Lamar A. Forbes v. John Phelan, Secretary of the Navy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2025 Decided September 2, 2025
No. 23-5012
LAMAR A. F ORBES ,
APPELLANT
v.
J OHN P HELAN, S ECRETARY OF THE NAVY AND R ANDALL
LAMOUREUX , P RESIDENT , NAVAL C LEMENCY AND P AROLE
B OARD ,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02175)
Robert Feldmeier argued the cause and filed the briefs for
appellant.
Bradley Hinshelwood, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Brett A. Shumate, Acting Assistant Attorney General, and
Melissa N. Patterson, Attorney. Brenda A. Gonzalez Horowitz,
Attorney, entered an appearance.
Before: S RINIVASAN, Chief Judge, P ILLARD and P AN ,
Circuit Judges.

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Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: Lamar Forbes, a former Navy
sailor, contracted the human immunodeficiency virus while in
the service and engaged in unprotected sexual intercourse with
four women without informing them of his status. Facing
charges that he violated several articles of the Uniform Code of
Military Justice, Forbes pleaded guilty before a military judge
sitting as a general court-martial. He was sentenced to eight
years’ confinement, a reduction in paygrade, and a
dishonorable discharge. The Navy-Marine Court of Criminal
Appeals and then the Court of Appeals for the Armed Forces
heard his appeals and affirmed his conviction. While on
supervised release, Forbes sought to overturn those convictions
by filing a petition for a writ of habeas corpus with the district
court. The district court denied Forbes’s petition, holding that
he procedurally defaulted several of his arguments by failing to
raise them before the military courts and that those courts fairly
considered the arguments he preserved.
On appeal, Forbes argues that the district court erred in
holding that the military courts had subject matter jurisdiction
to hear his case because, in his view, the Uniform Code of
Military Justice does not punish the type of conduct he engaged
in. And because those errors were jurisdictional, he contends,
the standard rules of procedural default and deferential review
of military court convictions do not apply. Additionally,
Forbes argues that the district court erred in holding that he
failed to preserve his claim that the military courts’ judgments
amounted to an unconstitutional ex post facto expansion of
criminal liability.
We affirm. Forbes styles several of his arguments as
“jurisdictional,” but they do not challenge the military courts’
authority to hear his case. Because Forbes’s challenges are

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non-jurisdictional, all standard procedural default rules apply,
and we review the military courts’ decisions on his preserved
claims only to determine whether the military courts fairly
considered them. We hold that Forbes procedurally defaulted
arguments he failed to raise before the military courts,
including his challenges to the Article 134 conviction and
constitutional ex post facto challenge to the Article 120
convictions, and that the military courts fully and fairly
evaluated the challenge he did make to the adequacy of the
Article 120 specifications before rejecting them as contrary to
binding military precedent. Accordingly, we affirm the
judgment of the district court.
I.
A.
Lamar Forbes is a former Navy sailor who tested positive
for human immunodeficiency virus (HIV) in 2012. United
States v. Forbes, 77 M.J. 765, 768 (N-M Ct. Crim. App. 2018).
Medical providers gave Forbes preventative medicine
counseling directing him to refrain from engaging in sexual
activity without first advising prospective partners of his
diagnosis. Forbes did not comply. While stationed in Virginia,
Forbes had unprotected sexual intercourse with four women
between 2013 and 2015 without informing them about his
HIV-positive status. Forbes maintains that, during that time,
he was on an antiretroviral treatment that suppressed his viral
load and rendered his HIV non-transmissible. None of his
sexual partners contracted HIV as a result of contact with
Forbes.
In 2015, the Commander of the Mid-Atlantic Navy Region
(Navy) convened a court-martial and charged Forbes with one
specification of making a false official statement under Article

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107 of the Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 907, four specifications of sexual assault under Article
120, id. § 920, four specifications of assault consummated by a
battery under Article 128, id. § 928, and one specification of
violating Article 134, id. § 934, which authorizes a court-
martial to punish violations of all non-capital federal crimes not
specifically stated in the UCMJ.1 As to the last specification,
the Navy charged Forbes under the Assimilative Crimes Act,
18 U.S.C. § 13, which makes it a federal crime to engage in
conduct while on a federal enclave—here, a naval base in
Virginia—that would violate the laws of the state in which the
enclave is located. The specification described conduct in
violation of Virginia’s infected sexual battery statute, which
made it a misdemeanor for “[a]ny person . . . knowing he is
infected with HIV” to have “sexual intercourse . . . with another
person without having previously disclosed the existence of his
infection.” VA. C ODE A NN . § 18.2-67.4:1(B) (2012).2
Forbes pleaded guilty. Pursuant to a plea agreement, the
Navy withdrew one of the sexual assault specifications and all
four specifications of assault consummated by a battery.
Forbes was thus convicted based on his guilty plea on one
specification of making a false official statement under Article
107, three specifications of sexual assault under Article 120,
and one specification of violating Article 134 by incorporation
1 In the military court system, a “charge” identifies the article of the
UCMJ the accused is alleged to have violated while a “specification”
is a “statement of the essential facts constituting the offense
charged.” M ANUAL FOR COURTS -M ARTIAL , UNITED STATES , Rule
for Courts-Martial (R.C.M.) 307(c)(2), (3) (2024). A specification
is “sufficient” if it alleges all elements of the charged offense.
R.C.M. 307(c)(3).
2 10 U.S.C. § 920 and VA. CODE ANN. § 18.2-67.4:1 were amended
after Forbes’s conviction.

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of Virginia’s infected sexual battery statute. The military judge
sentenced Forbes to “eight years’ confinement, reduction to
paygrade E-1, and a dishonorable discharge.” Forbes, 77 M.J.
at 767.
B.
Forbes appealed his sexual assault convictions to the
Navy-Marine Corps Court of Criminal Appeals (NMCCA),
arguing, inter alia, that his conduct as described in the
specification—engaging in sexual intercourse without
disclosing his HIV-positive status to his partners—did not
amount to sexual assault under the UCMJ. Forbes, 77 M.J. at
768. He also argued that, even if Article 120 required
affirmative disclosure of HIV-positive status before sexual
intercourse, the statute was void as unconstitutionally vague
because no reasonable person could determine what
information they had to disclose to a sexual partner to avoid
criminal sanction. Id. at 773-74. Notably, Forbes did not
appeal his Article 134 conviction of infected sexual battery
under Virginia law as assimilated into the UCMJ. He also did
not appeal his Article 107 conviction of making a false official
statement.
The NMCCA affirmed his convictions. It acknowledged
that Forbes’s Article 120 claim presented an issue of first
impression because no servicemember had previously been
convicted of sexual assault under Article 120 (as opposed to
assault under Article 128) for failing to inform a partner of his
HIV-positive status. 77 M.J. at 769. It upheld Forbes’s
conviction based on Article 120’s definitions of sexual assault
as “commit[ting] a sexual act upon another person by . . .
causing bodily harm to that other person,” 10 U.S.C.
§ 920(b)(1) (2012), and “bodily harm” as “any offensive
touching of another, however slight, including any

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nonconsensual sexual act.” Id. § 920(g)(3). Under military
precedent interpreting Article 128, “an HIV-positive service
member commits an ‘offensive touching’ when he performs a
sexual act on a partner without informing the partner of his
HIV-status,” because a person’s consent is ineffective if that
person’s sexual partner has failed to disclose his HIV-positive
status. Forbes, 77 M.J. at 773 (quoting United States v.
Gutierrez, 74 M.J. 61, 68 (C.A.A.F. 2015)). Accordingly, the
NMCCA held that the specifications describing Forbes’s
conduct stated an offense under Article 120. Id. That court
also rejected Forbes’s argument that Article 120 was
unconstitutionally vague, reasoning that statutory text and
decades of military precedent put Forbes on reasonable notice
that service members may not engage in sexual intercourse
without disclosing their HIV-positive status. Id.
Forbes appealed that decision to the Court of Appeals for
the Armed Forces (CAAF), which affirmed. The CAAF
endorsed the NMCCA’s reasoning, holding that, “consistent
with Article 120(b)(1)(B) . . . [Forbes] committed a sexual
assault each time he had sexual intercourse with one of the
victims without first informing her of his HIV status and
thereby lawfully obtaining her consent to the intercourse.”
United States v. Forbes, 78 M.J. 279, 281 (C.A.A.F. 2019). It
denied Forbes’s motion for reconsideration. See United States
v. Forbes, 78 M.J. 374 (C.A.A.F. 2019).
Years later, Forbes—now on supervised release—
petitioned the U.S. District Court for the District of Columbia
under 28 U.S.C. § 2241 for a writ of habeas corpus against the
Secretary of the Navy and the President of the Naval Clemency
and Parole Board. Forbes v. Del Toro, No. 21-cv-2175, 2022
WL 17475402, at *1 (D.D.C. Dec. 5, 2022). Forbes argued that
the district court should vacate his Article 120 and Article 134
convictions because the military courts committed several

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“jurisdictional” errors. Id. at *4. In his view, the court-martial
lacked subject matter jurisdiction to hear the Article 120 charge
against him because the facts in the specification failed to
support criminal liability under the UCMJ. Id.
Forbes’s habeas petition also argued for the first time that
the court-martial lacked subject matter jurisdiction to hear the
Article 134 charge against him because the Assimilative
Crimes Act did not assimilate the Virginia infected battery
statute into federal law and that, even if it did, prosecuting that
offense would run afoul of the “preemption doctrine” of the
UCMJ. Id. at *5 (quotation omitted). Forbes also raised a new
argument that the military courts’ interpretation of Article 120
amounted to an ex post facto expansion of criminal liability that
violated Forbes’s constitutional right to due process. Id.
The district court held that Forbes’s Article 120 challenge
was not jurisdictional—so not subject to de novo review—
because “the objection that an indictment does not charge a
crime . . . goes only to the merits of the case,” not to the military
court’s jurisdiction. Id. at *4 (internal alterations and citation
omitted). It held that the military courts “thoroughly evaluated
Forbes’s arguments” and thus gave “full and fair
consideration” to his claims. Id. at *3-4. Similarly, it rejected
Forbes’s claim that he raised a jurisdictional challenge to his
Article 134 conviction, given that he argued only that the facts
in the specification failed to amount to the offense charged
under the UCMJ. Id. at *5. And, because Forbes failed to
challenge the Article 134 conviction or to assert his ex post
facto constitutional claim in the military courts, the district
court held he procedurally defaulted both challenges. Id.
Forbes timely appealed. We have jurisdiction to hear his
appeal under 28 U.S.C. § 1291.

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II.
In reviewing a district court’s denial of a habeas petition,
we review its legal conclusions de novo. Howard v. Caufield,
765 F.3d 1, 6 (D.C. Cir. 2014). But in reviewing non-
jurisdictional challenges to military-court convictions, “‘[i]t is
the limited function of the civil courts to determine whether the
military ha[s] given fair consideration’ to each claim raised by
petitioners.” U.S. ex rel. New v. Rumsfeld, 448 F.3d 403, 407
(D.C. Cir. 2006) (quoting Burns v. Wilson, 346 U.S. 137, 144
(1953) (plurality opinion)). When the military courts have
fully and fairly considered those claims, “it is not the duty of
the civil courts . . . to re-examine and reweigh each item of
evidence.” Burns, 346 U.S. at 144. In considering a challenge
to a court-martial, we also apply the same forfeiture rules as
apply to federal habeas challenges to state court convictions,
which, absent a showing of cause and prejudice, “bar claims
raised for the first time during a collateral attack on a court-
martial.” Kendall v. Army Bd. for Corr. of Mil. Records, 996
F.2d 362, 366 (D.C. Cir. 1993).
III.
On appeal, Forbes contends the district court committed
three reversible errors. First, he asserts the court failed to
properly characterize his statutory challenge to his Article 120
conviction as jurisdictional and so failed to review it de novo.
Second, he argues the district court made the same error in
characterizing his Article 134 challenge as non-jurisdictional
and so holding it procedurally defaulted. Third, he contends
the district court erred in applying procedural default to his ex
post facto constitutional challenge to his Article 120 conviction
because, he asserts, he in fact raised it below.

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None of those arguments persuades. Each of Forbes’s
assertedly jurisdictional claims is accurately viewed as a
challenge to whether the facts in the specification make out an
offense under the UCMJ. Those are challenges to the merits of
his conviction, not to the jurisdiction of the court-martial.
Accordingly, we apply our standard procedural default rule,
and we review preserved claims only to ensure the military
courts fully considered them. Our review thus proceeds no
further than to recognize that Forbes procedurally defaulted his
ex post facto challenge to his Article 120 conviction as well as
his current challenge to his Article 134 conviction by failing to
preserve them in the military courts, and that the military courts
gave full and fair consideration to Forbes’s preserved statutory
challenge to his Article 120 convictions. We therefore affirm
the judgment of the district court.
A.
Federal courts have subject matter jurisdiction to
adjudicate a criminal case so long as “an indictment or
information alleges the violation of a crime set out . . . in one
of the . . . statutes defining federal crimes.” United States v.
Jabr, 4 F.4th 97, 102 (D.C. Cir. 2021) (quoting United States
v. Fahnbulleh, 752 F.3d 470, 476 (D.C. Cir. 2014)). Put
differently, “[t]he jurisdictional inquiry . . . asks only whether
the information alleges the violation of a federal crime, not
whether the facts it alleges in fact constitute such a violation.”
Id. Even if the defendant argues that “the charging instrument
does not charge all the elements of the offense,” a defect on
that front “do[es] not deprive a district court of jurisdiction.”
Id. (internal quotation marks and citation omitted). Instead, it
“goes only to the merits of the case.” United States v. Cotton,
535 U.S. 625, 631 (2002) (citation omitted).

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That is why we held in Jabr that an information’s claim of
a violation of 18 U.S.C. § 1752 “suffice[d] to substantiate the
district court’s jurisdiction” despite the defendant’s contention
that the conduct alleged in the information did not constitute a
federal offense. 4 F.4th at 102. Those principles apply to the
military courts along with one additional jurisdictional
requirement: A military court can consider a court-martial only
if the accused “was a member of the Armed Services at the time
of the offense charged.” Solorio v. United States, 483 U.S. 435,
451 (1987); see also United States v. Humphries, 71 M.J. 209,
213 (C.A.A.F. 2012) (noting, consistently with Cotton, the
“nonjurisdictional status of defective specifications”).
In sum, a military court has subject matter jurisdiction to
hear a criminal case so long as: (1) the defendant was a member
of the military at the time of the offense charged; and (2) the
military set out a charge identifying the article of the UCMJ the
defendant is accused of violating. Both requirements are met
here: Forbes was serving in the Navy at the time of the offenses
and the Navy charged him with violations of Articles 120 and
134 of the UCMJ. Accordingly, the court-martial had subject
matter jurisdiction to adjudicate those charges.
Forbes nevertheless contends that the court-martial lacked
subject matter jurisdiction over the sexual assault charges
against him because the underlying specification was “based
upon a theory of liability not contained within the UCMJ.”
Appellant’s Br. 12. In his view, Congress did not intend a
service member’s failure to disclose his minimally contagious
HIV-positive status to vitiate his partner’s informed consent.
He accordingly asserts that otherwise-consensual sexual
intercourse under those conditions does not constitute
“offensive touching” causing “bodily harm” within the
meaning of Article 120. Appellant’s Br. 16-18. But those
arguments confirm that Forbes’s challenge to the military

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courts’ decision boils down to whether the facts in the
specification support the “bodily harm” element of Article 120
sexual assault. That dispute over the adequacy of the
specification to state an element of the offense goes to the
merits of Forbes’s case; it “do[es] not deprive a . . . court of
jurisdiction” to hear it. Jabr, 4 F.4th at 102.
Because Forbes’s challenge to his Article 120 conviction
is nonjurisdictional, we need not determine the standard of
review that would apply to a jurisdictional challenge—a matter
on which the parties disagree. Instead, we fulfill our limited
function as a federal civil court reviewing a court-martial,
which is to determine whether the “military ha[s] given fair
consideration to [the service member’s] . . . claim[].” Burns,
346 U.S. at 144. As to the Article 120 convictions, the district
court held that the military courts “fully and fairly considered
Forbes’s arguments about bodily harm and offensive contact.”
Forbes, 2022 WL 17475402, at *5. We agree.
Forbes first appealed his conviction to the NMCCA. That
court described Forbes’s case as one of first impression
because no service member had previously been convicted of
sexual assault under Article 120 for failing to inform a sexual
partner of his HIV-positive status before engaging in
otherwise-consensual sexual acts. There was, however, “much
precedent for convicting service members for similar conduct”
under the general assault provision (i.e., not limited to sexual
assault), UCMJ Article 128, which punishes aggravated assault
and the lesser included offense of assault. Forbes, 77 M.J. at
769-70 (citing United States v. Gutierrez, 74 M.J. 61, 68
(C.A.A.F. 2015); United States v. Upham, 66 M.J. 83, 87
(C.A.A.F. 2008)).
Historically, if a service member engaged in sexual
intercourse without disclosing their HIV-positive status, the

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military charged the conduct as aggravated assault. Under
Article 128, a person is guilty of aggravated assault if they
“commit[] an assault with a dangerous weapon or other means
or force likely to produce death or grievous bodily harm.” 10
U.S.C. § 928 (2012). In the context of a service member’s
failure to disclose their HIV-positive status to a prospective
partner in otherwise consensual sexual activity, the military
courts interpreted the Article 128 requirement of
“means . . . likely to produce” grievous harm to gauge the
“likelihood of the virus causing death or serious bodily harm if
it invades the victim’s body.” United States v. Joseph, 37 M.J.
392, 397 (C.M.A. 1993). With the focus on the potential harm
from the virus once contracted, the court held that “[t]he
probability of infection need only be ‘more than merely a
fanciful, speculative, or remote possibility’” to support
conviction of aggravated assault under Article 128. Id.
(quoting United States v. Johnson, 30 M.J. 53, 57 (C.M.A.
1990)).
More than two decades later, the CAAF in Gutierrez
overruled Joseph, noting that its contingent likely-harm
analysis was sui generis to HIV-related assault cases and
inconsistent with the plain text of Article 128. See 74 M.J. at
65-66. The Gutierrez court held that “‘likely’ must mean the
same thing in an Article 128, UCMJ, prosecution for an
aggravated assault involving HIV transmission as it does in any
other prosecution under the statute,” and that “in plain English”
the provision required proof that “the charged conduct was
‘likely’ to bring about grievous bodily harm.” Id. at 66. The
inquiry thus properly trained on whether “grievous bodily harm
[is] the likely consequence of [defendant’s] sexual activity.”
Id. The relevant probability in the case before it was not the
risk that someone who contracted HIV from the defendant
would suffer grievous bodily injury, but the risk that
defendant’s conduct would transmit HIV to a sexual partner in

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the first place. Faced with a defendant whose conduct exposed
sexual partners to “at most . . . a 1-in-500 chance to transmit
HIV,” the CAAF overturned Gutierrez’s aggravated assault
conviction. Id. at 63.
Having determined that the evidence against Gutierrez was
insufficient to establish the grievous harm element of
aggravated assault, the CAAF affirmed a conviction for the
lesser included Article 128 offense of assault. Ordinary assault
under Article 128 requires only that the accused did “bodily
harm” to the victim, which the statute defines as “any offensive
touching of another, however slight.” Id. at 68 (internal
quotation marks and citation omitted). The CAAF reasoned
that Gutierrez’s failure to disclose his HIV-positive status
meant his partners could not provide meaningful informed
consent, which made the sexual intercourse an offensive
touching. Id.
In Forbes’s case, the NMCCA applied that same
reasoning, developed in Article 128 assault cases, to affirm his
conviction of sexual assault under Article 120. Article 120
defined “sexual assault” as “commit[ting] a sexual act upon
another person by causing bodily harm to that other person.”
10 U.S.C. § 920(b)(1)(B) (2012). The NMCCA noted that
“bodily harm” means “offensive touching” under Article 120
as it does under Article 128, making the CAAF’s holding in
Gutierrez binding on the military judge who accepted Forbes’s
guilty plea:
Both [non-aggravated assault under Article 128 and
sexual assault under Article 120] require an “offensive
touching,” and the CAAF has concluded that sexual
intercourse without informing your partner that you are
HIV-positive constitutes an “offensive touching.”
Thus, the military judge was bound by the CAAF’s

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ruling in Gutierrez, and was not therefore laboring
under an erroneous view of the law when she accepted
the appellant’s plea based upon his admission that he
had sexual intercourse with three women without
telling them that he was HIV-positive.
Forbes, 77 M.J. at 772. The NMCCA upheld Forbes’s Article
120 sexual assault conviction as consistent with (and indeed,
required by) Guttierez. See id. at 771-72.
On Forbes’s further appeal, the CAAF applied Gutierrez
and affirmed. It recognized that the military courts “have long
held . . . that failure to disclose one’s HIV-positive status before
engaging in sexual activity constitutes an offensive touching.”
Forbes, 78 M.J. at 281. And it explained that, under its
precedent, “failure to inform the victims of the HIV-positive
status . . . vitiates meaningful consent and causes the touching
to be offensive,” because without that information, consent
cannot be “informed.” Id.
Forbes raised two main counterarguments before the
military courts. First, he argued that he could not be convicted
of sexual assault “because his HIV-positive status did not cause
any of the victims to engage in sexual intercourse with him.”
Id. But as the CAAF explained, that argument misstated the
relevant legal standard—under Gutierrez, the sexual
intercourse caused his partners bodily harm (i.e., constituted an
offensive touching) because they could not give meaningful,
informed consent without knowledge of his HIV-status. Id.
Second, he asserted that the touching, which in his view could
only be “offensive” if there was “exposure, however slight, to
HIV,” failed to meet the statutory standard because at the time
of the sexual encounters, he was adhering to antiretroviral
treatment that rendered his HIV nontransmissible. Forbes, 77
M.J. at 772-73 (quotation omitted); Appellant’s Br. at 7-8;

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United States v. Forbes, 77 M.J. 765 (N-M Ct. Crim. App.
2018) (No. 18-0304). Again, the court explained that, unlike
with aggravated assault, it was not the actual transmission of
HIV (or likelihood thereof) that rendered Forbes’s touch
criminal, but rather his victims’ lack of informed consent
before engaging in the sexual encounter. Id. at 773; see Forbes,
78 M.J. at 281 n.4.
The CAAF in Gutierrez did not spell out why an HIV viral
load diminished to a point at which transmission is extremely
unlikely or impossible is treated as material to a sexual
partner’s consent such that failure to disclose HIV-positive
status categorically negates actual agreement to sexual
intercourse. Nor has it reconsidered the point. The NMCCA
in United States v. Lewis acknowledged that “the improvement
of treatment regimens over the years has steadily lowered the
risk of transmission for those who are HIV-positive,” but
observed that “it is the prerogative of our superior court, not
this one, to determine whether this presents a significant
change in circumstances warranting a departure from its prior
precedents.” 2020 WL 4745289, at *4-*6 (N-M Ct. Crim. App.
Aug. 17, 2020) (citing Forbes, 78 M.J. at 281, and Gutierrez,
74 M.J. at 68) (internal quotation marks and citation omitted).
The court in Lewis accordingly affirmed convictions for assault
and sexual assault based in part on the failure of a service
member with “undetectable” viral load to disclose his HIV-
positive status to otherwise-consenting sexual partners. Id. at
*4.
Recent legislative action addresses that aspect of Gutierrez
going forward. Congress amended the UCMJ sexual assault
statute since Forbes’s conviction to remove “bodily harm”
from its definition, see 10 U.S.C. § 920, such that Forbes’s
specification of conviction is no longer a crime. But that
intervening development is not a basis on which we can

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overturn Forbes’s conviction. We exercise only a “limited
function” in reviewing Forbes’s conviction. New, 448 F.3d at
407 (quotation omitted). The military courts carefully and
thoroughly analyzed Forbes’s arguments and ultimately
rejected them based on precedent that bound them. We
therefore affirm the district court’s dismissal of his claim.
B.
Forbes’s assertedly jurisdictional challenge to his
conviction under Article 134 of the UCMJ suffers from defects
similar to those that defeat his Article 120 challenge. Article
134 expressly permits service members to be subject to courts-
martial for “crimes and offenses not capital” that are “not
specifically mentioned” in the UCMJ. 10 U.S.C. § 934. That
category includes, inter alia, “crimes and offenses prohibited
by the United States Code.” United States v. Wheeler, 77 M.J.
289, 291 (C.A.A.F. 2018) (quotation omitted). Forbes was
charged under that article for a violation of the Assimilative
Crimes Act—18 U.S.C. § 13—which has the “basic purpose”
of “borrowing state law to fill gaps in the federal criminal law
that applies on federal enclaves.” Lewis v. United States, 523
U.S. 155, 160 (1998). The Assimilative Crimes Act provides
that “[w]hoever within” any federal enclave “is guilty of any
act . . . which, although not made punishable by any enactment
of Congress, would be punishable if committed” within the
jurisdiction of the state in which the federal enclave is located
“shall be guilty of a like offense and subject to a like
punishment.” 18 U.S.C. § 13(a). Forbes’s assimilated violation
was predicated on Virginia’s infected sexual battery statute,
which, at the time, made it a misdemeanor for “[a]ny
person . . . knowing he is infected with HIV” to have “sexual
intercourse . . . with another person without having previously
disclosed the existence of his infection to the other person.”
VA. C ODE ANN . § 18.2-67.4:1(B) (2012).

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Before the district court, Forbes argued for the first time
that the Assimilative Crimes Act does not assimilate Virginia’s
infected sexual battery statute because Congress enacted a
different assault statute—18 U.S.C. § 113—to punish similar
conduct. Alternatively, he argued that even if the Act
assimilated the Virginia statute, prosecution under Article 134
is improper because it violates the “preemption doctrine” of the
UCMJ. Forbes, 2022 WL 17475402, at *5 (quotation omitted).
Under that doctrine, the military may not rely on Article 134 to
prosecute a service member when doing so would lessen its
evidentiary burden compared to proving a similar UCMJ
offense. See Wheeler, 77 M.J. at 293. Forbes claims that using
the Virginia statute lessened the Navy’s evidentiary burden
compared to Article 120 because Virginia law does not require
proof of “bodily harm.” The district court held those
arguments were nonjurisdictional and procedurally defaulted
because, as Forbes conceded, he never raised them below.
2022 WL 17475402, at *5.
That conclusion is correct. As discussed in Part III.A,
supra, the jurisdictional inquiry for military courts trying
criminal cases is straightforward: Forbes was a member of the
Navy at the time of the offense and the Navy charged him under
Article 134. The military courts then had subject matter
jurisdiction to hear the Article 134 claim. Forbes contends that
his assimilation and preemption arguments are jurisdictional,
but we conclude they are merits defenses because they
challenge the sufficiency of the conduct described in the
specification to establish the elements of the crime.
Consider first Forbes’s assimilation argument. One of the
elements required for an Article 134 conviction is that there be
a “crime[] and offense[] not capital” for the court-martial to
punish, which in Forbes’s case was the violation of the
provision of the Virginia code that federal law assimilates. 10

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U.S.C. § 934. Forbes’s argument is that this element is not met
because (1) the Assimilative Crimes Act did not assimilate the
Virginia statute and therefore (2) his conduct did not violate the
Act. But once again, even if either or both of his assertions
were true, that would establish only a defect in the sufficiency
of the specification, which “do[es] not deprive a . . . court of
jurisdiction.” Jabr, 4 F.4th at 102.
That conclusion is consistent with the Supreme Court’s
decision in Lewis. Lewis affirmed the Fifth Circuit’s decision
that the Assimilative Crimes Act did not assimilate the child
victim provision of Louisiana’s first-degree murder statute
because the federal murder statute governed the crime at issue;
the Louisiana statute was inapplicable because the wrongful
“act . . . [was] made punishable by [an] enactment of
Congress.” 18 U.S.C. § 13(a). But the Court did not dismiss
the criminal case against the defendant for lack of subject
matter jurisdiction. Lewis, 523 U.S. at 172-73. Instead, it left
the conviction undisturbed on the ground that the jury, in
convicting the defendant of the assimilated charge, had
necessarily found all the requisite elements of federal second-
degree murder. The case was remanded to the district court for
resentencing only because the Louisiana charge mandated life
imprisonment whereas the federal second-degree murder
statute did not.
Forbes resists Lewis’s implication that assimilation issues
are nonjurisdictional by arguing that its holding applies “[o]nly
in cases where an improperly assimilated offense is the same,
element for element, with an offense recognized in the United
States Code.” Appellant’s Br. 25 (citing Lewis, 523 U.S. at
173). But that is incorrect. The state and federal offenses at
issue in Lewis had different statutory elements. See Lewis, 523
U.S. at 166-68.

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Other circuits that have considered the issue since Lewis
are in accord that improper assimilation is nonjurisdictional.
Most recently, the Tenth Circuit rejected appellant’s
characterization of his claim that federal law improperly
assimilated a provision of Colorado law as jurisdictional. Such
a challenge, the court explained, is not jurisdictional because it
“resembles a challenge to an indictment.” United States v.
Twitty, 859 F. App’x 310, 313 (10th Cir. 2021). The court
pointed out the general ineffectiveness of claiming that
improper assimilation is a jurisdictional defect: A meritorious
argument that an analogous federal law punishes
approximately the same conduct as the putatively assimilated
state offense would likely succeed in establishing federal
jurisdiction to hear the case under the analogous federal law.
“So jurisdictionally, whether the government charged the
offense under the [Assimilative Crimes Act] or another
provision of federal law [does] not matter.” Id.
The Third and Fifth Circuits have similarly rejected the
notion that improper assimilation is a jurisdictional defect. See
United States v. Hall, 979 F.2d 320, 323 (3d Cir. 1992)
(analogizing improper assimilation to an incorrect statutory
citation in an indictment); United States v. Key, 599 F.3d 469,
476-77 (5th Cir. 2010) (reviewing an improper assimilation
claim for plain error because it was not raised below and is
nonjurisdictional). The federal appellate decisions suggesting
otherwise predate Lewis and lack explanation. See United
States v. Perez, 956 F.2d 1098, 1101-02 (11th Cir. 1992)
(referring to improper assimilation as an issue of subject matter
jurisdiction); United States v. Devenport, 131 F.3d 604, 605
(7th Cir. 1997); but see United States v. Yates, 211 F. App’x
925, 927-28 (11th Cir. 2006) (holding, without explanation,

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that the district court lacked subject matter jurisdiction due to
improper assimilation, but remanding for resentencing).3
We follow the Supreme Court in Lewis, in line with the
Third, Fifth, and Tenth Circuits, to hold that Forbes’s
assimilation claim is not jurisdictional and is procedurally
defaulted for failure to raise it before the military courts.
Forbes also fails to persuade us that his preemption
argument is jurisdictional. He invokes preemption to argue that
the Navy impermissibly lightened its evidentiary burden by
using Article 134 instead of Article 120 to prosecute him for
one of the charges of sexual assault. He points out that
Virginia’s infected sexual battery statute, unlike Article 120,
does not require proof that he caused his victim “bodily harm.”
The problem with his position is that the military courts held
that Forbes caused bodily harm by engaging in precisely the
3 Forbes also relies on decisions from the military courts suggesting
that assimilation and preemption arguments are jurisdictional, but
they fail to persuade. The leading case, United States v. Robbins, 52
M.J. 159, 160 (C.A.A.F. 1999), predates Cotton and held without
elaboration that an improper assimilation was a jurisdictional defect.
Other, unpublished military court decisions rely on Robbins. See,
e.g., United States v. Wainionpa, No. ARMY 20210436, 2023 WL
355063, at *2 (Army Ct. Crim. App. Jan. 20, 2023); United States v.
Dominguez-Sandoval, No. ACM 40084, 2022 WL 987041, at *6
(A.F. Ct. Crim. App. Mar. 31, 2022). None of those decisions
acknowledges that the CAAF has recognized since Robbins that the
“jurisdictional” label is apposite only to matters that “govern[] a
court’s adjudicatory capacity.” Humphries, 71 M.J. at 213 (citation
omitted). The CAAF’s approach in Humphries aligns with that of
the Supreme Court, which in recent years has moved from an “elastic
concept of jurisdiction” to “what the term ‘jurisdiction’ means
today,” that is, “a court’s power to hear a case.” Cotton, 535 U.S. at
630 (citation omitted); see also Wilkins v. United States, 598 U.S.
152, 159-60 (2023).

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same conduct the Virginia statute criminalized—having sexual
intercourse without disclosing his HIV-positive status.
Forbes’s preemption argument, then, rests on an implicit denial
that his conduct caused bodily harm. But that is just a challenge
to the sufficiency of the specification to describe an element of
the alleged criminal conduct, which, again, does not divest the
military court of jurisdiction to hear the case. See Jabr, 4 F.4th
at 102. We therefore hold that Forbes defaulted this non-
jurisdictional argument by failing to raise it before the military
courts.
C.
Finally, we turn back to Forbes’s conviction for sexual
assault under Article 120 to consider his constitutional ex post
facto challenge. Before the district court, Forbes argued that
the military courts’ interpretation of Article 120
unconstitutionally expanded the criminal consequences of his
completed conduct because no prior case had held that a failure
to disclose HIV-positive status before engaging in intercourse
constituted sexual assault under that provision. The district
court held that, to the extent Forbes was attempting to raise a
new argument beyond his statutory challenge, he procedurally
defaulted it by failing to raise it before the military courts.
Absent a showing of cause and prejudice (which Forbes did not
attempt to make), his ex post facto challenge is waived because
federal courts “apply identical waiver rules to bar claims raised
for the first time during a collateral attack on a court-martial”
as we apply in habeas. Kendall, 996 F.2d at 366. Forbes does
not contend this argument is jurisdictional, and we agree with
the district court that Forbes failed to raise it below.
Forbes raised a void-for-vagueness constitutional claim
before the NMCCA—that if Article 120 requires disclosing
HIV-positive status, it is “unconstitutionally vague” because

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there is “no way for a person of common intelligence to
determine what exactly they should disclose to a sexual
partner” to avoid criminal liability for sexual assault. Forbes,
77 M.J. at 773. That court rejected his argument, concluding
that decades of precedent and the statutory text of Articles 120
and 128 put Forbes on fair notice that his conduct was
prohibited. Forbes did not raise the void-for-vagueness claim
or any other constitutional argument in his appeal to the CAAF
nor does he press it here, yet he now argues that he preserved
an ex post facto claim because his motion for reconsideration
described the CAAF’s decision as “vast[ly] broadening . . .
criminal liability.” Forbes Mot. for Recons. 3 (J.A. 124).
Setting aside the question whether that cursory description
can fairly be read to refer to an ex post facto claim, Forbes
raised it too late to preserve it on appeal. A motion for
reconsideration “may not be used . . . to raise arguments or
present evidence that could have been raised prior to the entry
of judgment” and is not a “vehicle to present a new legal theory
that was available prior to judgment.” Leidos, Inc. v. Hellenic
Republic, 881 F.3d 213, 217 (D.C. Cir. 2018) (internal
quotation marks and citations omitted). We regularly hold that
parties forfeit arguments they raise for the first time in a motion
for reconsideration when they could have raised them earlier.
See, e.g., GSS Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 812
(D.C. Cir. 2012).
Forbes’s response—that it was impossible for him to raise
his ex post facto claim until after the CAAF issued its
judgment—is meritless. The Navy announced its theory of
liability under Article 120 before Forbes’s court-martial and it
has remained consistent over the course of Forbes’s
prosecution. He could have raised this argument at any time
during or after his trial. We therefore hold that he procedurally
defaulted the claim by not raising it below.

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But even if Forbes had preserved this claim, we would
dismiss it for the same reason the NMCCA dismissed his void-
for-vagueness claim. A judicial interpretation of a criminal
statute operates as an unconstitutional ex post facto law if “[it]
is unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue.” Bouie v. City
of Columbia, 378 U.S. 347, 354 (1964) (internal quotation
marks and citation omitted). As the NMCCA explained,
decades of precedent under Article 128 made clear that
engaging in sexual intercourse without disclosing one’s HIV-
positive status constitutes an “offensive touching” causing
“bodily harm.” That Forbes’s case was the first to apply that
logic to Article 120 does not render the military courts’
interpretation “unexpected and indefensible.” Id.
***
A court-martial convicted Lamar Forbes based on an
admittedly novel application of the sexual assault article of the
Uniform Code of Military Justice, but it did so based on an
established interpretation of the same wording in a parallel
provision. The military courts gave careful consideration to
Forbes’s arguments and rejected them as contrary to the text of
the relevant UCMJ articles and military precedent. Sitting as a
civil court reviewing Forbes’s conviction, we owe significant
deference to the military courts’ judgment and must apply
standard procedural default rules. Forbes cannot now recast
arguments he never made below as jurisdictional to have us
second-guess the military courts’ decisions. We therefore
affirm the judgment of the district court.
So ordered.

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