Petition for Writ of Certiorari — Dumford v. United States

ita Supreme Court, US 7 ,

_é 4" FILED

90-2 0% ‘| aug 1 We

No. | JOSEPH F. SPANIOL, JR.

Cir OK

_

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Marc A. DUMFORD,

Petitioner

Ve

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RONALD G. MORGAN

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

Counsel of Record

BERNARD E. DOYLE, JR.

Major, Office of The Judge

Advocate General

United States Air Force

August 1990 Attorneys for Petitioner

7

Y= a

4 oan a ee

QUESTIONS PRESENTED

I. Whether a military order requiring the petitioner

to inform all sexual partners that he is positive for the

Human Immunodeficiency Virus (HIV), and to prevent

transfer of bodily fluids during sexual intercourse, is un-

lawful for being overbroad and exceeding any military

necessity.

II. Whether a specification alleging aggravated as-

sault under Article 128, Uniform Code of Military Jus-

tice is unconstitutionally vague as applied to the peti-

tioner, when the aggravation element is premised upon

the petitioner’s medical condition of being infected with

HIV,

(i)

TABLE OF CONTENTS

EE TE RE er ie eee Se ears Oe eC 1

ERE STE SA RS le RN ee Re aR eee 1

Constitutional and Regulatory Provisions Involved ....... 2

Ss caicnpsesellicebemaislipanne 2

Reasons for Granting the Writ ...................02......eee eee 3

re cacieebanbaaenseinanssubanmeninn 6

a anpsuonnesiicsobavena la

SEER IEEERe Sa C Ce 7a

TABLE OF AUTHORITIES

Cases:

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 3

Kolender v. Larson, 461 U.S. 351 (1983) ..........0..... 5

Parker v. Levy, 417 U.S. 788 (1974) ......................... 5

United States v. Harris, 347 U.S. 612 (1954) ......... 5

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

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

United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R.

eat RE ee coe re 3

United States v. Dumford, 30 M.J. 187 (C.M.A.

EE ne 1,4

United States v. Smith, 23 U.S.C.M.A. 542, 50

I aa eeeennebmncican 4

United States v. Wilson, 12 U.S.C.M.A. 165, 30

AAT TE 4

Constitutional, Statutory and Regulatory Authorities:

United States Constitution, Amendment V ............. 2, 3,5

Article 128, U.C.M.J., M.C.M. (1984) ....................... 5, 6

10 U.S.C. 867(h) (Supp. ITI 1985) —.........-0...-... ;

4

28 U.S.C. 1259(3) (Supp. III 1985) .........................

M.C.M. (1984), Part IV, Para. 14(c) (2) (A) (iii) ..

Miscellaneous:

Anatomy of an AIDS Case: Deadly Disease as an

Aspect of Deadly Crime, Army Lawyer, January

1988 ..... 6

(iii)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. ——

Marc A. DUMFORD,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Mare A. Dumford, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Military Appeals entered in

his case on May 10, 1990.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 30 M.J. 187 (C.M.A. 1990) (Ap-

pendix B). The opinion of the Air Force Court of Mili-

tary Review is reported at 28 M.J. 836 (A.F.C.M.R.

1989) (Appendix A).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on May 10, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(3) (Supp.

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

2

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the United

States provides in relevant part:

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

property without due process of law.

STATEMENT OF THE CASE

The petitioner, an Air Force enlisted person, was tried

by a general court-martial in a judge alone trial at Lack-

land Air Force Base, Texas, on August 25, 1988. He

pled guilty to willful disobedience of an order requiring

him to inform sexual partners prior to engaging in sex-

ual relations and to use proper methods to prevent the

transfer of bodily fluids during sexual relations. He fur-

ther pled guilty to aggravated assault. He was sentenced

to a dishonorable discharge, confinement for two years,

total forfeiture of all pay and allowances and reduction

to E-1.

Petitioner was screened for the Human Immunodefi-

ciency Virus (HIV), the virus that causes Acquired Im-

mune Deficiency Syndrome (AIDS). On February 1,

1988, he was sent to the Wilford Hall Medical Center at

Lackland Air Force Base in San Antonio, Texas for fur-

ther medical tests and an orientation regarding the na-

ture of the infection. Petitioner’s diagnosis included the

determination that he was in status la, which meant

that he did not exhibit any symptoms of AIDS.

On February 4, 1988, the petitioner received as part

of his orientation, a “safe sex” order from his doctor,

Captain Abbedessa. The order required him to (1) in-

form sexual partners that he was HIV positive prior to

engaging in sexual relations, (2) use proper methods to

prevent the transfer of body fluids during sexual rela-

tions, including the use of condoms, and (8) inform

medical personriel rendering emergency care to him that

he was HIV positive.

The following evening, while on pass from the hos-

pital, the petitioner met Judith F. Carrell at the Non-

Commissioned Officers Club at Lackland Air Force Base.

They later engaged in sexual intercourse at an off-base

hotel. He did not inform Ms. Carrell that he was HIV

positive, nor did he use protective measures to prevent

transfer of body fluids during sexual intercourse. Ms.

Carrell, who lived in Houston, Texas, has no direct con-

nection with the United States military. She was in

San Antonio on a sight seeing visit with some friends.

This single liaison with Ms. Carrell constitutes the

substance of both charges of which the petitioner has

been convicted. At trial, the petitioner did not question

the lawfulness of the “safe sex” order, nor the suffi-

ciency of the assault specification.

REASONS FOR GRANTING THE WRIT

I

In Griswold v. Connecticut, 381 U.S. 479 (1965), this

Court recognized that the specific guarantees in the

United States Constitution’s Bill of Rights have penum-

bras where individual privacy is protected from govern-

mental intrusion. In Griswold, the Court found that the

right of marital privacy was within these penumbras.

Constitutional concepts of due process of law have long

been extended to members of the military. United States

v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. (1951). This case

presents the issue of whether the military may crim-

inally enforce an order restricting one’s constitutional

right to privacy in the absence of any military purpose

other than concern for limiting the spread of HIV.

An order, to be lawful, must relate to a military pur-

pose. The Manual for Courts-Martial, United States,

4

1984, Part IV, Paragraph 14(c) (2) (A) (iii) recognizes

an order may not restrict a service member’s right to

privacy absent a clear military need:

The order must relate to military duty, which in-

cludes all activities reasonably necessary to accom-

plish a military mission, or safeguard or promote

the morale, discipline, and usefulness of members of

a command and directly connected with the mainte-

nance of good order in the service. The order may

not, without such a valid military purpose, interfere

with private rights or personal affairs.

Thus, when an order fails to meet the above requirements

and is broadly restrictive of a private right, it is arbi-

trary, patently illegal, and will be struck down. United

States v. Smith, 23 U.S.C.M.A. 542, 50 C.M.R. 715

(1975) ; United States v. Wilson, 12 U.S.C.M.A. 165, 30

C.M.R. 165 (1961).

The United States Court of Military Appeals has er-

roneously determined in this case that the “safe sex”

order has a valid military purpose. The court said:

“(We are certain that, when 2 servicemember is cap-

able of exposing another person to an infectious discase,

the military has a legitimate interest in limiting his con-

tact with others, including civilians.” United States v.

Dumford, 30 M.J. 137, 138 (C.M.A. 1990).

The Court of Military Appeals has thus indicated that

military necessity may be met by the most tenuous of

links to military mission, morale, discipline, or mainte-

nance of good order. This reasoning runs contrary to

prior precedent, and it stretches the definition of riii-

tary necessity beyond any reasonable limitation. Relying

upon the court’s public relations as military necessity

reasoning, one can easily find any order lawful if the

restricted behavior has potential to upset the local com-

munity. Thus, using the court’s public duty and service

discrediting test, a commander, in a racially divisive

5

community, could lawfully order service members not to

associate with civilians of another racial group.

II

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

Failure to define a criminal offense without sufficient

definiteness that ordinary people can understand what

conduct is prohibited results in a denial of due process.

See Kolender v. Larson, 461 U.S. 351 (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); United States v. Powell, 423 U.S.

87 (1975). Void for vagueness simply means that crim-

inal 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. 733, 757 (1974).

The elements of aggravated assault under Article 128

of the Uniform Code of Military Justice are:

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

or did bodily harm to a certain person;

(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; and

(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 uncon-

stitutionally vague on its face, Article 128 becomes un-

intelligible on what conduct is prohibited when the

“means” of the atteupted bodily harm is the possible

transmission of a virus.

6

In order to bring AIDS related conduct under Article

128, one must view the conduct ‘“‘as though under a micro-

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

Disease as an Aspect of Deadly Crime, Army Lawver,

January 1988 at 23. In doing so, legal concepts of ‘‘bod-

ily harm,” “grievous bodily harm,” and “means or force

likely,” must be stretched far beyond present legal defi-

nitions to bring the conduct under aggravated assault.

The offensive touching for bodily harm is no longer the

sexual touching itself, but rather, placing HIV at the

door to the victim’s immune system. The grievous bod-

ily harm must then be the transmission of the virus into

the victim’s bloodstream. The means is the HIV which

the carrier may transmit through unprotected sexual ac-

tivity, although the experts are unable to provide any

clear ideas as to the likelihood of transmission. When

experts, courts and legislatures cannot define a crime

without confronting the difficulties faced in applying

Article 128 to HIV cases, then neither should the peti-

tioner be expected to do so. The need to apply such

microscopic analysis clearly denied the petitioner and

other HIV carriers notice that their conduct could make

them criminally liable for aggravated assault.

CONCLUSION

Our society is clearly inflamed with hysteria over the

HIV epidemic. This often results in a callous indiffer-

ence or overt hostility towards infected persons. How-

ever, we cannot allow our legal system to be improperly

cused as a tool for the further persecution of HIV car-

riers. Although certain behaviors by HIV infected per-

sons may appropriately fall under specific criminal sanc-

tions, our judicial system should not turn a blind eye to

the requirements of proof so as to arduously fit their con-

duct into ill-fitting, inappropriate offenses, for which in-

adequate notice has been given. The petitioner submits

R 7

that he has suffered a denial of due process of law.

Therefore, his petition for a writ of certiorari should be

granted.

Respectfully submitted,

RONALD G. MORGAN

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

Counsel of Record

BERNARD E. DOYLE, JR.

Major, Office of The Judge

Advocate General

United States Air Force

August 1990 Attorneys for Petitioner

APPENDICES

la

APPENDIX A

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 27212

UNITED STATES

V.

Senior Airman MArc A. DUMFORD,

FR 531-86-7033, United States Air Force

Sentence Adjudged 22 Aug. 1988

Decided 3 May 1989

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Major Mark R. Bell.

Appellate Counsel for the United States: Colonel Joe

R. Lamport, Lieutenant Colonel Robert E. Giovagnoni

and Captain Morris D. Davis.

Before HODGSON, HOLTE AND PRATT, Appellate

Military Judges.

DECISION

HODGSON, Chief Judge.

In December 1987, while stationed at Fort Carson,

Colorado, the appellant was diagnosed as being infected

by the Human Immunodeficiency Virus (HIV). HIV is

the virus that causes Acquired Immunodeficiency Disease

Syndrome (AIDS). The appellant was flown to the Wil-

2a

ford Hall Medical Center on 1 February 1988, and given

an orientation about HIV and the nature of the infection.

On 4 and 5 February, the appellant was given a “safe

sex”’ briefing and ordered to:

(1) Inform sexual partners that he is HIV positive

prior to engaging in sexual intercourse;

(2) Use proper methods to prevent the transfer of

body fluids during sexual relations including the

use of condoms; and

(3) In the event he required emergency care, inform

personnel responding to the emergency that he

is HIV positive.

The appellant acknowledged he understood the order and

agreed to inform any sexual partners of his condition

prior to sexual activity and would use protective meas-

ures during sexual intercourse.

That same day, 5 February, while on pass from the ©

hospital, the appellant met a girl at the Non-commissioned

Officer’s Club and later engaged in sexual intercourse

with her. He did not tell her he was HIV positive nor

did he use protective measures during their sexual rela-

tions.

Based on the above facts, the appellant entered an

unconditional guilty plea to disobeying the “safe sex”

order by not informing his partner of his condition and

not using protective measures, as well as to aggravated

assault. The approved sentence extends to a dishonor-

able discharge, confinement for two years, total forfei-

tures, and reduction to airman basic; the sentence ad-

judged was less than that negotiated in the pretrial

agreement.

While none of the errors urged on appeal warrant

setting aside the appellant’s conviction, a discussion of

some is justified.

3a

I

The appellant contends that the “safe sex” order he

disobeyed was illegal as it was overly broad and over-

reaching and did not relate to any recognized military

duty. He maintains he is entitled to have consensual

heterosexual intercourse with anyone he chooses so long

as both parties are unmarried. He points out that his

partner was not a n.ilitary member, the encounter took

place off-base, and suppressing his lawful sexual activ-

ity to “demonstrate good faith to the community” lacks

any relationship to military duty or the maintenance of

good order and discipline. The appellant acknowledges

that the military’s interest in protecting the health and

welfare of the military community is unquestioned, but

argues that “protecting every civilian in the world from

a military AIDS carrier stretches a valid military inter-

est beyond the point of adequately protecting the rights

of the individuals.”

Of course, the critical question before us is the law-

fulness of the “safe sex” order. An order is presumed

to be lawful and an accused has the burden of showing

the converse. United States v. Smith, 21 U.S.C.M.A. 231,

45 C.M.R. 5 (1972). In this case the lawfulness of the

order was not contested at trial, as the appellant pleaded

guilty. In the majority of trials it is necessary to con-

test the validity of the order in the trial forum so that

the factual and legal basis for it can be developed in the

record. Here the appellant chose not to do so. However,

an order that is patently unlawful may be contested for

the first time on appeal. The order given the appellant

was designed to halt the spread of a fatal disease for

which there is no cure presently known. On its face the

order is valid and enforceable, and if the appellant

thought otherwise he should have asserted his claim at

trial. Because he made no objection at trial on this

ground, the assigned error is not preserved for appeal.

United States v. Wine, 28 M.J. 688 (A.F.C.M.R.1989) ;

4a

United States v. Ashley, 48 C.M.R. 103 (A.F.C.M.R.

1973).

We cannot let stand unchallenged appellate defense

counsel’s claim that there is no “valid military interest’

in requiring a military member who has the HIV to in-

form potential sexual partners, civilian or military, of

this fact. Military installations are a part of our society

and as we observed in United States v. Householder, 21

M.J. 618, 614 (A.F.C.M.R.1985); pet. denied 22 M.J.

339 (1968) :

All of the armed services make a concerted effort to

become part of and to be accepted in the surrounding

civilian community. To this end military installa-

tions enthusiastically support charity drives, com-

munity projects and local civic organizations, and

by so doing strengthen the bond between the de-

fenders and those being defended.

This bond between the armed services and the civilian

population would quickly become dangerously frayed if

the military took the position that it had no obligation

to attempt to prevent the spread of AIDS in the nation at

large. An order requiring a servicemember to inform

his sexual partners, civilians or military, that he is in-

fected with HIV and to protect them from any contact

with body fluids and excretions is a lawful exercise of a

superior’s command authority. United States v. Womack,

27 M.J. 630 (A.F.C.M.F.1988); pet. granted, 28 M.J.

247 (1989)

II

Appellate defense counsel next contend that the aggra-

vated assault allegation was the “ultimate offense” re-

sulting from the appellant’s conduct. It is postulated that

since the appellant’s failure to tell his sexual partner that

he was infected with the HIV coupled with the non-use

of protective measures could result in an aggravated as-

sault conviction (see United States v. Johnson, 27 M.J.

5a

798 (A.F.C.M.R.1988)), the order given to him by Wil-

ford Hall medical personnel was nothing more than an

exhortation to obey the law. Accordingly, the appellant

can only be punished within the limits of the “ultimate

offense,” here aggravated assault, and the punishment for

the disobedience allegation must be disregarded. See

United States v. Bratcher, 18 U.S.C.M.A. 125, 39 C.M.R.

125 (1969). Hence the permissible confinement in this

case would be three years, the maximum allowed for ag-

gravated assault.

In United States v. Pettersen, Judge Cook addressed

the appellant’s position and stated:

Intellectually, this [argument] represents an exam-

ple of “closed-loop logic” which goes like this: The

order, to be legal, must relate to a military duty,

which by definition, the accused is already obligated

to perform by virtue of his military status... .

Thus if the defense argument were carried to its log-

ical end, it would eliminate enforcement of most mil-

itary orders, a condition that no military organiza-

tion could tolerate.

17 M.J. 69, 70 at n. 1 (C.M.A.1983). The appellant’s

direct and immediate defiance of the “safe sex” order

strikes at the very heart of military discipline and can-

not be condoned. The purpose of the “safe sex” order was

to halt the spread of a deadly disease, and if the appel-

lant had obeyed that order there would have been no

aggravated assault allegation. The offenses are separate

and distinct and each could be charged.

In this same light the appellant also maintains that

the two offenses are multiplicious for findings. We dis-

agree. The allegations are not identical crimes, one is

not the lesser included offense of the other, and the con-

viction on either does not involve inconsistent findings

of fact. United States v. Lambert, 17 M.J. 1773

(A.F.C.M.R.1983). Applying the guidelines that Chief

6a

Judge Everett set out in United States v. Doss, 15 M.J.

409 (C.M.A.1983), we see no basis to grant the relief

sought. -

The appellant next asserts that his guilty plea to ag-

gravated assault was improvident because his partner

consented to the sexual activity. As in United States v.

Johnson, supra, we find this argument unpersuasive. Ad-

dressing the same claim in Johnson, Senior Judge Kastl

wrote:

In the first place, the victim’s “consent” was unin-

formed; {the victim] did not know his partner was

infected. Furthermore, regardless of consent, 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. We too find no valid consent

here: Whatever the degree of assent to sexual by-

play between the individuals, there was no approval

by the victim to the transmission of the AIDS dis-

ease. (Citations omitted).

27 M.J. 798, 803. We reach the same conclusion here and

hold that the victim did not consent to the appellant’s

conduct. The guilty plea was provident.

IV

The remaining assigned error is decided against the

appellant. United States v. Fields, 17 M.J. 1070

(A.F.C.M.R.1984) ; see also Satterfield v. Drew, 17 M.J.

269 (C.M.A.1984). For the reasons stated the findings

of guilty and the sentence are

AFFIRMED.

Judges HOLTE and PRATT concur.

7a

APPENDIX B

U.S. COURT OF MILITARY APPEALS

No. 63,033

ACM 27212

UNITED STATES,

Appellee,

Vv.

Marc A. DuMForRD, Senior Airman,

U.S. Air Force,

Appellant.

May 10, 1990

For Appellant: Colonel Richard F. O’Hair and Cap-

tain Bernard E. Doyle, Jr.

For Appellee: Colonel Joe R. Lamport, Major Terry

M. Petrie, and Captain Morris D. Davis.

PER CURIAM:

Appellant stands convicted, pursuant to his pleas, of

two specifications: Willifully disobeying the command of

a commissioned officer not to engage in sexual activity

without informing his partner that he was infected with

the Human Immunodeficiency Virus (HIV) and taking

precautions against spreading the virus; and assault with

a means likely to produce death or grievous bodily harm,

in violation of Articles 90 and 128, Uniform Code of Mil-

itary Justice, 10 USC §§ 890 and 928, respectively. We

Re

granted his petition for review' to determine whether

the order was overbroad. After considering the contents

of the order and the context of the violation, we uphold

the decision of the Court of Military Review. 28 MJ 836

(1989).

In United States v. Womack, 29 MJ 88, 89 (CMA

1989), we concluded that, in general, issuing a “safe sex”

order to a servicemember infected with HIV, which “is

a progenitor to the Acquired Immune Deficiency Syn-

drome (AIDS) disease,” is a valid exercise of military

authority. The order here is similar in content to the one

challenged in Womack. It is equally clear, definite, and

certain as to its requirements. The only question is

whether a valid military necessity existed as to scope be-

cause the order required appellant to warn civilians as

well as servicemembers.

In Womack the sexual activity consisted of an act of

nonconsensual homosexual sodomy with a fellow service-

member. Because the armed forces have an interest in

preserving the health and readiness of their servicemem-

bers, the order there had a clear military purpose. See

also United States v. Negron, 28 MJ 775, 778 (ACMR),

aff'd, 29 MJ 324 (CMA 1989).

Appellant argues that, as applied to consensual, non-

deviant, sexual intercourse with a female civilian, the

order restricts his personal rights. However, as we noted

in Womack, many states have enacted statutes limiting

the personal liberties of those persons who carry HIV,

statutes which are far more restrictive than the present

order. 29 MJ at 90. This order did not prohibit sexual

contact; rather, it set forth terms under which appellant

could enage in such activities. Thus, even to the extent

that the order may have limited appellant’s freedom, it

* We construe the issue presented by appellant as asserting that

the specification does not state an offense, rather than suggesting

that he had a valid defense to the crime.

EO EE

9a

is not so broadly drawn as to warrant invalidating the

order.

Appellant’s argument that the order lacks any valid

military purpose is without merit. In United States v.

Stewart, 29 MJ 92 (CMA 1989), we took note of the

dangers of unprotected sexual intercourse by those in-

fected with HIV. Consequently, we are certain that,

when a servicemember is capable of exposing another

person to an infectious disease, the military has a legiti-

mate interest in limiting his contact with others, includ-

ing civilians, and otherwise preventing the spread of that

condition. See United States v. Johnson, 30 MJ 53 (CMA

1990) .*

The decision of the United States Air Force Court of

Military Review is affirmed.

2 We have absolutely no doubt that preventing a servicemember

who has HIV from spreading it to the civilian population is a public

duty of the highest order and, thus, is a valid military objective.

It is clear to us that such conduct could be found to be service-

discrediting. Art. 134, Uniform Code of Military Justice, 10 USC

§ 934; see also United States v. Woods, 28 MJ 318-19 (CMA 1989).

©. &. GOVERNMENT reiNTiNG Orrice, 1990 272142 62099