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NCO accused of not telling partners about HIV

Sep. 17, 2010 - 02:49PM   |   Last Updated: Sep. 17, 2010 - 02:49PM  |  
A listing of some of the items found in the residence of Tech. Sgt. David Gutierrez.
A listing of some of the items found in the residence of Tech. Sgt. David Gutierrez. (Bryan Smith / Staff illustration)
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A noncommissioned officer is being kept behind bars while the Air Force investigates whether he told a "multitude" of sex partners — men and women — that he has AIDS, according to law enforcement officials and legal documents.

Tech. Sgt. David Gutierrez of McConnell Air Force Base, Kan., regularly attended "swinger" parties, where he had many of his encounters, and later bragged to his wife that he did not inform his sex partners of his condition, according to a federal search warrant filed by Air Force prosecutors for his home in Wichita. The warrant does not state how many people Gutierrez allegedly infected.

Gutierrez, in charge of documentation for the 22nd Maintenance Operations Squadron, has been confined on base since being arrested Aug. 9 but has not been charged, according to Linda Card, a spokeswoman for the Air Force Office of Special Investigations. He is expected to have an Article 32 hearing, the military equivalent of a grand jury proceeding, later this month, Card said, and must be tried within 120 days from the time of his arrest as stipulated by the Uniform Military Code of Justice.

An Air Force lawyer is representing Gutierrez. Capt. Aaron Maness, defense counsel for Whiteman Air Force Base, Mo., about 250 miles from McConnell, declined comment.

McConnell's units fall under Air Mobility Command, which referred questions about the investigation back to Card, including how the investigation started and how investigators discovered Gutierrez's alleged HIV-positive status.

AMC, however, did issue a response when Air Force Times asked if an Air Force hospital would disclose a patient's medical information to law enforcement officials without a search warrant.

"Patient medical information is protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act. Both statutes allow medical providers to disclose certain protected information to law enforcement personnel conducting criminal investigations," Capt. James Bressendorff, AMC public affairs officer, wrote in an e-mail.

"Air Force medical treatment facilities routinely comply with all proper orders, including court issued search warrants, subpoenas, and search authorizations approved by a properly appointed Military Magistrate," he wrote.

Two "neutral and detached" officers determined Gutierrez could be confined before trial based on Air Force Instruction 51-201, Administration of Military Justice, Card wrote in an e-mail.

Card declined to release much additional information because of concerns for Gutierrez's privacy and the ongoing investigation.

She told Air Force Times that the "health of the base and local populations, the safety of the witness and possible victims are of constant Air Force and AFOSI concern."

"The Air Force cooperates fully with civilian law enforcement, local health officials and prosecuting authorities who exercise jurisdiction in all cases involving airmen charged with criminal offenses that could potentially affect public health and safety," Card said.

From Italy to Kansas

OSI began investigating Gutierrez on July 22 after receiving a tip that he "had engaged in numerous, unprotected sexual acts with a multitude of sexual partners over the course of three years," according to the warrant, parts of it http://www.thesmokinggun.com/documents/investigation/air-force-swinger-hiv-probe">posted online Aug. 26 by thesmokinggun.com. As of Sept. 2, the document had not been entered in a database of federal court filings.

Gutierrez's wife, Gina Gutierrez, told investigators her husband became infected with HIV in 2007 while stationed at Aviano Air Base, Italy, according to the warrant.

Gutierrez, who enlisted in December 1990, contacted his sexual partners in Italy to tell them about his medical condition and was honest about his health during the rest of his assignment in Italy, Gina Gutierrez told investigators.

After transferring to McConnell in December 2008, however, Gutierrez began having unprotected sex with "numerous" partners, according to the warrant. He used contacts on adult social networking sites such as adultfriendfinder.com and clubforeplay.com to arrange encounters with men and women.

Gutierrez, according to the warrant, bragged to his wife "about his numerous sexual exploits in the Wichita area and commented he never informed other parties of being HIV positive" and told her that he always photographed or filmed his encounters.

OSI investigators interviewed two women, both 44, who met Gutierrez online and later in person, according to the warrant.

One met Gutierrez in June or July at a party in nearby Goddard, Kan. He did not tell her about his HIV-positive status and she performed oral sex on him many times over the next two or three months, court documents show.

The other met him on Thanksgiving 2009 at his house, where she performed oral sex on him and they had unprotected intercourse. "At no time did [Gutierrez] disclose his HIV positive status" to her, the documents state.

On his adultfriendfinder.com profiles — one for himself, one for him and his wife — Gutierrez states condoms will be worn "at all times."

In the shadows

An undercover investigator tried to make contact with Gutierrez online, but the airman didn't take the bait.

Investigators, however, observed Gutierrez logged into "numerous adult websites," the last time just a day before he was arrested.

"This undercover operation also disclosed [Gutierrez] posted a lengthy pattern of activity at local swinger events," the warrant reads. "According to one profile, [Gutierrez] attended 21 Wichita area swinger events from 17 Jan 09 to 10 Jul 10."

When agents arrested Gutierrez, they collected a camcorder, an empty camera case, three laptops, one cell phone and a "small amount of digital media." Gina Gutierrez told investigators her husband kept personal property in other rooms of the house but was unable to grant consent to search the areas. The warrant does not explain why she could not give permission.

The next day, Aug. 10, Gina Gutierrez told investigators her husband also had several CDs and at least one USB thumb drive. At some point, she told investigators, Gutierrez also owned an external hard drive that he claimed to have sold to a local Best Buy electronics store. But, according to the warrant, Best Buy doesn't purchase external hard drives from customers.

Investigators returned to the Gutierrez home Aug. 16, according to documents, and confiscated additional evidence, including 37 pornographic VHS tapes or DVDs. The movies had titles such as "Playboy's Secret Seductions," "The World's Sexiest She-Males," "Bi-Sex Mania 6," "Chocolate XXXtasy" and "Fill 'er Up."

Other items seized: 105 condoms, a variety of sex toys, blood-test reports, floppy disks, CDs, a digital camera, cell phone statements and two manila envelopes containing HIV-related research.

Profile pronouncements

Gutierrez announced in his profile on adultfriendfinder.com, which bills itself as "The World's Largest Sex & Swinger Personals Community," that he "is looking for friendship and sex. I can play alone it needs to be [discreet]. No I'm not hiding this from my wife. She knows and approves."

A call to Gutierrez's home on the morning of Aug. 30 went unanswered; in the afternoon, a call to the same number connected to a fax machine. Air Force Times then faxed a request for comment to Gina Gutierrez, who did not respond. A message posted on Facebook to David Gutierrez's profile also went unanswered.

On his adultfriendfinder.com profile is a photo of Gutierrez wearing an open robe and nothing else. Four other users raved about the hookups. And the site said Gutierrez "experimented" with sex with other men.

"It has been several months but I think I would be more comfortable being with another guy if the wife/girlfriend played too," said a comment posted in 2005.

The joint profile describes in graphic detail what kinds of encounters the Gutierrezes seek. In a post dated Nov. 20, 2008, a man wrote that he met them in Italy. "Beautiful couple, very nice and friendly, they put me at ease and enjoyed a very good saturday night/sunday morning of play," he wrote.

Responses that Gutierrez gave to a detailed survey show the role that swinging played in his life. He answered sex was "all I think about" and that he was online so often that "my screen saver never gets a chance to run."

Gutierrez stated he "regularly" had "1 on 1, 3 somes, groups, orgies, swingers clubs" and listed ownership of a swingers club as his dream job.

Neither profile mentions HIV. According to The Smoking Gun, Gutierrez posted a poll on adultfriendfinder.com in June 2007 asking other users if they were willing to "play" with people infected with HIV or herpes simplex virus.

Air Force Times could not verify the online poll, but The Smoking Gun added Gutierrez followed up by asking, "Why are people scared of the HIV virus? … The research I have done raises several questions on weather [sic] or not HIV is even related to AIDS."

Related reading

http://www.airforcetimes.com/news/2010/08/ap-air-force-mcconnell-airman-accused-of-unprotected-sex-082810/">Air Force: McConnell sergeant exposed men, women to HIV

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