CAAF granted review in eight cases last Thursday. Two are a McClour trailer, and five are Dalmazzi trailers. There are now 8 McClour trailers and 21 Dalmazzi trailers at CAAF.

Significantly, in three of the Dalmazzi trailers CAAF specified the issues for review. By my notes these are the first Dalmazzi trailers with specified issues (CAAF also specified the issues in the two McClour trailers, but it has done so before).

One of the Dalmazzi trailers also involves a different issue:

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER APPELLANT WAS PUNISHED FOR 28 DAYS BY BEING FORCED TO QUARTER A JUNIOR OFFICER IN HIS HOME AND NOT AWARDED CREDIT.

II. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS, BURTON AND HERRING.

III. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here but does not address the punishment issue.

The eighth grant isn’t a trailer case:

No. 16-0599/AR. U.S. v. Jared D. Herrmann. CCA 20131064. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO FIND APPELLANT COMMITTED RECKLESS ENDANGERMENT, WHICH REQUIRES PROOF THE CONDUCT WAS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

Briefs will be filed under Rule 25.

The Army CCA affirmed in a published opinion available here (75 M.J. 672). The appellant was convicted of reckless endangerment for the pencil packing of fourteen reserve parachutes, which is:

a procedure in which those responsible fail to pack or inspect a parachute properly yet nevertheless fraudulently sign off on the parachute as being properly packed and inspected.

75 M.J. at __, slip op. at 2.

14 Responses to “CAAF grants, and a rapidly-growing Dalmazzi trailer park”

  1. stewie says:

    The parachute case is interesting. I initially thought, well duh, pencil packing a reserve chute clearly is reckless endangerment.  But then the opinion says these chutes were training aids with intentional errors built in for instructional purposes.  So, wouldn’t the accused have maintained these errors? OR were the chutes formerly training aids, and were now being sent back to the line to be reserve chutes.  I think it’s the latter, but not fully clear.  But if the latter, seems like a no-brainer to me.

  2. Passing Bty says:

    Stewie,
    Well played.  If I had the technological skills to insert a golf clap emoji, I would do so.  I am sorry I can’t, but that’s life.

  3. Zachary D Spilman says:

    Looks like they were training chutes that were certified by the appellant for operational use.

    On one occasion in February 2013, appellant was assigned as the IP inspector over a team of three packers detailed to re-pack a daily quota of parachutes to include some reserve parachutes that were about to go beyond the 365-day in-service cycle. The evidence in this case showed that appellant and all three of the packers he supervised, in order to speed up the process and go home early, pencil packed approximately fourteen reserve parachutes in that they signed off on a number of parachutes without even opening or “popping” them, let alone checking, re-packing, or inspecting them. Significantly, these reserve parachutes came from a lot that had been provided to the Jumpmaster school for use as training aids in the Jumpmaster Personnel Inspection class. Consequently, these parachutes had deficiencies of varying severity intentionally rigged into them so the jumpmaster students could identify the deficiencies. The deficiencies—to include but not limited to missing ejector springs in some and faulty closing loops in others—that existed in the pencil packed chutes remained, notwithstanding the packer’s and appellant’s signatures certifying them as fit for operational use.

    Slip op. at 2 (emphases added). 

    And there’s this:

    At trial, while the element of likelihood of death or grievous bodily harm was not expressly conceded by the defense, the record of trial does not reveal much dispute over this particular aspect. In fact, in his sentencing argument, trial defense counsel acknowledged that all of appellant’s confederates agreed that their actions “endangered life.”

    Slip op. at 4. 

  4. stewie says:

    ZS, I get that it’s highly likely the chutes were going back into general pop, but CAAF granted the case, which made me think there must be something in the ROT or on appeal to call that into question, because, otherwise, it seems like a blindingly obvious example of reckless endangerment.

  5. A Random Jag says:

    After reading the ACCA opinion, it’s likely that CAAF took the case to give further guidance on “likely to produce death or grievous bodily harm.”  Maybe this case isn’t the right vehicle to do it (since I think too that it’s a blindingly obvious example of reckless endangerment), but it looks like the ACCA struggled with the appropriate definition after Gutierrez. 
    Having never had one of these cases I haven’t had to wrestle with the issue myself, but it does seem like the waters are muddied about the right instructions to give in these kinds of cases.  Look forward to oral argument on this one.

  6. charlie gittins says:

    I know a little bit about parachutes and parachute packing as I am an FAA Senior Rigger and I do a lot of skydiving.  The question really is whether the reserve parachutes had been signed off on the reserve packing data cards by a Rigger as good to go.  If the parachutes were signed off previously as satisfactory, and that packing data card was with the particular parachute, then the reckless endangerment really lies with the person who signed off as airworthy a reserve parachute that he had packed.  When I examine a reserve, I check to see if it is in date and that it was signed off by a qualified rigger.  If it was so signed off< would be satisfied that it was airworthy.  Pencil packing does happen on occasion in the civilian parachute world for any number of reasons, usually because the jumper wasn’t paying attention to when the reserve was due for repack (civilian reserves must be repacked every 180 days), but no rigger that was pencil packing would ever sign off a rig that had not been previously packed and signed off as airworthy as a rigger.  I don’t think signing off a previously rigger examined and packed reserve out of date is a means likely to cause death or grievous bodily injury, because the parachute has been certified as airworthy by another qualified rigger.  What the gravamen of the offense is is false official statement.  You shouldn’t pencil pack, but if you do and the rig has previously been signed off as airworthy, you would not have any reason to believe it was dangerous.  
         

  7. charlie gittins says:

    One final thought . . .   Whoever signed off a reserve parachute that might be used for an intentional parachute jump as airworthy when they knew it was not (because it was being used for training) is really the more dangerous person and the person who would be guilty of reckless endangerment.  One thing I have learned is that if you are letting someone train to pack a reserve, you never let the training reserve into the group of rigs that might actually be jumped  — they are physically segregated and they have some means to identify them as training aids and not to be used for an intentional parachute jump.  Training equipment should never be mixed with equipment likely to be used for an intentional parachute jump.  There may be some supervisory problems here as well if they are intentionally introducing malfunctions into reserves that might be used for an intentional parachute jump. 
       

  8. Luther Campbell says:

    These are reserve chutes, i.e., they won’t even be deployed in all likelihood.  So how can there a likelihood of death or grievous bodily injury?  You could pack them with Skittles and it wouldn’t matter…most of the time.

  9. J.M. says:

    I have a handle from my reserve hanging on my wall. If skittles had fallen out when I pulled it, it would have been a worse day.  
    Speaking towards what MR. Gittins says about maintaining chute segregation; The incident happened at FT Carson. I presume that the Jumpmaster school where the chutes were used was a MTT school, which means the chutes were pulled from operational stock for the class and visiting instructors and returned afterwards. 

  10. Dave Roberts says:

    I guess I’m the only one who’s excited that CAAF appears to be considering a Third Amendment issue for the first time ever…

  11. Luther Campbell says:

    J.M., I’m glad these yahoos weren’t packing your chutes, but my question still stands…where’s the “likelihood” of death or grievous bodily harm?  Your use of the reserve was an exceedingly rare event.

  12. former TC says:

    I guess there is room for interpretation–but I don’t think anyone who has gone through jump training would call popping a reserve chute “exceedingly rare.” A friend who went through jump training at the Air Force Academy said that just in his class there were probably 3 or 4 reserves deployed. 

  13. Allan says:

    I don’t want to go to bat for this guy too much, but I think this is overcharging.  The likelihood of this causing a problem is so small it is insignificant.  What would have to happen, before the chute was repacked, is that 1) it would be assigned to a paratrooper, out of all the reserves out there, and 2) the main chute would fail for some reason. 
    Article 92 was charged.  That should have been enough.  Indeed, I would think that the 134 charge was multiplicious, at least for sentencing purposes.  Same result, though.  I think the sentence was fair.  BCD 10 months in jail.  To me that is kind of light for the offense.
    The purpose of the whole exercise is to ensure good order and discipline in the unit.  I can think of very few things that would undermine good order and discipline in an airborne unit than not trusting the riggers.

  14. Vulture says:

    Is a trailer park a structure for the purposes of…?  Oh to hell with it.