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Criminal Law Keyed to Gershowitz
United States v. Moore
Citation:
846 F.2d 1163.Facts
In mid-December of 1986, a doctor advised the defendant that he had Human Immunodeficiency Virus (“HIV”) and that the disease could be fatal. He told the defendant 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.
On January 7, 1987, the defendant got into a struggle with correctional officers and bit them. During the struggle, the defendant threatened to kill the officers as well. Later, he told a nurse 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.”
He was indicted for assault with a deadly and dangerous weapon. The indictment charged that the defendant willfully had assaulted federal correctional officers engaged in their official duties, by means of a deadly and dangerous weapon, i.e., the defendant’s mouth and teeth. The indictment specifically charged that the defendant was “a person then having been tested positively for the [HIV] antibody.”
At trial, a doctor testified that the medical profession knew of no “well-proven instances in which a human bite has resulted in transmission of the [HIV] virus to the bitten person.” He also testified that, apart from the matter of HIV, a human bite can be dangerous. He said that when a human bite is of a more damaging nature than the ones inflicted by the defendant and “where the skin is really broken to greater depths,” it 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 jury found the defendant guilty and he was convicted of assault with a deadly and dangerous weapon. The court declined to instruct the jury that he government was required to prove that HIV could be transmitted by way of a bite in order to prove that the defendant’s mouth and teeth were a deadly and dangerous weapon. The defendant appealed.
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14m 16s
