggravated assault, as charged

under Article 128, Uniform Code of Military Justice, is

unconstitutionally vague as applied to petitioner, when

the aggravation element is premised upon the petitioner’s

medical condition of being infected with the Human Im-

munodeficiency Virus (HIV).

(i)

TABLE OF CONTENTS

Opinions Below ...................... salaes lad akcaiahanticesdateceadeineres

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Reasons for Granting the Writ .....................................-...--

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TABLE OF AUTHORITIES

Cases:

Parker v. Levy, 417 U.S. 783 (1974) ......................

United States v. Harris, 347 U.S. 612 (1954) ........

Kolender v. Lawson, 461 U.S. 352 (1983) ..............

United States v. Mazurie, 419 U.S. 544 (1975) ........

United States v. Powell, 423 U.S. 87 (1975) -..........

United States v. Johnson, 30 M.J. 53 (C.M.A.

a sicasliunbebbbhlonictnnnensunase

United States v. Johnson, 27 M.J. 798 (A.F.C.M.R.

a lacis dchcienphnnvenaioe

United States v. Kazenbach, 824 F.2d 649 (8th Cir.

8 SG Ga a

United States v. Moore, 669 F.Supp. 289 (D. Minn.

EERE COREE eo OO

Constitutional, Statutory and Regulatory Authorities:

United States Constitution Amendment V ......... ret

10 U.S.C. § 867(h) (Supp. III 1985) _.........................

28 U.S.C. § 1259(3) (Supp. ITI 1985) -.......................

Article 128, U.C.M.J., M.C.M. (1984) ........................

Miscellaneous:

Anatomy of an AIDS Case: Deadly Disease as an

Aspect of Deadly Crime, Army Lawyer, Jan.

(iii)

i e DO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

NATHANIEL JOHNSON, JR.,

. Petitioner

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Nathaniel Johnson, Jr., respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Military Appeals en-

tered in his case on April 12, 1990.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review, is reported at 27 M.J. 798 (A.F.C.M.R.

1988). The opinion of the United States Court of Mili-

tary Appeals is reported at 30 M.J. 53 (C.M.A. 1990).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. $ 1259(3) and 10 U.S.C. §$ 867(h) (Supp. III

(1)

2

1985}. The judgment of the Court of Military Appeals

was entered on April 12, 1990.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitu-

tion provides:

No person shall be . . . deprived of life, liberty, or

property without due process of law...

STATEMENT OF THE CASE

Petitioner was tried by general court-martial in Feb-

ruary 1988, at McChord Air Force Base, Washington.

He was convicted of consensual sodomy by fellatio, and

of aggravated assault and attempted sodomy, both pre-

mised on an act of attempted consensual anal intercourse.

He was sentenced to a dishonorable discharge, confine-

ment for 10 years, total forfeitures and reduction to air-

man basic. The convening authority approved these re-

sults on April 20, 1988. The United States Air Force

Court of Military Review dismissed the charge of at-

tempted consensual sodomy, finding it multiplicious for

findings with the charge of aggravated assault. The

Court then affirmed the findings and modified the sen-

tence to a dishonorable discharge, six years confinement,

total forfeitures and reduction to E-1.

Petitioner was screened for the Human Immunodefic-

iency Virus (HIV) in July 1987. He tested positive for

the virus and was sent to Wilford Hall Medical Center

for medical evaluation. He was determined to be in fact

infected with the disease, but displayed no abnormalities

of his immune system.

During his stay at Wilford Hall, petitioner was in-

structed on the disease and on means of safe sex or low

risk sex/ behavior. Patients at Wilford Hall are not told

they must abstain from sexual activity. Rather, they are

instructed on the use of condoms, and other safe sex

a

3

practices. United States v. Johnson, 27 M.J. 798, 801

(A.F.C.M.R. 1988). Petitioner acknowledged his under-

standing of his responsibility to protect others from pos-

sible transmission on a pass privileges form for HIV

patients. Jd.

Petitioner remained a patient at Wilford Hall until

October 4, 1987. On September 23, 1987, the Air Force

implemented a revised Department of Defense policy con-

cerning HIV infected persons. This policy directive re-

quired that each HIV infected military member be or-

dered by his immediate commander to follow the preven-

tive medical counselings and informed that their failure

to do so may result in administrative or disciplinary ac-

tion. Petitioner was never given such an order, nor in-

formed that his failure to follow his medical counselings

might result in disciplinary actions against him. Jd.

On December 13, 1987, petition met JPH, a 17 year

old male. The two went to petitioner’s dormitory room

and proceeded to drink. The two began to kiss, and even-

tually petitioner performed fellatio on JPH. He then at-

tempted to place his finger in JPH’s anus. JPH hold pe-

titioner to stop, which petitioner did. JPH claimed he

then felt the accused’s unsheathed, flaccid penis between

his legs, although no attempt was made by petitioner to

insert his penis into JPH’s anus. JPH became sick, and

eventually, petitioner drove JPH to his home.

4

REASONS FOR GRANTING THE WRIT

An accused is entitled to a fair notice of the law.

Failure to define a criminal offense with sufficient defini-

tiveness that ordinary people can understand what con-

duct is prohibited results in a denial of due process. See,

Kolender v. Lawson, 461 U.S. 352 (1983). Whether or

not a criminal statute is unconstitutionally vague must

be judged in light of the conduct that is charged to be

violative of the statute. United States v. Mazurie, 419

U.S. 544, 550 (1975); See, United States v. Powell, 423

U.S. 87 (1975). Void for vagueness simply means that

criminal responsibility should not attach where one could

not reasonably understand that his contemplated conduct

is forbidden. United States v. Harris, 347 U.S. 612, 617

(1954) ; Parker v. Levy, 417 U.S. 78, 747 (1974).

In the present case, petitioner’s act was that of engag-

ing in consensual homosexual activity. Certainly he was

provided adequate notice that he could be held criminally

liable for his acts of consensual sodomy, as was noted by

the United States Court of Military Appeals in their

opinion below. United States v. Johnson, 30 M.J. 53, 56

(C.M.A. 1990). The Court, however, went one step fur-

ther and determined that this notice, combined with peti-

tioner’s awareness of his being infected with HIV, pro-

vided him adequate notice that this conduct could make

him additionally vulnerable to the offense of aggravated

assault.’

The elements of aggravated assault under Article 128,

Uniform Code of Military Justice, are:

(1) that the accused attempted to do, offered to do, or

did bodily harm to a certain person;

1 Note, however, Chief Judge Everett's concurring opinion, wherein

he suggests the preferrable option in a case such as this would be to

affirm a finding of attempted sodomy, and then consider the HIV

infection as a factor in aggravation of that offense. United States

v. Johnson, 30 M.J. 53, 58 (C.M.A. 1990). (C.J. Everett, concurring).

5

(2) that the accused did so with a certain weapon,

means or force;

(3) that the attempt, offer or bodily harm was done

with unlawful force or violence;

(4) that the weapon, means, or force was used in a

manner likely to produce death or grievous bodily harm.

Although the elements of aggravated assault are

clearly stated, and Article 128 is not challenged here as

unconstitutionally vague on its face, when the “means”

of the attempted bodily harm is the possible transmission

of a virus, such as HIV, Article 128 becomes unintel-

ligible regarding the conduct it seeks to proscribe.

In her article, Anatomy of an AIDS Case: Deadly

Disease as an Aspect of Deadly Crime, Captain Wells-

Petry begins her attempt to justify charging AIDS-

related misconduct under Article 128 by stating that we

must view the sexual conduct “as though under a micro-

scope.” Wells-Petry, Anatomy of an AIDS Case: Deadly

Disease as an Aspect of Deadly Crime, Army Lawyer,

January 1988, at 23. Even Judge Kast] admits that as-

sault by AIDS virus appears novel and must be analyzed

in some detail. United States v. Johnson, 27 MJ. 798,

802 (A.F.C.M.R. 1988). We must stretch far beyond

our present legal familiarity with Article 128 terminology

of “bodily harm”, “grievous bodily harm” and “means

or force likely” in an effort to plead an AIDS-related

case under Article 128. The offensive touching for

“bodily harm” is no longer the sexual touching, but

rather, placing the HIV at the door of the victim’s im-

mune system. The “grievous bodily harm” must then be

the transmission of the virus into the victim's blood-

stream. The “means” is the HIV which the carrier may

transmit through unprotected sexual activity, although

the experts are unable to provide any clear idea as to the

likelihood of transmission. When experts, courts and leg-

islatures cannot define a crime without confronting the

6

difficulties faced in applying Article 128 to AIDS-related

conduct, then neither should petitioner be expected to do

so. The need to apply such a microscopic and detailed

analysis in order to creatively fit AIDS-related miscon-

duct under Article 128, clearly denies him or any HIV

carrier of fair notice that his conduct could make him

criminally liable under this particular offense.

This is not to say that HIV-related offenses could

never be properly charged as aggravated assault. If an

HIV infected individual bites another, with the intention

of using his virus to harm the individual by transmitting

the virus to his victim, it is reasonable to assume that

he is on notice that his conduct is forbidden under Article

128. But where there is no such intentional attempt to

use one’s own medical condition to injure another, are

we not simply holding a contagious person criminally re-

sponsible for any action on their part which may pos-

sibly result in the transmittal of their disease? The of-

fense of aggravated assault was never intended nor does

it provide adequate notice that any transmission of one’s

contagious condition, regardless of intention, will result

in criminal liability.

CONCLUSION

Our society is clearly inflamed with hysteria over the

HIV epidemic. This often results in a callous indiffer-

ence or overt hostility towards persons infected with

HIV. However, we cannot allow our legal system to be

improperly used as a tool for the further prosecution of

HIV carriers. Although certain behaviors by HIV in-

fected persons may appropriately fall under specific

criminal sanctions, our judicial system should not turn

a blind eye to the requirements of proof so as to ardu-

ously fit HIV conduct into an ill-fitting, inappropriate of-

*Cf., United States v. Moore, 669 F.Supp. 289 (D. Minn. 1987),

aff'd, 846 F.2d 1163 (8th Cir. 1988); United States v. Kazenbach,

824 F.2d 649 (8th Cir. 1987).

7

fense, for which inadequate notice is given, solely for the

purpose of increasing the amount of punishment one can

receive.

Therefore, this petition for a writ of certiorari should

be granted.

Respectfully submitted,

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

JULY 1990 Attorneys for Petitioner

APPENDICES

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 61,753

ACM 26812

UNITED STATES,

* Appellee,

NATHANIEL JOHNSON, JR., Sergeant, U.S. Air Force,

Appellant.

April 12, 1990

For Appellant: Major Lynne H. Wetzell (argued);

Colonel Richard F. O’Hair (on brief).

For Appellee: Major Terry J. Petrie (argued); Colo-

nel Joe R. Lamport (on brief); Colonel Robert E. Gio-

vagnont.

Opinion of the Court

COX, Judge:

Appellant was tried by general court-martial before a

miiitary judge alone for knowingly exposing a 17-year-

old male to the Human Immunodeficiency Virus (HIV).

It was established at trial that HIV is the disease-

causing, viral agent in the incurable, fatal illness called

AIDS (Acquired Immunity Deficiency Syndrome). Af-

ter mixed pleas, he was found guilty of attempted con-

sensual sodomy, consensual sodomy, and assault with a

means likely to produce death or grievous bodily harm,

to wit: attempted anal intercourse while knowingly in-

2a

fected with HIV, in violation of Articles 80, 125, and

128, Uniform Code of Military Justice, 10 USC §§ 880,

925, and 928, respectively. He was sentenced to confine-

ment for 10 years, total forfeitures, reduction to E-1, and

dishonorable discharge. The convening authority approved

the sentence as adjudged. The Court of Military Review

approved the findings, but reduced the confinement to 6

years. 27 MJ 798, 805 (1988).'

After reviewing appellant’s supplement to his petition,

this Court specified two issues for consideration:

I

WHETHER A SPECIFICATION ALLEGING AG-

GRAVATED ASSAULT WITH A MEANS LIKELY

TO PRODUCE DEATH OR GREVIOUS BODILY

HARM, TO WIT: THE HUMAN IMMUNODE-

FICIENCY VIRUS, ALLEGES AN OFFENSE

UNDER THE UNIFORM CODE OF MILITARY

JUSTICE.

II

WHETHER THE EVIDENCE IS SUFFICIENT

TO SUSTAIN A VALID CONVICTION IN THE

PRESENT CASE.

In September 1987, while attached to McChord Air

Force Base, Washington, appellant learned that he had

1 The Court of Military Review found attempted anal sodomy and

aggravated assault by means of the AIDS virus (Charges I and III)

multiplicious for findings, ‘‘reason[ing] that the accused’s criminal

conduct is most accurately reflected by Charge III,”’ which “carries

a lesser maximum punishment than the alternative in Charge I.”

Charges I and its specification were dismissed. 27 MJ 798, 804-05

(AFCMR 1988). “[T]he correct maximum [confinement] available”

here “was eight years—five years under Charge II and three years

under Charge III.” We express no opinion on the correctness of this

conclusion. Reassessing the sentence, the court found “appropriate

only so much of the sentence as extend[ed] to a dishonorable dis-

charge, total forfeitures, reduction to airman basic, and six years

confinement.” Jd. at 805.

3a

tested positive for HIV. He was sent to Wilford Hall

Medical Center, Lackland Air Force Base, Texas, for

evaluation. Appellant’s out-patient medical treatment in-

cluded extensive counseling, and he was provided with

information regarding the dangers of transmitting HIV.

He then returned to McChord AFB.

On the evening of December 13th, while driving in

downtown Tacoma, Washington, appellant met JPH, a

17-year-old male, and offered him a ride home. During

the drive, appellant and JPH agreed to buy beer and re-

turn to appellant’s barracks room at the base.

Once in appellant’s room, JPH drank several beers as

well as a number of mixed drinks made with bourbon.

Appellant and JPH engaged in petting and kissing, and

appellant eventually performed consensual fellatio on

JPH. Appellant then attempted to insert his finger into

JPH’s anus, but JPH objected; appellant stopped.* At

that point, JPH was very intoxicated, so much so that he

vomited three times. Appellant then laid on top of and

beside JPH, and he “just laid... [his penis] around”

JPH’s anus. Appellant admitted that it was his original

intent to have anal intercourse with JPH, but he claimed

he never attempted to do so. In appellant’s own words,

after JPH vomited, appellant “lost interest.”” JPH agreed

that appellant never actually tried to penetrate his anus

with his penis.* JPH testified that appellant was nov

wearing a condom, but appellant claimed that he was.

Appellant and JPH apparently left the barracks room or

amicable terms, although JPH reported the episode to

authorities the next day. JPH testified that if he had

known appellant was infected with HIV, he never would

have consented to any contact with him.

* The record indicates that appellant engaged in other sexual acts

with JPH, and that he had been advised that, although such prac-

tices did not constitute a high risk of transmitting the AIDS virus,

they were not considered “safe sex.”

3 By both parties’ account, appellant never attained full erection.

4a

Lieutenant Colonel Richard E. Winn, U.S. Air Force

Medical Corps, testified extensively as a medical expert

for the Government. Dr. Winn described in detail how

the Human Immunodeficiency Virus is transmitted. Ac-

cording to Dr. Winn, there is up to a 35 percent prob-

ability that an individual who tests positive for HIV will

develop AIDS. In turn, the mortality rate for those test-

ing positive for AIDS is presently 50 percent.* Dr. Winn

also stated that the most dangerous transmission of HIV

occurs through intravenous drug use and unprotected

sexual intercourse, both heterosexual and homosexual. He

indicated that the risk of transmission is increased “if

one participates in anal intercourse” or if either of the

partners “have genital ulcers, or ulcerations, or tears.”

Dr. Winn did testify that physical contact such as ac-

tually occurred in this case is “unlikely” to cause trans-

mission of the AIDS virus.

Based upon this evidence, the military judge found

that. appellant had committed an assault with means

likely to produce death or grievous bodily harm. Through

special findings pertinent to Charge III and its specifica-

tion, the military judge stated:

[S] pecifically ... the accused attempted to have anal

intercourse with ... |JPH]. The accused was in-

fected with the Human Immunodeficiency Virus at

the time of the attempt ... , and he knew that he

was so infected. I [the military judge] did not be-

lieve the accused’s testimony that he used a condom.

[T]he accused attempted with unlawful force or vio-

lence t6 do bodily harm to... {[JPH] with the spe-

4 Other experts project “that 95% to 99% of those persons in-

fected with HIV will develop the AIDS disease eventually.” Sinkfield

and Houser, AJDS and The Criminal Justice System,” 10 Journal

of Legal Medicine 103, 105 n.7 (No. 1 1989). While statistics such

as these highlight the dangers of the virus if it is transmitted,

aggravated assault still requires that the accused use or attempt to

use the means in a manner likely to cause death or grievous bodily

harm.

5a

cific intent to do bodily harm. The accused’s acts in

lying naked on the back of ... [JPH] with his penis

at or near the anus... amounted to more than mere

preparation and were done with the apparent pres-

ent ability to do bodily harm. ...

[U]nlawful force or violence . . . exist in this case

because there is no legal justification or excuse for

the acts. Further, inere can be no lawful consent by

a victim to this type of assault. ...

|T | he specific intent involved here is a specific intent

to do bodily harm. ... [S]ee paragraph 54¢(1) (b)

(i) at page . . . IV-95 of the Manual for Courts-

Martial.

Bodily harm means any physical injury to or offen-

sive touching of another person, however slight. . . .

|A]ny rational person would find it offensive to be

touched by the Human Immunodeficiency Virus.

(T]he natural and probable consequence of the acts

attempted by the accused would be the touching of

.. . [JPH’s body| by the Human Immunodeficiency

Virus.

* * * *

I have considered the testimony that not every act

of unprotected anal intercourse results in transmis-

sion of ... |HIV], and I have considered the testi-

mony that not everyone who is infected with the

virus dies or suffers grievous bodily harm.

However, given the available medical testimony, I

conclude that the . .. [HIV] is a means which is

likely to produce death or grievous bodily harm.

(Emphasis added. }

I

With respect to issue I, it is now beyond cavil that it

is permissible under the Code to charge aggravated as-

sault, where the means alleged as likely to produce death

6a

or grievous bodily harm is HIV. See United States v.

Stewart, 29 MJ 92 (CMA 1989); United States v.. Wo-

mack, 29 MJ 88 (CMA 1989); United States v. Weods,

28 MJ 318 (CMA i989). An offense so charged is not

void for vagueness. Appellant was provided adequate no-

tice that he could be held criminally liable for consensual

sodomy with another person, military or civilian, male

or female. See Parker v. Levy, 417 U.S. 733, 94 S.Ct.

2547, 41 L.Ed.2d 439 (1974).° It is well-recognized that

the military services and society at large have a com-

pelling interest to ensure that those who defend the na-

tion remain healthy and capable of performing their

duty. United States v. Womack, supra at 90 (citing Na-

tional Treasury Employees Union v. Von Raab, US.

—, 109 S.Ct. 1384, 1396, 103 L.Ed.2d 685 (1989) ).

Further, sodomy, consensual or otherwise, is not consti-

tutionally protected conduct within the military. United

States v. Scoby, 5 MJ 160 (CMA 1978); United States

v. Jones, 14 MJ 1008 (ACMR 1982), pet. denied, 15 MJ

456 (1983).° Lastly, appellant’s claim that he was denied

fair notice that his semen or blood contained the means

to inflict death or grievous bodily harm would leave any

jurist incredulous. Once appellant tested positive for

HIV, medical personnel made him overtly aware of the

dangers of transmitting the virus should he have unpro-

tected sexual contact with another person. This was sub-

stantiated by Dr. Winn and by appellant’s own testimony.

5 The Court of Military Review noted that the criminal and civil

law are changing rapidly in AIDS cases, and it opined that “a more

accurate” pleading in this case would have been that appellant’s

semen, which carried the AIDS virus, was the “‘means likely to

produce death or grievous bodily harm.” 27 MJ at 802-03. Whether

the means was alleged to be the virus itself, or the medium and the

virus, does not seem significant to us. Even if it was, we agree that

appellant was not prejudiced by the pleadings at trial and that he

had adequate notice as to what was alleged against him. Cf. United

States v. Durham, 21 MJ 232 (CMA 1986).

8 Cf. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d

140 (1986).

7a

We are satisfied that alleging aggravated assault under

these circumstances does state an offense and that it is

constitutionally permissible to charge such an offense un-

der the Uniform Code.

II

Turning to the second issue, we note that Article 128

sets out four elements for the offense of assault with a

means likely to produce death or grievous bodily harm.

The Manual for Courts-Martial identifies these elements

as follows:

(i) That the accused attempted to do, offered to

do, or did bodily harm to a certain person;

(ii) That the accused did so with a certain

Weapon, means, or force;

(ili) That the attempt, offer, or bodily harm was

done with unlawful force or violence; and

(iv) That the weapon, means, or force was used

in a manner likely to produce death or grievous bod-

ily harm.

Para. 54b (4) (a) (i)-(iv), Part IV, Manual for Courts-

Martial, United States, 1984 (emphasis added).

The first element of aggravated assault can be satis-

fied by a mere attempt, 7.e., “[t] hat the accused attempted

to do... bodily harm to” a person. Although appellant

testified that he did not attempt to penetrate JPH’s anus

with his penis, it is difficult to imagine how much fur-

ther appellant would have had to go to commit an overt

act constituting an attempt. See para. 54¢(1) (b) (i),

Manual, supra. Indeed, the military judge specifically

found appellant guilty, beyond a reasonable doubt, of the

offense of attempted anal sodomy. See n. 1, supra. More-

over, the military judge expressly stated his disbelief of

appellant’s claim that he wore a condom (which would

have protected JPH from transmission of the virus).

8a

The judge heard the evidence and observed the demeanor

of the witnesses. As this Court is limited by Article

67(d), UCMJ, 10 § 867(d), “to matters of law,” we are

precluded from setting aside the military judge’s findings

of fact in light of the substantial evidence of record sup-

porting those conclusions. Cf. United States v. Hicks,

24 MJ 3, 6 (CMA), cert. denied, 484 U.S. 827, 108 S.Ct.

95, 98 L.Ed.2d 55 (1987).

The actus reus of the crime, however, also requires

conduct which goes beyond a simple offer of bodily harm.

See United States v. Stewart, United States v. Womack,

United States v. Woods, all supra. It is not necessary

that such conduct actually cause death or grievous bodily

harm, so long as the means employed is “used in a man-

ner likely to produce . . . [such] harm.” (Emphasis

added.)? Evidence of record sufficiently demonstrates

7 See Comment, Deadly and Dangerous Weapons and AIDS: The

Moore Analysis is Likely to be Dangerous, 74 lowa L.Rev. 951

(1989). See also United States v. Moore, 846 F.2d 1163, 1166 (8th

Cir.1988). The United States Court of Appeals for the Eighth Cir-

cuit held, inter alia, “that the medical evidence” of “record was in-

sufficient to establish that AIDS may be transmitted by a bite.” Jd.

at 1167-68.

The defendant, infected with AIDS, was an inmate at a federal

medical facility and had intentionally bitten two correctins officers,

admitting that he hoped biting the officers would cause them to

contract the disease.Jd. at 1165. The court held, however, that a

human bite, irrespective of the presence of AIDS, can constitute

assault with “a deadly and dangerous weapon.” 7d. at 1167. The

Iowa Comment contends that because the Moore court held that

assault with “a deadly and dangerous weapon” occurs when the

means used is “capable of inflicting harm,” instead of “likely to

inflict harm,” 74 Iowa L.Rev. at 964 (emphasis added, footnote

omitted), it will ultimately allow a lower standard of proof in

aggravated-assault cases involving AIDS.

Countless analogies can be made to having unprotected sex with

an AIDS-infected partner, such as being assaulted with a gun with

a single chamber loaded or carrying a briefcase which, unknown

to the carrier, contains a bomb. See United States v. Johnson, 27

MJ at 803 and n.6 (citations omitted). Suffice it to say, it is beyond

9a

that appellant’s semen containing HIV was certainly a

means capable of transmitting a deadly disease, thus pro-

ducing death or grievous bodily harm. Moreover, the evi-

dence shows that, in this era of heightened awareness

and concern regarding the dangers of transmitting HIV,

both the military and civilian communities recognize

that, under many circumstances, AIDS is “the natural

and probable consequence” of exposure to HIV. United

States v. Stewart, supra at 93 (emphasis added); see

also para, 54c (4) (a} (ii), Manual, supra.

Of course, whether the conduct of the accused involves

a “means ... used in a manner likely to produce death

or grievous bodily harm” is a question to be determined

by the factfinder. We agree with the court below that

the legal question then becomes—“How likely is

‘likely?’?”” 27 MJ at 803. Based upon our holdings in

Stewart and Womack, it must at least be more than

merely a fanciful, speculative, or remote possibility. The

expert medical testimony which the military judge relied

upon in this case was also sufficient as a matter of law

in this regard. There was some competent evidence,

therefore, upon which the military judge could find be-

yond a reasonable doubt that appellant attempted to do

bodily harm to JPH, i.e., engage in unprotected anal in-

tercourse which would have been likely to transmit a

disease which can ultimately result in death. See Jack-

son v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979) ; United States v. Hicks, supra.

Although we are convinced that appellant was prop-

erly charged with an aggravated assault and that the

elements of the offense were established in this case, we

offer the following thoughts. The cases of Stewart, Wo-

mack, and Woods stand for the proposition that the mili-

tary has a legitimate interest in prosecuting unprotected

sexual contact which involves the risk of transmitting the

cavil that, if the circumstances surrounding the sexual contact are

such that HIV is likely to be transmitted, then the virus is a means

likely to produce death or grievous bodily harm.

10a

AIDS virus. They do not stand for the proposition that

persons infected with AIDS will be criminally stigma-

tized and punished more severely when their conduct does

not risk transmission of the virus.* An era of heightened

awareness should not be transposed into irrational fear,

particularly in criminal law, whether in the military or

civilian communities. See Wiggins v. State, 315 Md. 232,

554 A.2d 356 (1989).

The decision of the United States Air Force Court of

Military Review affirming the findings and sentence as

to sodomy and aggravated assault is affirmed.

Judge SULLIVAN concurs.

EVERETT, Chief Judge (concurring) :

Appellant was found gui!t: of attempted anal sodomy

and aggravated assault; but the Air Force Court of Mili-

tary Review set aside the attempt conviction on grounds

of multiplicity. Although this was a legally permissible

option, I believe that, in a case like this, it would have

been preferable for the Court below to have affirmed the

finding of attempted sodomy, considered appellant’s HIV

infection as a factor in aggravation of that offense, and

vacated the conviction of aggravated assault as multi-

plicious.

8 As indicated earlier, n.1, supra, the Court of Military Review

held that the attempted sodomy was multiplicious for findings with

the aggravated assault. This leaves open a question as to what

offense, if any, appellant would have been guilty of if he had worn

a condom throughout, though still not informing JPH of his infec-

tion, thereby arguably not attempting conduct which would have

subjected JPH to the risk of contracting the AIDS virus.

® Apparently our concern is justified. One judge reportedly moved

the sentencing proceedings to the courthouse parking lot, “‘stat[ ing]

that ‘lots of space and sunshine’ would” reduce the risk of the

defendant’s infecting court personnel with AIDS; other judges have

“require[d] defendants [infected] with AIDS to enter pleas and

receive sentences over the phone.” See Comment, 74 Iowa L.Rev. at

952 n.11 (authorities omitted), cited in n. 7, supra.

lla

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

UNITED STATES

Ve

Sergeant NATHANIEL JOHNSON, JR., FR 436-11-4583

UNITED STATES AIR FORCE

ACM 26812

Dec. 22, 1988

Sentence adjudged 26 February 1988 by GCM

convened at McChord Air Force Base, Washing-

ton. Military Judge: Michael B. McShane (sit-

ting alone).

Approved Sentence: Dishonorable discharge,

confinement for ten (10) years, total forfeitures

and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel

Sergi and Major Lynne H. Wetzell.

Leo L.

Appellate Counsel for the United States: Colonel Joe

R. Lamport; Lieutenant Colonel Robert E. Giovagnoni;

Major Terry M. Petrie and Major Mark C. Ramsey,

USAFR.

Before

LEWIS, BLOMMERS and KASTL

Appellate Military Judges

DECISION

KASTL, Senior Judge:

In United States v. Womack, 27 MQ.

(A.F.C.M.R. 1988), we upheld the court-martial

bd

convic-

— 12a

tion of a non-commissioned officer who had AIDS (Ac-

quired Immune Deficiency Syndrome). His offense was

willful disobedience of an order of a superior commis-

sioned officer under Article 90, UCMJ. That order,

among other things, required him to take affirmative

steps to caution and protect any future sexual partners.

But what if no order is given? Today, we address that

question and affirm a conviction in an AIDS case under

Article 128, UCMJ, for aggravated assault. In doing so,

we resolve various issues raised by the accused, includ-

ing due process, multiplicity, sufficiency of the evidence,

and sentence appropriateness.

Factual Setting

Sergeant Johnson was screened for the Human Immu-

nodeficiency Virus (HIV) at McChord Air Force Base,

Washington in July, 1987. He tested positive for the

virus; in September, he was sent to Wilford Hall Medi-

eal Center, Lackland Air Force Base, Texas for evalua-

tion.

While a patient there, he attended a series of lectures,

therapy sessions, and support groups dealing with his

infection. He was briefed on the HIV phenomenon and

safe sex practices, and he was advised how to prevent

transmission of the infection. During an interview by

medical personnel, he acknowledged his understanding of

the information presented. One of the handouts distrib-

uted to the accused dealt in detail with the risks of sex-

ual intercourse for those carrying the HIV virus. It

advised how to lessen the dangers of transmitting that

virus, described the degree of jeopardy inherent in vari-

ous sexual practices, and explained the proper use of

condoms. (Patients at Wilford Hall are not enjoined to

abstain from sexual activity; rather, they are instructed

in low risk sexual options.) Prior to departing the hos-

pital on furlough, the accused was required to complete

a “Pass for HIV Patient Privileges’ form on which he

eT

13a

certified that he had been counseled regarding the HIV

infection and its mechod of transmission. He acknowl-

edged that he would inform sexual partners of his con-

dition prior to sexual activity and utilize appropriate

protective measures.

Meanwhile, by a memorandum dated 23 September

1987, the Assistant Secretary of the Air Force (Readi-

ness Support) implemented a revised DOD policy gov-

erning HIV-infected servicemembers. The directive re-

quires commanders of HIV-infected members to order

them to adhere to what is taught in the preventive medi-

cine counselings. It cautions that failure to follow these

rules can result in administrative or disciplinary action.

Sergeant Johnson was never given such an order by

his commander. Upon his return to McChord AFB, he

was driving off-base when he encountered J.P.H., a 17-

year old male. The two went to Sergeant Johnson’s room

and proceeded to drink. J.P.H. rapidly consumed five

Southern Comforts, two English-type beers, and a 16-

ounce beer. During the evening, Sergeant Johnson in-

vited J.P.H. to lie on a white mink blanket on the floor.

When he did, the accused performed fellatio on J.P.H.

During the evening, J.P.H. became ill from his drinking

and vomited into a paper sack which the accused took to

the trash can in the room. J.P.H. then rolled onto his

stomach, at which time the accused attempted to place

his finger into J.P.H.’s anus. J.P.H. tightened his anus

and told the accused to stop, which he did. Then, the ac-

cused laid on J.P.H.’s back; J.P.H. claimed to have felt

the accused’s unsheathed penis between his legs. J.P.H.

vomited once or twice more. Eventually, the accused

drove J.P.H. to the trailer where he lived.

The accused was found guilty by a military judge

sitting alone of sodomy by fellatio (Article 125); and of

aggravated assault (Article 128) and attempted sodomy

(Article 80), both premised on the act of attempted con-

sensual anal sex. The accused conceded that he was a

|

14a

homosexual, and he pleaded guilty to fellatio with con-

sent under Article 125. At trial, J.P.H. testified that if

he had known his assailant had the AIDS virus, he would

have left the accused’s room.

The specific aggravated assault specification lodged

against the accused states:

In that SERGEANT NATHANIEL JOHNSON,

JR., 62d Field Maintenance Squadron, McChord Air

Force Base, Washington, did at McChord Air Force

Base, Washington, on or about 13 December 1987,

commit an assault upon [J.P.H.] ... by attempting

to penetrate his, the said [J.P.H.’s] anus with the

said Sergeant Nathaniel Johnson, Jr’s. penis, with

a means likely to produce death or grievous bodily

harm, to wit: the Human Immunodeficiency Virus,

in that before on or about 13 December 1987, the

said Sergeant Nathaniel Johnson, Jr. was infected

with the Human Immunodeficiency Virus and knew

he was so infected.

Aggravated Assault

The proper charging of AIDS-related misconduct has

been a lively topic of debt. The range of possibilities is

wide, from attempted murder’ to assault? and it en-

compasses the possibility of pleading AIDS as an aggra-

vating factor in such crimes as sodomy or adultery. See

1 See People v. Richards, No. 85-1715-F4 (68th Jud. Dist. Ct.

Mich.) (AIDS victim spat on officer; charged with attempted mur-

der). See also State v. Phillips, a South Carolina case, cited in Aids

Policy & Law, October 7, 1987, p. 6.

2 See United States v. Moore, 669 F.Supp. 289 (D. Minn. 1987),

aff'd., 846 F.2d 1163 (8th Cir. 1988) (assault with a deadly weapon,

mouth and teeth of AIDS carrier) and United States v. Kazenbach,

824 F.2d 649 (8th Cir. 1987) (defendant, who had AIDS, bit,

scratched, and spat upon a prison correctional officer). See also

Barlow v. Superior Court, 190 Cal. App.3d 1652, 236 Cal. Rptr. 134

(1987).

15a

generally United States v. Sargent, 18 M.J. 331 (C.M.A.

1984), and Wells-Petry, Anatomy of an AIDS Case:

Deadly Disease as an Aspect of Deadly Crime, Army

Lawyer, January 1988, p. 17, 20ff. At least six courts-

martial have been convened based upon AIDS-related

assaults. See N.Y. Times, April 19, 1988 at Z6. In mili-

tary jurisprudence, lessons in how to charge violations

are found in both our own Womack case cited above and

United States v. Woods, M.J. (N.M.C.M.R.

1988). There, the Navy-Marine Court granted a Gov-

ernment appeal under Article 62, UCMJ permitting a

court-martial to go forward for unprotected male-female

intercourse after the accused had been cautioned that he

carried the HIV virus; the Navy offense was charged

under Article 134, UCMJ. See also United States v.

Morris, 25 M.J. 579 (A.C.M.R. 1987) (results of AIDS

test should not have been suppressed by military judge

at trial level).

We have no hesitation in concluding that certain HIV-

related sexual acts are properly chargeable under Article

128, UCMJ. Since the proposition of “assault by AIDS

virus” may appear novel at first glance, we will analyze

it in some detail vis-a-vis the specific crime of aggra-

vated assault with a means likely to produce death or

grievous bodily harm.

1. Means. Did the accused use a means likely to pro-

duce death or grievous harm? We so hold. Commen-

taries on assault, either criminal or tortious, reveal that

the term “means” appears to include almost anything

used in a way that could cause death or injury. Under

civilian law, such items as a spatula, an aggressive dog

which is “sic’d” on someone, or even exposure to the

weather have been held actionable. See generally 6 Am.

Jur. 2d Assault and Battery Sec. 53 (1963). In mili-

tary law, such disparate items as a meat fork, tape re-

corder, cowboy belt, or a United States Marine recruit

l6a

are “means” if used in the requisite way.* Viewed in

light of these precedents, we are convinced that semen

carrying the HIV virus indeed can be a “means” to com-

mit aggravated assault. Our position is strengthened by

numerous cases which have sustained claims of assault in

an intimate setting when the perpetrator knowingly has

spread venereal disease or herpes, or has falsely claimed

he had a vasectomy.*

The law is developing rapidly in this area. When

charging the offense, pinpointing the precise means em-

ployed by the accused to commit the assault can be diffi-

cult. In this complicated case, we believe a more accurate

specification would have charged the accused with aggra-

vated assault by attempting to penetrate the victim’s

anus with semen. The type of aggravated assault

charged here is an “attempt-type” assault rather than

an “offer-type;” it therefore requires a specific intent.

See MCM, 1984, Part IV, paragraph 54c(1) (b) (i).

Here, the intent of the accused was to gain sexual grat-

3 See the cases gathered at Wells-Petry, Anatomy of an AIDS

Case: Deadly Disease as an Aspect of Deadly Crime, Army Lawyer,

January 1988 at 23.

4 Cases where the perpetrator spread the herpes virus to unsus-

pecting victims and was held liable are B.N. v. K. K., 312 Md. 135,

538 A.2d 1175 (Md. 1988) (herpetic defendant never told plaintiff

of his condition; court found defendant knowingly engaged in con-

duct likely to infect others when he was aware of his infirmity;

numerous cases analyzed) and Kathleen K. v. Robert B., 150 Cal.

App. 3d 992, 198 Cal. Rptr. 273, 276-277 (Cal. 2d Dist. 1984) (any

possible consent vitiated by fraudulent concealment). For prosecu-

tions for assault where the defendant had venereal disease, see

State v. Lankford, 29 Del. 594, 102 Atl. 63 (1917) and Richard H.

v. Larry D., 198 Cal. App. 3d 591, 243 Cal. Rprt. 807 (Cal. 1st Dist.

1984). Finally, for a case where the defendant told the prosecutrix

he could not impregnate her because he had had an operation, see

Barabara A. v. John G., 145 Cal. App. 3d 369, 193 Cal. Rptr. 422,

432-433 (Cal. 1st Dist. 1983) (also cites Delaware, North Carolina,

and Texas cases concerning assault by males having a venereal

disease). See generally Annot., 40 A.L.R.3d 1089 (1980) for an

exhaustive listing of cases.

17a

ification by releasing semen. His semen carried the HIV

infection and was the vehicle or “means” potentially

causing harm or death. As to this matter, we discern

no prejudice to the rights of the accused in the way the

offense was charged. He was clearly on. notice as to

what was alleged against him. See R.C.M. 307(c) (3)

and United States v. Durham, 21 M.J. 282 (C.M.A.

1986).

2. “Used.” This means was “used” when the accused

placed his penis near the accused’s anus seeking sexual

gratification. Through unprotected sexual coupling, he

could well have deposited the HIV virus inside his vic-

tim’s body, thus “using” the semen in a deadly or harm-

ful way. As one writer puts it, such sexual conduct can

be analogized to attempting to put poison in the drink

of a victim.

3. Death or Grievous Bodily Harm as a Likely Result.

We are confident that the means was used in a manner

so that death or grievous bodily harm would be a likely

result. How likely is “likely?” No statistical model can

predict the precise degree of danger sufficient to sustain

a conviction. We are satisfied, however, that the expert

testimony at trial adequately developed a degree of prob-

ability sufficient for a valid conviction. See United States

v. Baker, 24 M.J. 354, 356 (C.M.A. 1987). It appears

beyond dispute that AIDS is a chilling disease; as one

New York court puts it, “[A]t no time in recent history

has there been an issue capable of causing such anxiety

and fear.” Anne D. v. Raymond D., 139 Misc.2d 718,

528 N.Y.S.2d 775 (1988). We reason that it is unnec-

essary that death or serious bodily harm be actually in-

flicted to uphold a conviction for aggravated assault. See

MCM, 1984, Part IV, paragraph 54¢(4) (a) (iv): see

also United States v. Schroder, 47 C.M.R. 430, 434

5 See Wells-Perry, supra, at 23-24.

18a

(A.C.M.R. 1973) (exposure to grenade; injury or death

“could result’) .°

4. Knowledge. The accused had been counseled in

depth at Wilford Hall; he was aware that his semen was

highly likely to contain the HIV virus and that he could

transmit a deadly disease to others with whom he might

have intimate sexual conduct.

5. Overt Acts Beyond Mere Preparation. Did the ac-

cused’s activity extend beyond “mere preparation” as

that term is used in the Manual for Courts-Martial at

paragraph 54¢(1)(c) (i)? Yes. We believe it clear that

the accused intended to have anal intercourse with J.P.H.

It follows that he attempted to put “infected semen” in-

side the victim’s anus. Factually, he was prevented from

so doing when: (a) J.P.H. tightened his anus to stop

the attempt; and (b) J.P.H.’s drunkenness and vomiting

caused the accused to lose interest. See United States ».

Byrd, 24 M.J. 286 (C.M.A. 1987), and United States

v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987). Based upon

the record, we are convinced that the accused committed

overt acts toward sexual union that were sufficient to

constitute a criminal attempt See generally MCM, 1984,

Part IV, paragraph 54¢(1) (¢) (i).

6. Consent. It was argued at trial that J.P.H. con-

sented to sexual acts with the accused. The defense

noted the unique nature of assault by means of sexually

transmitting a virus and likened it to other sexual of-

fenses between adults. The defense then argued that if

there was consent, the accused could not be guilty. We

find this argument unpersuasive. In the first place, the

6 One commentator has likened the victim of an HIV assault to

an individual handcuffed to a briefcase full of explosives. The brief-

case may never explode, or it may explode and maim the victim, or

it may kill. See Wells-Petry, supra, at 23. The analogy can be

extended a step further. If the assailant does not inform the victim

of his infection, it is as if the victim is handcuffed to the briefcase

but does not even know the potentially-lethal briefcase is there!

19a

victim’s “consent” was uninformed; he did not know his

partner was infected. Furthermore, regardless of con-

sent, the military judge correctly found that consent by

the victim is not a valid defense when the conduct is of

a nature to be injurious to the public as well as to the

party assaulted. See United States v. Holmes, 24 C.M.R.

762 (A.F.B.R. 1957); United States v. Woods, supra.;

Annot., 58 A.L.R.3d 662 (1974); see also Binson, Law,

Social Policy, and Contagious Disease: A Symposium on

Acquired Immune Deficiency Syndrome (AIDS): AIDS

and the Criminal Law: Traditional Approaches and a

New Statutory Proposal, 14 Hofstra L. Rev. 91 (Feb.

1985). We too find no valid consent here: Whatever the

degree of assent to sexual by-play between the individ-

uals, there was no approval by the victim to transmis-

sion of the AIDS disease.’

Constitutionality

The accused at trial urged the military judge to dis-

miss the aggravated assault specification on the basis

that it was void for vagueness and violative of his Con-

stitutional right of due process; the argument was pre-

mised on the contention that the accused was never in-

formed that failure to follow the Wilford Hall counsel-

ings might lead to disciplinary action. In the defense

view, this denied Sergeant Johnson fair notice that his

conduct could be criminal due to his status as an HIV

carrier.

We reject the accused’s constitutional argument that

the aggravated assault offense is vague since he was

neither ordered to engage solely in “safe sex’ nor coun-

7 One might look to standard tort analysis for a useful methodol-

ogy to understand assault by HIV virus. Thus, the elements of

duty; its breach; proximate causation; and assessment of damages,

either punitive or financial, can be helpful. “Foreseeability” is

another legal concept which can be employed in analysis. See United

States v. Henderson, 23 M.J. 77, 79-80 (C.M.A, 1986).

20a

selled that future sexual conduct might subject him to

prosecution. He is not charged with failure to obey an

order, but with aggravated assault under Article 128,

UCMJ. An argument based on due process and fair no-

tice, simply stated, is inapplicable to the offense of as-

sault. There is no vagueness as to assault; the accused

knew he’carried the AIDS virus and that unprotected sex

could harm his partner.

Moreover, we accept without reservation the proposi-

tion that the Air Force may impose reasonable regula-

tion on sexual relations of servicemembers infected with

AIDS. See United States v. Womack and United States

v. Woods, both supra. For HIV-positive airmen who are

sexually active, regulation is clearly waranted. See gen-

erally Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547,

41 L.Ed.2d 439 (1974) (unique needs of military so-

ciety).

Sufficiency of Evidence

The appellate defense brief strongly urges that the

record is insufficient to support conviction of these of-

fenses. We have most carefully analyzed the record, par-

ticularly the testimony of the various agents of the Office

of Special Investigations, the accused, and J.P.H. We

conclude that there is ample evidence to support the mili-

tary judge’s findings of guilty and his special findings on

the aggravated assault charge, including his conclusion

that the accused did not use a condom in his relations

with J.P.H. Like the trial judge, we are convinced be-

yond a reasonable doubt that the accused is guilty of

these offenses. United States v. Lips, 25 M.J. 679, 684

(A.F.C.M.R. 1986) and United States v. Carr, 25 MJ.

637 (A.C.M.R. 1987).

Multiplicity

The accused argues that the offenses of consensual

sodomy by committing fellatio and of attempted anal

sodomy (Charges I and II) are multiplicious for sentenc-

2la

ing. Although the matter is not without some authority

on either side, we believe the better view is that these

two offenses are not multiplicious for sentencing. See

United States v. Cor, 18 M.J. 72, 74 (C.M.A. 1984);

United States v. Ziegler, 14 M.J. 860 (A.C.M.R. 1982)

pet. denied, 15 M.J. 461; and United States v. Dearman,

7 M.J. 713 (A.C.M.R. 1979). But see United States v.

Langford, 15 M.J. 1090, 1094 (A.C.M.R. 1983).

We find it necessary to deal with another aspect of

multiplicity in this case. At trial, the military judge

found attempted anal sodomy and aggravated assault by

means of the AIDS virus (Charges I and III) multi-

plicious for sentencing. We concur. However, the mili-

tary judge did not address whether they are multiplicious

for findings. We believe they are indeed multiplicious

for findings. See United States v. Baker, 14 M.J. 361,

367 (C.M.A. 1983) and United States v. Armusewicz,

16 M.J. 418 (C.M.A. 1983) (Sum. Dis.) ; see also United

States v Demmer, 24 M.J. 731, 736 (A.C.M.R. 1987)

and United States v. Meade, 19 M.J. 894, 895 (A.C.M.R.

1985). We reason that the accused’s criminal conduct is

most accurately reflected by Charge III. We recognize

that this is one of those rare situations where the matter

which on its face appears the more serious (Charge III)

carries a lesser maximum punishment than the alterna-

tive in Charge I. MCM, Part IV, paragraphs 51e(3) and

54e(8)(b) (1984). Nonetheless, we are persuaded that

Charge III is the more accurate representation of what

the accused did. See also MCM, Part IV, paragraph 4c

(5) (f) (1984). We order Charge I and its specification

dismissed.*

8’ We pause to note another irony as to findings and sentence. At

trial, the military judge found the accused not guilty of an Article

134 offense of assault with intent to commit sodomy. We surmise

he did so because of the exigencies of proof and not because the

charge was unproven. That offense carries a maximum of 10 years

confinement. Charge II under Article 125 carries a five year maxi-

22a

Sentence

Based on his evaluation of multiplicity, the military

judge found that the maximum punishment available was

a dishonorable discharge, total forfeitures, reduction to

airman basic, and ten years of confinement. The military

judge sentenced the accused to the maximum punishment

allowed.

Under the circumstances the military judge applied an

incorrect maximum punishment. As we understand it,

the military judge concluded that there was a 10 year

maximum in this case based upon a combination of two

criminal actions (1) the sedomy by fellatio under Ar-

ticle 125 (Charge II); and (2) the attempt to commit

sodomy by anal sex under Article 80 (Charge I). Since

we find that Charge I has been subsumed within Charge

III, it follows that the Charge III maximum is the one

applicable here, i.e., a maximum of three years of con-

finement, dishonorable discharge, and accessory penalties.

In short, the correct maximum available in this case was

eight years—five years under Charge II, and three years

under Charge III.

Based on the correct maximum punishment available

of eight years of confinement, we will reassess. The rec-

ord generally reflects a pathetic attempt at consensual

homosexual contact. No force was used, and we can

imagine far more aggravating circumstances on similar

facts. Accordingly, we find appropriate only so much of

the sentence as extends to a dishonorable discharge, total

forfeitures, reduction to airman basic, and six years con-

finement.

Before concluding, we commend all advocates involved

with this complex case. The case was well tried and well

defended, and the appellate briefs were excellent.

mum. Thus, under an alternative method of pleading, the maximum

possible in the case could have been 15 years.

23a

The findings of guilty and the sentence, as modified,

are

AFFIRMED.

Senior Judge LEWIS and J udge BLOMMERS concur.

[SEAL] OFFICIAL:

/s/ Carole V. Petti

CAROLE V. PETTI

Clerk of Court

Court of Military Review

wus GOVERNMENT PRINTING OFFICE, 1990 271134 62097