Petition for Writ of Certiorari — Pritchard v. United States

| j Supreme 4

FELED

961751 MAY 2 1997

Noepict Of IHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CARINEL PRITCHARD, JR., SPECIALIST,

United States Army, PETITIONER

Vv.

THE UNITED STATES OF AMERICA, RESPONDENT

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

JOHN T. PHELPS II

Colonel, Judge

Advocate General’s Corps (JA)

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

(703) 681-3580

Counsel of Record

and

MICHAEL L. WALTERS JOHN M. HEAD

Lieutenant Colonel, JA Captain, JA

United States Army United States Army

LESLIE A. NEPPER T. MICHAEL GUIFFRE

Major, JA Captain, JA

United States Army United States Army

QUESTION PRESENTED

Whether the federal government may require an HIV

infected individual to wear/use a condom with while having

sexual intercourse with his/her spouse?

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TABLE OF CONTENTS

RII I Sass go l

NINE Sei eee ae es Ch t |

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED ............... 2

APUEREN ET GOP SER CASE oo... c ccc vcs cnicecess 3

NMEA TE PE ooo os ek soe hk sbi cee ks 4

REASONS FOR GRANTING THE WRIT ............ 4

8 PIECE Sarai er oer wn ae sean Lene eee ae 13

APPENDIX A (Opinion of the U.S. Court of

Appeals for the Armed Forces—Pritchard) ............. la

APPENDIX B (Opinion of the U.S. Army Court of

WEEMOTY ROVIOW-—PYICHGPA) .. o.oo ccc ce nes 12a

iV

TABLE OF AUTHORITIES

United States Supreme Court

Blackledge v. Perry, 417 U.S. 21 (1974) ......... S

Bowers v. Hardwick, 478 U.S. 186 (1986) ........ 9

Griswold v. Connecticut, 381 U.S. 479

$B rr in eM KEN ne Permeneame: Ca. TS

Loving v. Virginia, 388 U.S. 1 (1967) ......... 4,6, 11

Menna v. New York, 423 U.S. 61 (1975) .......... 13

Prince v. Massachusetts, 321 U.S. 158 (1944) ..... 4

Roe v. Wade, 410 U.S. 155 (1972) ........... 5,6, 11

Skinner v. Oklahoma, 316 U.S. 535 (1942) ...... 5, 10

United States v. Broce, 488 U.S. 563 (1989) ...... 13

United States v. Olano, 507 U.S. 725 (1993) ...... 12

Other Federal Courts

United, States v. Aycock, 15 U.S.C.M.A. 158,

Per ry Re ee vk Cia ee 6 7

United States v. Carson, 15 U.S.C.M.A. 407,

Se Ns DEORE 6 oe ke ed a ek thaws 12

United States v. Green, 22 M.J. 713

EAS es Or bis bao eee a See eee 7

United States v. Johnson. 30 M.J. 53

Br RN Ps ee ee tee 8

United States v. Martin,. 1 U.S.C.M.A. 674,

oR os BOE CAO Fark ee eek ws hae ee 6

United States v. Nation, 9 U.S.C.M.A. 724,

pe EE) Re rare iene hee ae 7

United States v. Negron, 28 M.J. 775 (A.C.M.R.),

OF a, £9 MI. FAG A, TO ohio 5s bh SS8eskes &~9

United States v. Pritchard, Army 930168 (Army

Ct. Crim. App. March 31, 1995)(unpub.) .......... 3

United States v. Pritchard, 43 M.J. 361

CR rae ic i a's SPS Sawa Ow Ge hae eww wees 3

United States v. Pritchard, 45 M.J. 126

RIPE 6b + CL ba Oa Sew EE AEOL He Rein Passim

United States v. Pritchard, 45 M.J. —

LEP E TORS © 5 ooo ok cS UREA LA REA 3

United States v. Stewart, 29 M.J. 92

CAA OR as s

United States v. Trani, 3 C.M.R. 27

C6 5 les SEE So oe aks Bea es ee ee 11~—12

United States v. Womack, 27 M.J. 630

(A.F.C.M.R. 1988), aff’d, 29 M.J. 88

A TO ee ee oe 7

United States v. Womack, 29 M.J. 88

COTE I oe ra ea 8-9

United States v. Wysong, 9 U.S.C.M.A. 244,

a Me BP TOR: SHER a Ege COR RAKES 7

United States v. Young, 6 M.J. 975

Eh cde SPOS ca os 5 each eee ies bees 12

State Courts

Doe v. Coughlin, 518 N.E.2d 536

(N.Y. 1987), cert. denied, 488 U.S. 879 (1988) ... .9-10

Constitution and Statutes:

Article 90, Uniform Code of Military Justice,

AF Seok PO 6 0'o.b Si eee ee eeen nd ce eee

vi

Article 125, Uniform Code of Military Justice,

SUR A. SRGS .v0sweeviaviacnd severe was 3

Article 128, Uniform Code of Military Justice,

Le a SE a o's 8 ako be eee Fae ee eres 3

28 United States Code § 1259(2)(Supp. 1992) ..... 2

Other Authorities:

Army Reg. 600-110 citation from footnote 1

CRE AY on cy heed Obed OA ORE CES i, 15

Manual for Courts-Martial, United States, 1984

FOtORIND 65, PAM EY, isis sok s Sab awks ee

Winthrop, Military Law and Precedents

(a0 OG... SUC0P bcd oh es kaw side pea ken wees ces 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CARINELA. PRITCHARD, SPECIALIST,

United States Army, PETITIONER

Vv.

THE UNITED STATES OF AMERICA, RESPONDENT

Petition for a Writ of Certiorari to the

States Court of Appeals for the Armed Forces

PETITION FORA WRIT OF CERTIORARI

Petitioner, Carinel L. Pritchard, respectfully prays that a

writ of certiorari issue to review the decision of the United

States Court of Appeals for the Armed Forces entered in this

proceeding.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Armed Forces [hereinafter Court of Appeals] is reported at 45

M.J. 126 (1996) (Appendix A). The opinion of the United

States Army Court of Criminal Appeals [hereinafter Army

court] is unpublished (Appendix B).

JURISDICTION

The judgment of the Court of Appeals for the Armed

Forces was entered on September 24, 1996. The Court of

Appeals granted in part and denied in part petitioner’s

Request for Reconsideration on February 5, 1997. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1259(2) (Supp. 1992).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The following provisions of the Uniform Code of

Military Justice involved in this case provide in pertinent part:

Article 90 10 U.S.C. § 890.

“Any person subject to this chapter who—

(1) strikes his superior commissioned officer or

draws or lifts up any weapon or offers any violence

against him while he is in the execution of his

office;

or

(2) willfully disobeys a lawful command of his

superior commissioned officer;

shall be punished, if the offense is committed in

time of war, by death or such other punishment as a

court-martial may direct, and if the offense is

committed at any other time, by such punishment,

other than death, as a court-martial may direct.”

The following provision of the Manual for Courts-Martial,

United States, 1984, are involved in this case:

Paragraph 14, Part IV(2)(a)(iii).

The order must relate to military duty, which

includes all activities reasonably necessary to

accomplish a military mission, or safeguard or

promote the morale, discipline, directly connected

with the maintenance of good order in the service.

The order may not, without such a valid military

purpose, interfere with private rights or personal

affairs. ...

ee eT

Paragraph 14, Part IV(2)(a)(iv).

The order must not conflict with the statutory or

constitutional rights of the person receiving the

order.

STATEMENT OF THE CASE

On September 23, 1993, Specialist Pritchard was tried at

Fort Drum, New York, before a military judge sitting as a

general court-martial. Pursuant to his pleas, petitioner was

found guilty of willful disobedience of a lawfvl order,

sodomy, and aggravated assault, in violation of Uniform Code

of Military Justice articles 90, 125, and 128, 10 U.S.C. §§

890, 925, and 928 (1988), respectively. The military judge

sentenced Specialist Pritchard to a dishonorable discharge,

three years confinement, forfeiture of all pay and allowances,

and reduction to the grade of Private El. The convening

authority approved the sentence as adjudged.

On March 31, 1995, the Army Court of Criminal Appeals

[hereinafter Army court] affirmed the findings and sentence in

an unpublished opinion. United States v. Pritchard, Army

930168 (Army Ct. Crim. App. March 31, 1995) (unpub.)

(Appendix B.)

On September 8, 1995, the United States Court of Appeals for

the Armed Forces granted Specialist Pritchard’s Petition for

Grant of Review and Specified the following issue:

WHETHER THE GOVERNMENT CAN LEGALLY

ORDER AN HIV INFECTED INDIVIDUAL TO

WEAR/USE A CONDOM WHEN ENGAGING IN

SEXUAL INTERCOURSE WITH HIS/HER

SPOUSE

United States v. Pritchard, 43 M.J. 361 (1995)(journal).

The Court of Appeals rendered its opinion on September

24, 1996, affirming the findings and sentence. United States v.

Pritchard, 45 M.J. 126 (1996) (Appendix A). On October 10,

1996, petitioner moved the Court of Appeals for

Reconsideration. On February 12, 1997, the Court of Appeals

granted the motion in part and denied the motion in part.

United States v. Pritchard, 45 M.J. — (1996)(journal).

STATEMENT OF FACTS

A summary of the facts found by the Army court and

adopted by the Court of Appeals is as follows:

The charges arose after the appellant tested positive

for the Human Immunodeficiency Virus (HIV).

Immediately upon being notified of his illness, and

on two subsequent occasions, appellant was

counseled by medical personnel concerning the

nature of the disease and his responsibility to

prevent transmission of the infection to others:

Appellant signed the written counseling form used

to detail this information. Appellant’s commander

subsequently issued a “safe sex” order. The written

order incorporated the earlier medical counseling

and warned that violations of either could result in

punitive action.

United States v. Pritchard, 45 M.J. at 128.

Pursuant to his plea, petitioner was convicted, inter alia,

of willful disobedience of his commander’s order by not

wearing a condom while engaging in sexual intercourse with

his wife.

REASONS FOR GRANTING THE WRIT

a. The order requiring Specialist Pritchard to wear a

condom while engaging in sexual intercourse with his wife

impermissibly intrudes upon Specialist Pritchard’s right

to marital privacy and right to procreate.

rsa a a as rr ca

This Court has recognized that, while not expressly

mentioned in the Bill of Rights, certain “penumbral” rights

exist under the Constitution of the United States. See e.g.

Loving v. Virginia, 388 U.S. 1 (1967) (marriage); Prince v.

Massachusetts, 321 U.S. 158 (1944)(family relations);

Skinner v. Oklahoma, 316 U.S. 535 (1942)(procreation). The

marital relationship has historically been found to lie within

the zone of privacy embraced within the guarantees in the Bill

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

“Marriage is a coming together for better or for worse,

hopefully enduring, and intimate to the degree of being

sacred.” /d., 381 U.S. at 486. Where such fundamental rights

are involved, regulations limiting or interfering with those

rights may only be justified by a compelling governmental

interest narrowly drawn to further that governmental interest.

Roe v. Wade, 410 U.S. 155 (1972).

The Court in Griswold had to determine the

constitutionally of a Connecticut statute which made it

unlawful for any person to use any drug or article to prevent

conception. The Executive Director of a Planned Parenthood

League Center and several others were arrested for violating

the statute after a married female was examined and

prescribed a contraceptive. The Court opined that the case

involved a relationship lying within the zone of privacy

created by several fundamental constitutional guarantees. The

Court explained that governmental purposes to control or

prevent activities may not be achieved by means which sweep

unnecessarily broadly and thereby invade the area of

protected freedoms. The Griswold Court recognized that the

Statute in question would have “operate[d] directly on an

intimate relation of husband and wife.” /d. at 482.

In Loving, Virginia had adopted a statute that sought to

prevent interracial marriages. The Virginia Supreme Court of

Appeals had held that the statute could withstand a Fourteenth

Amendment challenge because members of the Caucasian

race and the Negro race were equally restricted. This Court

disagreed. The statute was struck down, in part, because it

resulted in invidious racial discrimination. However, in

reaching its conclusion, the Loving Court reasoned that

marriage is one of the basic civil rights of man, and could not

be infringed upon without a narrowly tailored statute

promoting a compelling government interest. The statute in

Loving lacked a valid legislative objective. 388 U.S. at 11.

The Roe Court reviewed the constitutionality of a Texas

Statute prohibiting the procurement or the performance of an

abortion, unless the abortion was needed to save the mother’s

life. In upholding the woman’s qualified right to terminate her

pregnancy, the Court applied the “strict scrutiny” test. The

“strict scrutiny” test demands that laws seeking to limit

“fundamental rights” be aimed at promoting a compelling

governmental interest and that the law must be narrowly

tailored to achieve that interest.

The standard of “strict scrutiny” must be applied in this

case because the order in issue seeks to regulate the most

intimate decisions between spouses. Thus, the issue is

whether the order is a narrowly tailored remedy that seeks to

further a compelling governmental interest.

Commanders have the authority to regulate all activities

reasonably necessary to safeguard and protect the morale,

discipline, and usefulness of their commands. United States v.

Martin, 1 U.S.C.M.A. 674, 5 C.M.R. 102 (1952). However, this

authority is limited. The parameters for lawful orders are as

follows:

The order must relate to military duty, which

includes all activities reasonably necessary to

accomplish a military mission, or safeguard or

promote the morale, discipline, directly connected

with the maintenance of good order in the service.

The order may not, without such a valid military

purpose, interfere with private rights or personal

affairs. .. . The order must not not conflict with the

statutory or constitutional rights of the person

receiving the order.

Manual for Courts-Martial, United States, (1984), para.

14c(2)(a)(iii) and (iv).

It was not necessary or constitutionally permissible for

the commander to give a soldier an order to have “safe sex”

with his or her spouse. Specialist Pritchard had previously

been counseled by medical personnel concerning the dangers

of spreading the disease by having unprotected sex. Thus, the

order was redundant with the medical counseling. Moreover,

as applied to a married soldier and that soldier’s private

marital relationship, an order to have “safe sex” lacks a valid

military purpose.

Orders that are excessively broad in scope or which

needlessly abridge personal rights are subject to close judicial

scrutiny and may be found to be invalid and unenforceable.

United States v. Womack, 27 M.J. 630, 633 (A.F.C.M.R. 1988)

aff’d, 29 M.J. 88 (C.M.A. 1989); United States v. Green, 22

M.J. 713, 716 (A.C.M.R. 1986)(regulation prohibiting

soldiers from having alcohol in their system or on their breath

held to be arbitrary, unreasonable, and standardless, and thus

invalid and unenforceable); see also United States v. Aycock,

15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964)(order prohibiting

accused from contacting principal witnesses concerning

criminal charges against him held invalid as unlawfully

hampering defense preparation for pending judicial

proceedings); United States v. Wysong, 9 U.S.C.M.A. 244, 26

C.M.R. 29 (1958)(order prohibiting accused from speaking

with soldiers concerning an on-going investigation directed at

accused’s family held invalid on grounds that it was vague,

indefinite, and an impermissible restriction on accused’s

freedom of speech); United States v. Nation, 9 U.S.C.M.A.

724, 26 C.M.R. 504 (1958)(regulation requiring six-month

waiting period before consideration of application to marry

alien held to be overboard, unreasonable, and unenforceable).

Generally, a “safe sex” order given to a soldier who has

tested HIV positive has been held to be a valid exercise of

authority by commanders for the purpose of preserving the

health and readiness of servicemembers. United States v.

Womack, 29 M.J. 88, 89 (C.M.A. 1989); United States v. |

Negron, 28 M.J. 775, 778 (A.C.M.R.), aff’d, 29 M.J. 324

(C.M.A. 1989). The Court of Appeals for the Armed Forces

held that such orders may also permissibly restrict a

servicemember’s sexual contacts with civilians as the military

has a legitimate interest in preventing the spread of an

infectious disease. United States v. Johnson, 30 M.J. 53

(C.M.A. 1990); United States v. Stewart, 29 M.J. 92 (C.M.A.

1989). However, to the extent that such an order purports to

relate to Specialist Pritchard’s relations with his wife, the

order in this case exceeds the authority of the commander

because it invades the Specialist Pritchard’s constitutionally

protected zone of privacy in his marital relationship.

Clearly, the health interest is to avoid the proliferation of

HIV. Even if preventing the spread of HIV is determined to be

a compelling governmental interest, the order to use a condom

with the servicemember’s spouse is still flawed because it is

not narrowly tailored. The order itself adds little or nothing to

the furtherance of the government’s public health objectives.

If one considers the constitutional question in terms of the

reasonableness of the order rather than the nature of the

disobedience, one has to evaluate the vital health interests

sought to be protected. United States v. Womack, 27 M.J. at

632. Medical personnel had already counseled Specialist

Pritchard about the need to use a condom while having sex

and the need to inform his sexual partners that he was HIV

positive. (Prosecution Exhibit 1)

In Negron, the Army court recognized that the paramount

consideration (public health interest) for “safe sex” order was

to “establish a reasonable, common sense requirement for

notice” to persons potentially involved with the HIV positive

soldier on an intimate basis. 28 M.J. at 778 (quoting United

States v. Womack, 27 M.J. at 633).

In cases where the servicemember is single, the order

may be needed because potential sex partners are not readily

identifiable to the medical personnel. In those cases, the

soldier must arguably bear the burden of notification because

the persons potentially at risk are unknown to the government.

Those cases are also distinguishable from this case because

not all sexual relations outside of the marriage are viewed as

being the “penumbral rights” protected by the Constitution.

United States v. Womack, 27 M.J. at 632. See also, Bowers v.

Hardwick, 478 U.S. 186 (1986)(engaging in homosexual

sodomy is not protected by the constitutional zone of

privacy).

However, in the cases where the HIV positive

servicemember is married, there is a reasonable certainty that

the servicemember may engage in marital sexual relations

with his or her spouse. In addition, the identity of the spouse

is readily available to the government as the spouse is listed

as a dependent of the servicemember.

The order to use a condom directly impacts upon the

intimate relationship of a husband and wife. Any argument

that the government already regulates marriages through laws

designed to protect one spouse from violence perpetrated by

the other misses the issue. An HIV positive solder engaging in

unprotected and uninformed sex is already addressed by the

Statute prohibiting aggravated assault. The order to have “safe

10

sex” adds little or nothing to the attainment of the

government’s objective.

Doe v. Coughlin, 518 N.E.2d 536 (N.Y. 1987), cert.

denied, 488 U.S. 879 (1988), is clearly distinguishable from

this case. In Doe, an HIV positive individual was a prison

inmate who had been denied participation in a special prison

program that allowed inmates to have conjugal visits with |

their spouses. The decision in Doe held that the inmate and

his wife had no legitimate expectation of conjugal visits and

the right to such visits was not protected by the Constitution.

In this case, the Petitioner was not in jail and was cohabitating

with his wife.

Once the government starts to directly regulate how

married individuals relate to each other within the confines of

that relationship, there is a significant danger that

constitutionally protected freedoms will be infringed upon.

Griswold. The order here fails because it invades private

marital decisions. Government mandated use of a condom

could possibly have numerous long lasting, adverse effects on

Specialist Pritchard’s marital relationship. For example, the

impact of the order could supersede decisions by the couple as

to whether they want to attempt to procreate, notwithstanding

the medical condition of Specialist Pritchard. Even if the

couple did not want to have children now, the order forecloses

the option for the couple to change their mind and attempt to

do so at any time in the future. The order is the functional )

equivalent of the Oklahoma sterilization statute declared

unconstitutional in Skinner. Petitioner is de facto sterilized by

the government as he is not allowed to engage in unprotected

sex with his wife for the purposes of procreation.

Prompt notice to the spouse through medical channels

satisfies the governmental health care interests. Such

disclosure is best handled by medical personnel. Medical

personnel are best equipped to answer the likely questions

1]

concerning the transmission of the disease, the need for

testing, and other health implications associated with having

an HIV positive spouse. Once the spouse is informed, and the

corresponding support and medical attention is provided, the

government has performed the acts reasonably necessary and

likely to prevent the spread of the disease.

Specialist Pritchard’s fundamental rights are not rendered

null and void solely because of his status as a member of the

Armed Forces. Nor are his constitutional rights eviscerated

because of his medical condition. The order in this case is an

unnecessary and impermissible intrusion into the most

intimate and private affairs a married couple could possibly

have: how to conduct their sexual relationship. In Griswold,

the state interest in promoting conception ran afoul of the

constitutionally protected zone of privacy created by the

marital relationship. The order here suffers an analogous

constitutional infirmity. In essence, the case sub judice is the

mirror image of Griswold, except here the government is

requiring a married couple to use contraception.

The order here, like the statutes in Loving, Griswold, and

Roe, constitutes a governmental intrusion into the private

decisions implicit in the marital relationship. Providing advice

to the spouse of the HIV infected soldier through medical

channels satisfies the government’s health concerns without

impermissibly interfering with the fundamental rights of

married couples. The rational connection between the

commander’s order and the recognized health care concerns is

far too indirect and attenuated for the government to prevail in

this case.!

‘Army Regulation 600-110, Identification, Surveillance, and

Administration of Personnel Infected with Human Immunodeficiency

Virus, para. 6-8 (11 March 1988)(Change 1, 22 April 1994), requires

notice to spouses by a physician. This regulation constitutes a rationally

related means of promoting the government’s health care concerns without

broadly interfering with marital relations.

12

b. The Court of Appeals erroneously disposed of the speci-

fied issue by holding that the accused waived consideration

by his plea of guilty and applied a plain error analysis.

An order which is not “palpably illegal” on its face is

clothed with a presumption of legality. United States v. Trani,

3 C.M.R. 27, 31 (C.M.A. 1952) (citing Winthrop, Military

Law and Precedents (2d ed. 1920)). However, when a strong

showing is made indicating the order is unlawful, the

presumption vanishes, and the issue of lawfulness must be

determined as an interlocutory question by the military judge.

Id.; United States v. Young, 6 M.J. 975 (A.C.M.R. 1979). In

determining the legality of an order, this Court has held that,

“whether an act comports with law, that is, whether it is legal

or illegal, is a question of law, not an issue of fact... .”

United States v. Carson, 15 U.S.C.M.A. 407, 408, 35 C.M.R.

379, 380 (1965).

The military judge in the case sub judice, was faced with

a “palpably illegal” order as it applied to the spouse, because

it was unconstitutional, as discussed above. The military

judge recognized the constitutional implications of the order.

(R. at 85). As it is a “palpably illegal” order, the military

judge had a sua sponte duty to dismiss the offense.

When the Court of Appeals initially dealt with the

specified issue, it applied the waived by guilty plea doctrine

and held “[t]he final, specified, issue concerns the propriety of

appellant’s conviction for having unprotected sodomy with his

wife in violation of this commander’s safe-sex order

(Specification 2 of Charge I).” United States v. Pritchard, slip

op. at 12 (September 24, 1996)(emphasis added). After

granting, in part, petitioner’s motion for reconsideration, the

court corrected the language regarding sodomy to properly

refer to unprotected intercourse, the court below applied a

waiver by guilty plea/plain error standard and found no plain

error. Pritchard, 45 M.J. at 131 (citing United States v. Olano,

13

507 U.S. 725, 732-735 (1993)). This was error as the issue is

not waived by a plea of guilty, but addresses the ability of the

government to bring petitioner to trial at all.

An attack on the constitutionality of the order the

violation of which petitioner is convicted, is not waived by a

guilty plea. Blackledge v. Perry, 417 U.S. 21 (1974); Menna v.

New York, 423 U.S. 61(1975)(per curiam). Emphasizing

Menna’s holding that “a plea of guilty to a charge does not

waive a claim that—judged on its face—the charge is one

which the State may not constitutionally prosecute,” this

Court limited the doctrine to cases in which the judge could

determine at the time of accepting the plea, from the face of

the charge or from the record, that the government lacked the

power to bring the charge. United States v. Broce, 488 U.S.

563, 573 (1989) (quoting and emphasizing Menna, 423 U.S.

at 63 n. 2, 96 S.Ct. at 242 n. 2). Under this trilogy of cases,

the question of whether the order and, therefore, its enforcing

statute, is lawful, is jurisdictional and cannot be waived.

The necessity to rectify the Court of Appeals’ failure to

protect the constitutional rights of petitioner because of its

misapplication of law, warrants the exercise of this Court’s

appellate jurisdiction.

CONCLUSION

The Court of Appeals applied the wrong standard of

review to this issue of basic constitutional rights. The order by

appellant’s commander is palpably illegal and an unnecessary

and impermissible intrusion into the marital relationship.

Therefore, using Article 90, Uniform Code of Military Justice,

10 U.S.C. § 890, to enforce it, renders the enforcing statute

unconstitutional as applied.

Finally, the issue is likely to reappear. Current regulatory

practice requires the issuance of safe sex orders to HIV

14

infected soldiers. See Army Regulation 600-110, supra note

1. In the interest of justice this Court must address the issue

and prevent future injustice.

For the foregoing reasons, this Court should grant review

of the judgment of the United States Court of Appeals for the

Armed Forces.

Respectfully submitted,

JOHN T. PHELPS II

Colonel, Judge Advocate General’s Corps (JA) |

United States Army |

Defense Appellate Division |

U.S.Army Legal Services Agency |

5611 Columbia Pike

Falls Church, VA 22041

(703) 681-3590

Counsel of Record

and

MICHAEL L. WALTERS |

Lieutenant Colonel, JA

United States Army

LESLIE A. NEPPER

Major, JA

United States Army

JOHN M. HEAD

Captain, JA

United States Army

T. MICHAEL GUIFFRE

Captain, JA

United States Army

May 1997

CE

la

APPENDIX A

UNITED STATES, Appellee

Ve

Carine] PRITCHARD, Jr., Specialist

U.S. Army, Appellant

No. 95-0945

Crim. App. No. 9301648

United States Court of Appeals for the Armed Forces

Argued March 27, 1996

Decided Sep. 24, 1996

Counsel

For Appellant: Captain Walter R. Dukes (argued); Colonel

Stephen D. Smith, Lieutenant Colonel John T. Rucker, Major

J. Frank Burnette (on brief).

For Appellee: Captain Kenneth D. Albert (argued); Colonel

John M. Smith, Lieutenant Colonel Eva M. Novak, Major

Anthony P. Nicastro, Captain Eugene E. Baime (on brief).

Military Judge: Robert D. Newberry

Opinion of the Court

SULLIVAN, Judge:

On September 23, 1993, appellant was tried by a military

judge sitting alone as a general court-martial at Fort Drum.

New York. Pursuant to his pleas, he was found guilty of

willfully disobeying a lawful order (3 specifications), sodomy,

and aggravated assault (2 specifications), in violation of

Articles 92, 125, and 128, Uniform Code of Military Justice,

10 USC §§ 892, 925, and 928, respectively. The military judge

sentenced him to a dishonorable discharge, confinement for 3

2a

years, total forfeitures, and reduction to the lowest enlisted

pay grade. On December 22, 1993, the convening authority

approved the sentence. On March 31, 1995, the Court of

Criminal Appeals affirmed in an unpublished opinion.

On September 8, 1995, this Court granted review on the

following question of law:!

WHETHER, ASSUMING, ARGUENDO, THAT

CAPTAIN HEAP’S ORDER DID INCLUDE THE

PROHIBITION AGAINST ENGAGING IN

SODOMY WITHOUT A CONDOM,THIS ORDER

WAS NOT A LAWFUL MILITARY ORDER.

We also specified the following question for review:

'We heard oral argument in this case at the United States Military

Academy at West Point, New York, on March 27, 1996, at the invitation of

the Department of Law, United States Military Academy, and without

objection from the parties involved. See Foundation of the Federal Bar

Association, Equal Justice Under Law: The Supreme Court in American

Life 15—18 (1965); see also O’Brien, Storm Center: The Supreme Court in

American Politics 78, 135-40 (2d ed. 1990). This procedure is similar to

the well-established practice of the United States Court of Appeals for the

Eighth Circuit which holds hearings at various law schools within its

circuit.

The United States Court of Appeals for the Armed Forces conducts a

hearing such as this outside its permanent courthouse in Washington, D.C.,

as part of its “Project Outreach,” a public awareness project which

demonstrates not only the operation of a Federal appellate court but also

the quality and effectiveness of the criminal justice system of our Armed

Services, the Uniform Code of Military Justice (Arts. 1-146, 10 USC

§§ 801-946, respectively). It is hoped that the thousands of students,

service persons, military and civilian attorneys, and members of the

American public who witness these hearings will realize that America is a

democracy that can maintain an Armed Force instilled with the appropriate

discipline to make it a world power and yet afford the members of that

Armed Force a fair and impartial justice system which does provide the

full protection of the Constitution of the United States and Federal law to

its members.

3a

WHETHER THE GOVERNNENT CAN LEGALLY

ORDER AN HIV-INFECTED INDIVIDUAL TO

WEAR/USE A CONDOM WHEN ENGAGING IN

SEXUAL INTERCOURSE WITH HIS/HER

SPOUSE.

We hold that the record of trial in this guilty-plea case clearly

establishes that Captain Heap gave a lawful order to appellant

to refrain from engaging in any type of sexual intercourse

including sodomy without a condom. See generally Parker v,

Levy, 417 U.S. 733, 761 (1974).

The Court of Criminal Appeals found the following facts

concerning appellant’s admitted offenses:

The charges arose after the appellant tested

positive for the Human Immunodeficiency Virus

(HIV). Immediately upon being notified of his

illness, and on two subsequent occasions, appellant

was counseled by medical personnel concerning the

nature of the disease and his responsibility to

prevent transmission of the infection to others.

Appellant signed the written counseling form used

to detail this information. Appellant’s commander

subsequently issued a “safe sex” order. The written

order incorporated the earlier medical counseling

and warned that violations of either could result in

punitive action.

Appellant pleaded guilty, inter alia, to willful

disobedience of his commander’s order by not

wearing a condom while engaging in sodomy and

for failure to advise his sodomy partner of his HIV

infection. The appellant now attacks the providence

of his plea because there is no factual basis that the

order required him to advise prospective “sodomy”

partners of his HIV status and that it did not require

him to wear a condom during the act of sodomy. We

disagree.

4a

The military judge conducted a thorough,

searching inquiry into the providence of the

appellant’s pleas of guilty. He identified and fully

explored the issue raised by appellant concerning the

wording of the order. The appellant insisted several

times during the inquiry that he understood the “safe

sex” order to include the requirement to advise

sodomy partners of his infection and to wear a

condom during sodomy. The military judge correctly

accepted the appellant’s understanding of the order.

We conclude that the military judge properly

accepted appellant’s plea of guilty. Rule for Courts-

Martial 910(e); United States v. Davenport, 9 M.J.

364 (C.M.A 1980); United States v. Care, 18

U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

Unpub. op. at 1-2.

Prosecution Exhibit 1 (Page 6 of 7), a copy of the order

given to appellant, states in part:

8. Date and Circumstances

The purpose of this command counseling is to

inform you of the DA [Department of the Army]

and command policy regarding your responsibilities

as a result of testing positive for the Human

Immunodeficiency Virus (HIV) antibody. This

counseling supplements and complements the

Preventive Medicine counseling you received.

9. Date and Summary of Counseling

I have been advised that you were counseled by

Preventive Medicine personnel concerning your

diagnosis of HIV positivity, the risk this condition

poses to your health, as well as the risk you pose to

others. You were advised by medical personnel as to

necessary precautions you should take to minimize

Sa

the health risk to others as a result of your

condition. While I have great concern for your

Situation and need, in my Capacity as commander, I

must also be concerned with, and ensure the health,

welfare, and morale of the other soldiers in my

command. Therefore, I am imposing the following

restrictions:

a. You will verbally advise all prospective

sexual partners of your diagnosed condition prior

fo engaging in any sexual intercourse. You are also

ordered to use condoms should you engage in

sexual intercourse with a partner.

b. You will not donate blood, sperm, tissues, or

other organs since this virus can be transmitted via

blood and body fluids.

c. You will notify all health care workers of

your diagnosed condition if you seek medical or

dental treatment, or accident requires treatment. If

you do not understand any element of this order,

you will address all questions to me. Failure on

your part to adhere to your Preventive Medicine

counseling or the counseling I have Just given you

will subject you to administrative separation and/or

punishment under the U.C.M.J., as I see fit.

(Emphasis added.)

Prosecution Exhibit 1 (page 4 of 7) also contains a copy

of the patient counseling advice given to appellant and

referred to above, which states.

E.Although I may have no Symptoms

presently, I may still transmit the infection

to others through sexual intercourse, sharing

of needles, donated blood or blood products,

and possibly through exposure of others to

6a

saliva through oral-genital contact or

intimate kissing. | have been informed that

transmission of HIV infection through

sexual intercourse can be avoided only

through abstinence. If I cannot abstain, then

I must engage only in protected sexual

relations (i.e. using a condom). Males must

always use a condom and females must

insist that their partners use condoms. While

the ability of condoms to prevent

transmission of infection is unproved they

may reduce the chance of transmission and I

must always use them or insist on their use

during all sexual encounters.

(Emphasis added.)

As a preliminary matter, we note that appellant initially

suggests that the order he allegedly violated did not

“constitute[] an order to advise or wear a condom while

engaging in oral sodomy.” He contends that Captain Heap’s

order only applied to acts of “sexual intercourse” that he

might engage in. He asserts that “[s]odomy is clearly a wholly

different course of conduct and cannot logically be viewed as

being encompassed within the meaning of ‘sexual

intercourse.’” Final Brief at 3 n.1. Consequently, he implies

that his orders’ conviction based on his act of oral sodomy

with H.B. (specification 1, Charge 1) cannot be lawfully

sustained. We disagree.

As a Starting point, we note that no question exists that

appellant admitted that his commander’s order included an

order to wear a condom if he engaged in oral sodomy.

Appellant acknowledged that he understood his commander’s

order to include wearing a condom during “all sexual acts.”

He further admitted that he construed his commander’s order

in light of his prior medical counseling that oral sex could

.- ge

transit HIV. Finally, a copy of the now challenged order and

an earlier Preventive Medicine Advice form admitted as part

of prosecution exhibit 1 clearly indicate that “any sexual

intercourse” for the purpose of this order includes oral

sodomy.

Nevertheless, we note that sexual intercourse is

particularly alleged in the specifications at issue* and the act

of sodomy was considered by the military judge as the basis

of one of the orders’ violations. An argument based on a

variance between the offense alleged and the offense proved

might be made in this case. See generally United States v.

Harris, 8 M.J. 52 (C.M.A. 1979). A long line of decisions by

this Court, however, rejects finding an improvident plea where

the offense pleaded to is “closely related” to the offense

charged. See United States v. Epps, 25 M.J. 319, 323 (C.M.A.

1987) (larceny/receiving stolen property); United States v.

Cooper-Tyson, 37 M.J. 481 (C.M.A. 1993) (marijuana/

SPECIFICATION 1: In that SPC Carinel Pritchard Jr., U.S. Army, having

received a lawful command from CPT Michael Heap, his superior

commissioned officer, then known by the said SPC Pritchard to be his

superior commissioned officer, to verbally advise all prospective sexual

partners [H.B.] of his diagnosed condition prior to engaging in any sexual

intercourse and to use condoms in sexual intercourse with any partner, or

words to that effect, did, at Loweville, NY, about 31 January 1993,

willfully disobey the same.

SPECIFICATION 2: In that SPC Carinel Pritchard Jr., U.S. Army,

having received a lawful command from CPT Michael Heap, his

superior commissioned officer, then known by the said SPC Pritchard to

be his superior commissioned officer, to verbally advise all prospective

sexual partners [D.P.] of his diagnosed condition prior to engaging in

any sexual intercourse and to use condoms in sexual intercourse with

any partner, or words to the effect, did, at Watertown NY, between on or

about 1 March 1993 and on or about 31 May 1993, willfully disobey the

same.

8a

methamphetamene). In this sense we conclude that failure to

wear a condom or advise a sexual partner about a

communicable disease prior to sexual intercourse is “closely

related” to failure to do the same prior to another form of

sexual connection.

In addition we note that this technical variance problem

arises for the first time on appeal. In United States v. Sell, 3

U.S.C.M.A. 202, 206 11 C.M.R. 202, 206 (1953), this Court

established a different rule for assessing the legal sufficiency

of specifications so challenged. This Court said:

Because there still remains some uncertainty

about the tests to be applied in ascertaining the

sufficiency of specifications, we believe it well to

reiterate what we have previously announced. The

rigor of old common-law rules of criminal pleading

has yielded, in modern practice, to the general

principle that formal defects, not prejudicial, will be

disregarded. The true test of the sufficiency of an

indictment is not whether it could have been made

more definite and certain, but whether it contains

the elements of the offense intended to be charged,

and sufficiently apprises the defendant of what he

must be prepared to meet; and, in case any other

proceedings are taken against him for a similar

offense, whether the record shows with accuracy to

what extent he may plead a former acquittal or

conviction. Fruthermore, when the pleadings have

not been attacked prior to findings and sentence, it

is enough to withstand a broadside charge that they

do not state an offense, if the necessary facts appear

in any form or by fair construction can be found

within the terms of the specification. For a certainty,

appellate tribunals should not permit a pleading to

9a

be challenged for the first time on appeal merely

because it is loosely drawn.

(Emphasis added.)

Admittedly, the words sodomy or oral sodomy are not

expressly included in the specification at issue before us.

However, the phrase “sexual intercourse” can be reasonably

understood to include sodomy and oral sodomy. See United

States v. Scoby, 5 M.J. 160, 166 (C.M.A. 1978); see also

Commonwealth v. Bucaulis, 373 N.E. 2d 221, 226 (Mass.

App. 1978). Moreover, such a construction is most

appropriate where other words or phrases in the specifications

Suggest a broad meaning be given the words of the safe-sex

order, i.e., “all prospective sexual partners”; “any sexual

intercourse”; “with any partner.” Finally, the general qualifier

“or words to that effect” suggests that the safe-sex order in

question is not to be considered as being alleged verbatim in

the specification. In this light, we reject any suggestion of

variance in this case as unwarranted.

Turning now to the first granted issue, appellant argues

that violations of his commander’s order to wear a condom

during sexual intercourse could not be lawfully prosecuted

under Article 90. He contends that his order constituted no

more than an exhortation not to commit a crime (aggravated

assault under Article 128), which is not within the ambit of

Article 90. See para. 14c(2)(a)(iii), Part IV, Manual for

Courts-Martial, United States, 1984 (an order given for the

sole purpose of increasing the penalty for an offense which it

is expected the accused may commit it not punishable under

this Article). He also argues, apparently on public policy

grounds, that his commander’s order was unlawful because it

purports to regulate the commission of an act that is already a

crime.

Appellant pleaded guilty to these orders’ offenses and

waived any potential defenses to them based on paragraph

10a

14c(2)(a)(ili). See RCM 910(j), Manual, supra. Moreover, we

agree with the Government that the orders admittedly violated

by appellant were specific mandates to protect military and

public health, which went far beyond exhorting him not to

commit aggravated assault. See United States v. Traxler, 39

M.J. 471, 479 (C.M.A. 1994). Finally, as for appellant’s

public policy argument, we find it specious on its face and

unsupported as a matter of law. See generally United States v.

Johnson, 30 M.J. 53, 56 (C.M.A. 1990): “[T]he military

services and society at large have a compelling interest to

ensure that those who defend the nation remain healthy and

capable of performing their duty.”

The final, specified issue concerns the propriety of

appellant’s conviction for unprotected sodomy with his wife

in violation of his commander’s safe-sex order (specification

2 of Charge 1). This question has obvious constitutional

implications, but they need not be addressed in this case. See

generally Parker v. Levy, 417 U.S. at 758-59; Griswold v.

Connecticut, 381 U.S. 479 (1965); see D. Schlueter, Military

Criminal Justice: Practice and Procedure § 2—9D (3d ed.

1992). Appellant conceded this issue at trial.

The military judge expressly stated his concern whether

“a commander can give an order to an accused to wear

condoms with his wife, because that might interfere with the

constitutionally protected right to procreate.” He also noted

that “both sides” agreed it “would be a lawful order because

of potential adverse-extremely adverse effects upon the

spouse, perhaps even the military, tangentially through

medical care that might be provided, perhaps. . . .” Finally,

appellant, on questioning by the military judge, readily agreed

that, although “a commander normally can’t interfere with

marital relations,” the military’s interest in preventing

egregious injury to his spouse and transmission of the disease

to the civilian community justified this order, so it was valid.

lla

To the extent that balancing competing interests is involved to

resolve this delicate constitutional question (see Parker v.

Levy, supra at 755), we find no plain error exists in this case.

See United States v. Olano, 507 U.S. 725, 732-35 (1993).

The decision of the United States Army Court of

Criminal Appeals is affirmed.

Chief Judge COX, Judges CRAWFORD and GIERKE.

and Senior Judge EVERETT concur.

12a

UNITED STATES, Appellee

V.

Carinel PRITCHARD, Jr., (076—-58—2134), Appellant

USCA Dkt. No. 95—0945/AR

Crim. App. No. 9301648

MANDATE

TO THE JUDGE ADVOCATE GENERAL, UNITED

STATES ARMY:

In the above-styled cause heard by the Court on March

27, 1996, it is, by the Court, this 5th day of February 1997,

ORDERED:

That the decision of the United States Army Court of

Criminal Appeals is affirmed. __ MJ — (No. 95-0945, Sept.

24, 1996).

For the Court,

/s/ Thomas F. Granahan

Clerk of the Court

SEAL

13a

APPENDIX B

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

CAIRNS, GONZALES, and RUSSELL

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist CARINEL PRITCHARD, JR..,

076-S58—2134,

United States Army, Appellant

ARMY 9301648

10th Mountain Division (Light Infantry) and

Fort Drum

R. D. Newberry, Military Judge

For Appellant: Colone! Stephen D. Smith, JAGC, Major

Michael A. Egan, JAGC (on brief).

For Appellee: Captain Anthony P. Nicastro, JAGC, Captain

Eugene E. Baime, JAGC (on brief).

31 March 1995

MEMORANDUM OPTNION

CAIRNS, Senior Judge:

In accordance with his pleas, the appellant was found

guilty by a military judge setting as a general court-martial of

three specifications of willfully disobeying an order of a

Superior commissioned officer, two specifications of

aggravated assault, and one specification of sodomy in

l4a

violation of Articles 90, 128, and 125, Uniform Code of

Military Justice, 10 U.S.C. §§ 890, 928, and 925 (1988)

[hereinafter UCMJ]. He was sentenced to a dishonorable

discharge, confinement for three years, forfeiture of all pay

and allowances, and reduction to Private El. Consistent with

a pretrial agreement, the convening authority approved the

sentence.

The charges arose after the appellant tested positive for

the Human Immunodeficiency Virus (HIV). Immediately

upon being notified of his illness, and on two subsequent

occasions, appellant was counseled by medical personnel

concerning the nature of the disease and his responsibility to

prevent transmission of the infection to others. Appellant

signed the written counseling form used to detail this

information. Appellant’s commander subsequently issued a

“safe sex” order. The written order incorporated the earlier

medical counseling and warned that violations of either could

result in punitive action.

Appellant pleaded guilty, inter alia, to willful

disobedience of his commander’s order by not wearing a

condom while engaging in sodomy and for failure to advise

his sodomy partner of his HIV infection. The appellant now

attacks the providence of his plea because there is no factual

basis that the order required him to advise prospective

“sodomy” partners of his HIV status and that it did not require

him to wear a condom during the act of sodomy. We disagree.

The military judge conducted a thorough, searching

inquiry into the providence of the appellant’s pleas of guilty.

He identified and fully explored the issue raised by appellant

concerning the wording of the order.* The appellant insisted

*We agree that the order could have been clearer. We recommend the

order upheld in United States v. Womack, 29 M.J. 88 (C.M.A. 1989) as an

p

example of a clear “safe sex” order.

1Sa

several times during the inquiry that he understood the “safe

sex” order to include the requirement to advise sodomy

partners of his infection and to wear a condom during

sodomy. The military judge correctly accepted the appellant’s

understanding of the order. We conclude that the military

judge properly accepted appellant’s plea of guilty. Rule for

Courts-Martial 910(e); United States v. Davenport, 9 M.J. 364

(C.M.A. 1980); United States v. Care, 18 U.S.C.M.A. 535, 40

C.M.R. 247 (1969).

We have carefully considered the issues personally raised

by appellant pursuant to United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982), and find them to be without merit. We

specifically find that the sentence was entirely appropriate and

does not warrant relief under Article 66, UCMJ. Appellant’s

Grostefon assertion regarding sentence relief raises an issue of

clemency and not sentence appropriateness. United States v.

Healy, 26 M.J. 394 (C.M.A. 1988). His remaining assertions

of error are meritless.

The findings of guilty and the sentence are affirmed.

Judge GONZALES and Judge RUSSELL concur.

FOR THE COURT:

WILLIAM S. FULTON , JR.

Clerk of Court