United States v. Moore

846 F.2d 1163 (1988)

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Nature of the Case

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Facts

D was an inmate at the Federal Medical Center (FMC) in Rochester. D was advised that he had tested positive for HIV and that AIDS could be fatal. D was informed that the disease could be transmitted by way of blood or semen and counseled him to avoid unprotected intercourse and not to share needles, razor blades or toothbrushes. D had been smoking in a non-smoking area in the FMC's medical-surgical unit. D refused to answer questions about the incident. The Officer told D he would have to be placed in seclusion and administrative detention. D refused to move. Another Officer arrived and D was told to stand to be cuffed. D said, 'I won't be cuffed.' Two additional correctional officers arrived and attempted to lift D from his chair. D reacted violently and kneed an Officer in the groin twice, attempted to bite him on the hand, and did bite him on the left knee and hip without breaking the skin. D held his mouth over the bite on the leg for several seconds. D also bit another Officer on the right leg, holding his mouth against the bite from five to seven seconds. A mild abrasion appeared on the Officer's thigh where D had bitten him. The abrasion may have come into contact with a wet patch on the Officer's pants which possibly was made by D's saliva. D threatened to kill the officers. D admitted to a nurse that he had 'wanted to hurt them badly, wanted to kill the bastards.' He also said that he 'hopes the wounds that he inflicted on the officers when he bit them were bad enough that they get the disease that he has.' The indictment charged that D willfully had assaulted the Officers by means of a deadly and dangerous weapon, i.e., D's mouth and teeth. The indictment charged that D tested positive for HIV but it said nothing of D testing positive for hepatitis. Dr. Gastineau testified that there were no 'well-proven instances in which a human bite has resulted in transmission of the [HIV] virus to the bitten person.' It has never been shown to have been spread through contact with saliva. He testified about a case of a person who had been bitten deeply by a person with AIDS and had tested negative 18 months later. He did testify that a human bite can be 'much more dangerous than a dog bite.' He characterized a human bite as 'a very dangerous form of aggression' and 'one of the most dangerous of all forms of bites.' The court declined to instruct the jury that P was required to prove that AIDS could be transmitted by way of a bite in order to prove that D's mouth and teeth were a deadly and dangerous weapon. D was found guilty and sentenced to concurrent five-year prison terms, which were to run consecutively to the seven-year federal prison sentence he was serving at the time of the incident. D appealed.