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U.S. v. Ward

November 13, 1997




On Appeal from the United States District Court

for the District of New Jersey D.C. No. 96-cr-00061

Before: STAPLETON, ALITO, and ROSENN, Circuit Judges.

ROSENN, Circuit Judge.

Filed November 13, 1997

Argued: October 15, 1997


The primary issue in this case is whether a United States district court may order a criminal defendant convicted of an offense involving sexual assaults on his victim to undergo blood testing to determine the presence of the virus that causes Acquired Immune Deficiency Syndrome ("AIDS"). The court ordered the defendant to undergo the testing based on its "inherent authority" to shield the criminal justice system from "abuses, oppression and injustice," and to "protect witnesses." The court limited disclosure of the test results to the defendant, the victim of the sexual assault, and their respective doctors. We do not subscribe to the district court's reliance on "inherent authority" when there is statutory authorization. We hold that a district court may order such testing under the recently amended federal Violence Against Women Act (the "Act"). Because the district court did not apply the Act, it did not make certain required findings under the Act before ordering the test. Hence, the case will be remanded to the district court with directions to make the requisitefindings.


The following undisputed facts are taken from the defendant's guilty plea colloquy in the United States District Court for the State of New Jersey and the Presentence Investigation Report. On December 4, 1995, the defendant, David J. Ward, employed as a commercial truck driver, abducted a 24-year-old woman he met while she was working as a waitress and bartender at the bar of a Marriott Courtyard Hotel in New Jersey which Ward had been patronizing. Ward arrived at the bar at approximately 4 p.m. and stayed until approximately 9:30 p.m., at which time he left. Several hours later, after the bar closed, the victim also left and walked to her car in a nearby parking lot. Ward jumped on her back, hurled her to the ground, and after unsuccessfully attempting to tape her mouth, wrapped duct tape around her face and head, bound her hands and feet with plastic flexible cuffs, and carried her through a wooded area to his truck parked nearby. That night, in the sleeper compartment of his truck, Ward sexually assaulted the victim by, among other things, digital penetration of her vagina and unsuccessful penile penetration, followed by penile and digital penetration of her rectal area. Over the next three days, Ward kept the victim captive in his truck by binding and gagging her and by threatening to harm her. During this time, he delivered and picked up cargo in different states, including New York and Indiana. Also during this period, Ward brutally sexually assaulted the victim numerous other times, including performing oral and anal sex on her, forcing her to perform oral sex on him, ejaculating on her back, and inserting his fingers into her vagina.

On December 7, Ward and the victim arrived at a truck stop in Indianapolis. Ward left his truck, telling the victim he would return in eight to 10 minutes. After Ward left the truck, the victim removed the plastic cuffs which bound her hands and ankles by using a nail clipper she found in the truck. She left the truck and after at first failing to enlist the assistance of a man at the truck stop, obtained the aid of another man who notified a security guard. The guard arrived on the scene promptly and called the police. By this time, Ward had fled in his truck. The victim described Ward to the police. Illinois State Police Officers arrested Ward a short time later on an interstate highway near Springfield, Illinois.

On January 30, 1996, a federal grand jury sitting in Newark, New Jersey, indicted Ward on one count of kidnaping in violation of 18 U.S.C. Section(s) 1201. On May 1, 1996, the Government moved the district court for an order requiring Ward to provide a blood sample so that he could be tested for the presence of human immunodeficiency virus ("HIV"), the virus that causes AIDS. On July 10, 1996, Ward pleaded guilty to the indictment. Later, after extensive briefing and oral argument, the court granted the Government's motion and ordered Ward to provide the blood sample. The court directed that the results remain confidential except for disclosure to the victim, Ward, and their respective doctors.

Pursuant to the United States Sentencing Guidelines, after adjustments, the court assigned Ward a total offense level of 40. This included a three-point reduction based on Ward's acceptance of responsibility for his crime. Also included in the offense level was a two-level upward departure, pursuant to U.S.S.G. Section(s) 2A3.1, application note 7, which provides: "[i]f the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted." In 1983, Ward had been convicted in a Minnesota state court of sexually assaulting a jogger at knife point. Based on Ward's numerous prior convictions, the district court placed him in criminal history category IV. His 1983 conviction for the sexual assault was used in calculating this criminal history score. The sentencing guideline range for an offense level of 40 and a criminal history category IV is 360 months to life imprisonment. The court sentenced Ward to 720 months imprisonment.

Ward timely appealed and raises two issues. *fn1 He argues that the district court erred when it ordered him to undergo the blood test for the presence of HIV and when it departed upwardly based on his having ...

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