# Petition for Writ of Certiorari — Pritchard v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1253

## Text

| 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

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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.

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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.

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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

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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

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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.

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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

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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

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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.

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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

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0685%3A1. Public record. Not legal advice.