Opposition Brief — Johnson v. United States

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QUESTION PRESENTED

Whether a charge of aggravated assault based on

an attempt to expose the victim to the Human Im-

munodeficiency Virus (HIV) through uninformed,

unprotected anal intercourse is unconstitutiorally

vague where the defendant knew that he was in-

fected with HIV and recognized his responsibility to

inform sexual partners of his condition and to pre-

vent the transfer of his bodily fluids.

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TABLE OF CONTENTS

Page

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REESE LEAL CTT 1

Statement sin 2

er ssissnnainani 4

Conclusion 7

TABLE OF AUTHORITIES

Cases:

Hoffman Estates v. The Flipside, Hoffman Es-

tates, Inc., 455 U.S. 489 (1982) 20. 6

Parker v. Levy, 417 U.S. 733 (1974) ....0000000000002... 6

Rose v. Locke, 423 U.S. 48 (1975) -...0000. 5-6

United States v. Mazurie, 419 U.S. 544 (1975)... 5

United States v. Powell, 423 U.S. 87 (1975)........ 5

United States v. Sales, 22 M.J. 305 (C.M.A. 1986)... 5

Wainwright vy. Stone, 414 U.S. 21 (1973) 0.0.2... 6

Constitution and statutes:

U.S. Const. Amend. I ..... . 5

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Cs 5 | ee 2

I I I so ceecsscensscenncevenococnsoned 2

Art. 128, 10 U.S.C. 928 | .2, 4, 5, 6

Miscellaneous:

Manual for Courts-Martial, United States—1984.. 4,5

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id

u

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-61

NATHANIEL JOHNSON, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals (Pet.

App. la-10a) is reported at 30 M.J. 53. The opinion

of the Air Force Court of Military Review (Pet. App.

1la-23a) is reported at 27 M.J. 798.

JURISDICTION

The judgment of the Court of Military Appeals

was entered on April 12, 1990. The petition for a

writ of certiorari was filed on July 9, 1990. The ju-

risdiction of the Court is invoked under 28 U.S.C.

1259(3).

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2

STATEMENT

Following a general court-martial at McChord Air

Force Base in Washington, petitioner, a member of

the United States Air Force, was convicted of at-

tempted anal sodomy, in violation of Article 80 of the

Uniform Code of Military Justice (UCMJ), 10 U.S.C.

880 (Charge 1); oral sodomy, in violation of Article

125, UCMJ, 10 U.S.C. 925 (Charge 2); and aggra-

vated assault, in violation of Article 128, UCMJ, 10

U.S.C. 928 (Charge 3). Petitioner was sentenced to

confinement for ten years, a dishonorable discharge,

forfeiture of all pay and allowances, and a reduction

in rank. The convening authority approved the find-

ings and sentence. The Air Force Court of Military

Review dismissed the attempted anal sodomy charge

on the ground that it was multiplicious with the ag-

gravated assault charge,’ affirmed the remaining

findings, and reduced the period of confinement to

six years. The court affirmed the convictions and sen-

tence in all other respects. On discretionary review,

the Court of Military Appeals affirmed.

1. Petitioner provided a blood sample in July 1987

that subsequently tested positive for the Human Im-

munodeficiency Virus (HIV). Pet. App. 12a. Peti-

tioner was informed of the test results on August 31,

1987, and he was sent to the Wilford Hall Medical

Center at Lackland Air Force Base in Texas for fur-

ther testing, evaluation, and counseling. He remained

a patient at the medical center from September 4

until about October 4, 1987. Tr. 277; PX 2. During

that period, petitioner received extensive information

about his medical condition and methods of prevent-

1 Both offenses were based upon the same act of attempted

penetration of the victim’s anus.

3

ing the transfer of HIV. This included lectures by

medical personnel, therapy sessions, HIV support

groups, and related literature. Tr. 52-58; PXs 5-9.

Petitioner was given written guidance at least twice

on “safe sex” or “low risk” sexual practices, which

included using condoms during intercourse and in-

forming prospective sexual partners of his HIV in-

fection. Tr. 52-58; PXs 8-9.?

Petitioner later admitted to agents of the Air Force

Office of Special Investigations that on December 13,

1987, after he had been released from the medical

center and returned to McChord Air Force Base, he

performed oral sodomy on J, a 17-year-old male civil-

ian. He also admitted applying lubricant to J’s anus

and attempting to insert his penis. Tr. 88, 145-151,

196, 205-206, 223. Petitioner said that he served J

three beers and four or five mixed drinks, and he ad-

mitted that J was too intoxicated to have rebuffed

his sexual advances. Tr. 97-98, 149. Petitioner ad-

mitted that he never informed J that he was infected

with HIV. Tr. 221. The trial judge, sitting in a

bench trial, found that petitioner was not wearing a

condom when he attempted to engage in anal inter-

course with J. Tr. 270. At trial, petitioner acknowl-

edged that he knew he was likely to spread the HIV

infection if he engaged in anal intercourse without

using a condom. Tr. 224.

2. At trial and on appeal petitioner argued that

the offense of aggravated assault was unconstitution-

2 For example, on September 10, 1987, petitioner signed a

form to obtain a pass from the medical center. The form

stated in part, PX 9:

I understand that I will inform sexual partners of my

condition prior to sexual activity and will utilize appro-

priate protective measures during sexual intercourse.

4

ally vague where the “means * * * likely to produce

death or grievous bodily harm” required by Article

128 was HIV infection.* The trial judge, the court of

military review, and the Court of Military Appeals

all rejected petitioner’s claim. Tr. 21-22; Pet. App.

5a-7a, 19a-20a.*

ARGUMENT

Petitioner’s sole claim is that the charge of aggra-

vated assault under Article 128, UCMJ, 10 U.S.C.

928, is unconstitutionally vague when the aggrava-

tion element, i.e., the “means * * * likely to produce

death or grievous bodily harm,” arises from his in-

fection with HIV. That claim does not warrant re-

view by this Court.

1. In the first place, petitioner was not prejudiced

by the decision below. Petitioner was convicted of

three charges: attempted anal sodomy (Charge 1),

oral sodomy (Charge 2), and aggravated assault

(Charge 3). The court of military review dismissed

the charge of attempted anal sodomy because it was

multiplicious with the charge of aggravated assault.

Pet. App. 20a-21a. By so doing, the court of military

review reduced the total punishment that petitioner

faced. If petitioner were to prevail in his claim that

he cannot be convicted of aggravated assault, on re-

3’ The elements of aggravated assault under Article 128 are

set forth at Manual for Courts-Martial, United States—1984

Pt. IV, para. 54b(4) (a) (iv), at IV-94, and are reproduced

at Pet. App. 7a.

* Judge Cox, writing for the Court of Military Appeals,

stated that petitioner’s claim he lacked fair notice that his

blood or semen contained a means likely to produce death or

grievous bodily harm “would leave any jurist incredulous.”

Pet. App. 6a.

5

mand the military courts could reinstate his convic-_

tion for attempted anal sodomy, which has a longer

term of imprisonment than aggravated assault. Com-

pare Manual for Courts-Martial, United States—

1984 (Manual) Pt. IV, para. 51e(3), at IV-91 (au-

thorizing a five-year term of imprisonment for sod-

omy) with id. Pt. IV, para. 54e(8) (b), at IV-98 (au-

thorizing a three-year term of imprisonment for as-

sault likely to produce death or grievous bodily harm).

The court of military review noted this irony when it

vacated petitioner’s conviction for attempted anal

sodomy. Pet. App. 21a. Although on remand peti-

tioner would not receive a sentence in excess of the

six-year sentence he now faces, he could receive that

identical term of imprisonment. See United States v.

Sales, 22 M.J. 305 (C.M.A. 1986). Under these cir-

cumstances, petitioner was not prejudiced by the de-

cision below.

2. In any event, the decision below is correct. Pe-

tioner concedes that Article 128, which outlaws as-

sault, is not unconstitutionally vague on its face. Pet.

5. Rather, he contends that Article 128 becomes “un-

intelligible regarding the conduct it seeks to pro-

scribe,” Pet. 5, when the government alleges that

HIV is the “means * * * likely to produce death or

grievous bodily harm” as required by Article 128.

Manual Pt. IV, para. 54b(4) (a) (iv), at [V-94. Be-

cause Article 128 does not infringe First Amend-

ment freedoms, petitioner’s vagueness challenge must

be evaluated in light of the particular facts of his

case. United States v. Powell, 423 U.S. 87, 92 (1975);

United States v. Mazurie, 419 U.S. 544, 550 (1975).

The question therefore is whether petitioner had fair

warning that his own conduct was forbidden. United

States v. Powell, 423 U.S. at 93; see Rose v. Locke,

6

423 U.S. 48, 49 (1975); Wainwright v. Stone, 414

U.S. 21, 22 (1973). If petitioner had such notice, he

cannot complain that Article 128 could be vague when

applied to others. Hoffman Estates v. The Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

In light of petitioner’s trial testimony, there is no

basis for his claim that he was unaware that trans-

mitting HIV was a “means * * * likely to produce

death or grievous bodily harm.” Petitioner admitted

that he received extensive education on his disease,

and that he knew of his responsibility to advise and

protect his sexual partners. Tr. 222. Despite that

knowledge, petitioner did not advise J that he was

HIV positive, nor did petitioner wear a condom when

his penis came in contact with J’s buttocks. Tr. 104,

151, 222-224. Petitioner also admitted knowing that

engaging in anal intercourse without using a condom

was likely to spread HIV. Tr. 224-225. Accordingly,

the facts show that petitioner was well aware that

he was likely to transmit HIV to J by engaging in

unprotected anal intercourse.’ Under these circum-

stances, petitioner cannot claim that Article 128 is

unconstitutionally vague. See Parker v. Levy, 417

U.S. 733, 756 (1974).

5 Petitioner’s defense at trial was that he had used a

condom, Tr. 205, and a condom was found in a trash can in

petitioner’s room, Tr. 157, 172-173; PX 11. But J testified

that petitioner did not use a condom, Tr. 104-105, and the

agents who found the condom said that it was buried beneath

a quantity of other trash in the bottom of petitioner’s trash

can, Tr. 158-159, 173-176. The trial judge found that peti-

tioner did not use a condom. Tr. 270.

PRESENCE ee ET ee

7

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

WILLIAM R. DUGAN, JR.

Col., OJAG, USAF

BRENDA J. HOLLIS

Maj., OJAG, USAF

Morris D. DAVIS

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

SEPTEMBER 1990

ov. 8. GOVERNMENT PRintine OFrrice; 1990 262203 20132