(WICHITA, Kan.) — Technical Sergeant David Gutierrez sat quietly during his Article 32 hearing Tuesday morning at McConnell Air Force Base. Gutierrez is accused of one charge with 11 specifications of aggravated assault, one charge of violating an order on multiple occasions, one charge of indecent acts on multiple occasions, one charge with 10 specifications of adultery and one charge of obstructing justice.
Prosecutors say Gutierrez had unprotected sex with multiple partners at “swinger” parties and didn’t disclose he was HIV positive. The Article 32 hearing is to determine whether there’s enough evidence to call a general court martial.
Special Agent Richard Toth testified Gutierrez’s wife contacted them to launch the initial investigation. Toth says the wife explained Gutierrez used adult websites to find partners and would then videotape or photograph them in various sex acts. The wife told investigators she was angry because “he was hiding the fact he was HIV positive.” She said Gutierrez did disclose this fact while they were stationed overseas but did not tell partners in the United States.
A woman from Topeka says she met Gutierrez through a mutual friend in 2009. She says “she started to care for him” and then the two started having sex in May of 2009. She says many times Gutierrez’s wife would videotape the sexual encounters in the couples bedroom.
“I asked if he was clean,” said the Topeka woman. “He said yes.”
The woman says she questioned Gutierrez after she received a Facebook message saying he may be HIV positive. While driving on her way to get tested, she says Gutierrez told her “no, it wasn’t him but his brother who was HIV positive.”
Prosecutors asked the Topeka woman whether she would’ve had sex with the airman if she knew his HIV status. The woman answered no. At one point near the end of her testimony, she wiped tears from her eyes and said she believe Gutierrez because “he was Air Force and they have integrity.”
When Gutierrez’s defense team questioned the woman, she talked about “LS” or “lifestyle”. She says it’s people getting together to have sex. The woman described parties at El Dorado Lake, a barn in Goddard and a toga party held at a Wichita hotel.
A woman from Colorado also took the stand. She says she met Gutierrez at a private party in Goddard in April of 2009. She says she also asked the airman “whether he was clean and he said yes.” She testified about being videotaped and photographed during the sexual encounters. She talked of the “toolbox incident”. Evidence collected from the Gutierrez home state investigators seized a black plastic toolbox containing an electrical motor and a rubber sex toy.
Gutierrez’s commander at McConnell Air Force Base also testified. Major Christopher Hague says he learned of Gutierrez’s HIV status from his primary care manager in October 2009.
“I issued an order he must inform partners, wear a condom and not have unprotected sex,” said Hague.
Investigators also talked about the days leading up to Gutierrez’s arrest. Authorities had been in contact with Gutierrez’s wife. Special Agent Toth testified his wife noticed his passport was missing so authorities sent out a BOLO (be on the lookout) alert to Immigrations and Customs Enforcement and TSA officials. Toth says the plan was to arrest Gutierrez on August 9, 2010 when he went to work. But military officials were alerted August 8th TSA officials at Mid Continent Airport in Wichita had detained Gutierrez because he was on the no fly list because of the BOLO alert. Toth says Gutierrez was eventually let go and told it was a mistaken identity issue. Special Agent Derrell Freeman says he was in contact with Gutierrez’s wife during this time. Freeman says the wife told him as soon as Gutierrez returned home, he started defragging his computer and started checking for open military investigations online.
Gutierrez was arrested the following day when he arrived to work. Investigators did a consent search on the home August 9th and served a federal search warrant on August 16th. Investigators say among items seized were computers, cameras, adult sex toys, adult DVD’s, condoms and between 150-180 photographs.
Gutierrez did not testify during the Article 32 hearing. His defense did not call any witnesses. The military cannot require civilian witnesses to testify at an Article 32 hearing. They can be compelled to testify at a general court martial. The court did receive numerous written statements from other alleged victims in this case.
Lt. Col. Eric Mejia is the investigating officer in this case. He will write a report and submit it to Wing Commander Colonel James Crowhurst. In the next few weeks, Crowhurst will decide whether there’s enough evidence to take the case to a general court martial. If Gutierrez is found guilty of all charges and specifications in a general court martial maximum punishment includes a dishonorable discharge, more than 50 years confinement, total forfeitures of all pay and allowances and reduction to the lowest enlisted grade.
Courtroom sketches by Garrick Enright
October 5 Update
An airman accused of having unprotected sex without telling partners he was HIV positive faces a military hearing to determine if there's enough evidence for a court-martial.
The hearing for Tech. Sgt. David Gutierrez is today at McConnell Air Force base, where he is stationed. No immediate decision is expected.
The 43-year-old sergeant is accused of violating military law by having unprotected sex with at least 11 different people, including some he met at so-called swinger parties.
Gutierrez is charged with assault and violating his squadron commander's October 2009 order to notify his sexual partners about his HIV status. Gutierrez also has been charged with indecent acts, adultery and obstruction of justice.
Eyewitness News Reporter Kim Wilhelm is in court for that hearing, but electronic equipment (laptop, cell phone, etc.) is not allowed.
Stay with us for updates as they become available.
September 21 Update
An HIV positive airman accused of knowingly having unprotected sex has been formally charged.
Tech Sergeant David Gutierrez was charged in military court with several counts including aggravated assault.
The Air Force says the charges are based on allegations Sergeant Gutierrez engaged in unprotected sexual relations with eleven women in the Wichita area without telling them he was HIV positive.
According to court documents, Gutierrez faces several charges including one charge with eleven specifications of aggravated assault (assault by a means likely to produce death or grievous bodily injury), one charge of violating an order on multiple occasions, one charge of indecent acts on multiple occasions, one charge with ten specifications of adultery, and one charge of obstructing justice.
You can read the entire document detailing the charges using the link on the left.
An Article 32 hearing, similar to a civilian grand jury, will be held on October 5 at the McConnell AFB courtroom to determine if there is enough evidence to refer the case to a court-martial.
The Air Force wants to hear from anyone who has information relevant to the case. You can reach the Air Force Office of Special Investigations at 316-759-4124.
The Sedgwick County Health Department will also take confidential calls at 316-660-7300.
Anyone who thinks they may have been in sexual contact with a person who has a sexually transmitted disease should get tested as soon as possible.
August 29 Update
HIV-positive, and knowingly exposing others to the disease. That's the accusation facing a McConnell airman. The U.S Department of Justice says the man had sexual relations with multiple partners as part of his 'swinger' lifestyle.
We are not naming him because he has not been charged yet, but we have the court documents with the military's accusations.
The military says he knew he was HIV-positive and for three years had unprotected sex with multiple partners as part of his swinger lifestyle.
Court paperwork says the man was diagnosed in 2007. Investigators say he used multiple online profiles to adult websites to find partners.
The military interviewed at least two women from the Wichita-area who say they had unprotected sex with the airman.
Investigators alerted the Sedgwick County Health Department because others may be at risk. "It's really rare," said Jason Ybarra of the county's senior disease intervention specialist. "It's rarely reported to us, as far as HIV goes. We have not seen really, a whole lot of people calling in going 'I know this person is infected with HIV, and I know they're spreading it'."
Court documents say the airman 'took photographs and videos with his personal camera every time these sexual encounters took place.'
Investigators say 'at no time did he disclose his positive HIV status'.
The documents also include evidence the government seized from the Airman's home, including digital recording equipment, 'a two page blood chemistry report', $150 worth of poronographic movies, various sex toys, and 146 pages of HIV related research articles.
The airman is currently being held on McConnell Air Force Base in pre-trial confinement. He may be charged as early as next month.
Investigators at mcconnell air force base are looking for this man's partners. They ask you contact them by calling 316-759-4124.
The Air Force has a Code of Conduct regarding HIV Positive members. If an Air Force member is HIV-positive, that person is not supposed to be have unprotected sex.
As a military member who has been diagnosed as positive for HIV infection, you are hereby ordered:
(1) to verbally inform sexual partners that you are HIV positive prior to engaging in sexual relations. This order extends to sexual relations with other military members, military dependents, civilian employees of DoD components or any other persons;
(2) to use proper methods to prevent the transfer of body fluids during sexual relations, including the use of condoms providing an adequate barrier for HIV (e.g. latex);
(3) in the event that you require emergency care, to inform personnel responding to your emergency that you are HIV positive as soon as you are physically able to do so.
Kansas has a similar state law - it is a felony to knowingly expose someone to HIV.
Original Story, August 28
A sergeant stationed at McConnell Air Force Base has been arrested on suspicion of exposing sex partners to HIV by having unprotected sex with people he met at "swinger" parties around Wichita.
The Air Force Office of Special Investigations said Friday the man has not been charged but was ordered into a military jail at the base. The 43-year-old airman was arrested Aug. 9 and faces a September military hearing.
A search warrant filed in U.S. District Court shows he is under investigation for assault related to the parties.
An affidavit filed in support of the search warrant says the sergeant attended 21 Wichita-area swinger events from January 2009 until July. It says he exposed "multiple" men and women to the HIV virus.
Messages left Friday with his military lawyer were not returned.