CAAF decided the Army case of United States v. Herrmann, __ M.J. __, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.

CAAF then granted review of a single 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.

The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:

illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.

Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.

But CAAF is unconvinced and affirms the conviction.

Judge Ohlson begins by distinguishing this case from United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), our #7 Military Justice Story of 2015. Herrmann’s appellate defense counsel relied on Gutierrez rather heavily, but Judge Ohlson explains that it doesn’t answer the issue presented in this case:

Gutierrez differs substantially from the instant case. Gutierrez was a highly fact-specific case involving the probability of transmitting HIV, as demonstrated by scientifically derived statistics. The instant case involves the likelihood of “pencil-packed” parachutes causing parachutists to experience death or serious bodily harm, where the probability of that harm cannot be determined either scientifically or with any degree of precision.

. . .

[O]ur decision in Gutierrez stands for the proposition of what does not constitute “likely”; it provides no definitive answer that we can adopt in the instant case about what does constitute “likely.”

Slip  op. at 6.

Instead, the answer lies in a plain-language definition of likely:

We conclude that a “plain language” analysis of the relevant text is dispositive of the issue before us. See United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013); see also EV v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016) (“‘[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” (alteration in original) (citations omitted)). We note that the word “likely” is not a term of art or an arcane article of the law. Rather, it is used in everyday life with great frequency and its meaning is not difficult to grasp. Accordingly, we hold the following: a determination of whether death or grievous bodily harm is a “likely” result of an accused’s conduct under the provisions of Article 134, UCMJ, is based on the trier of facts’ commonsense, everyday understanding of that term as applied to the totality of the circumstances. This approach is consistent with the President’s explanatory text regarding the offense of reckless endangerment, which states that “[w]hen the natural or probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is ‘likely’ to produce that result.” MCM pt. IV, para. 100a.c.(5).3

Slip op. at 7 (emphasis added).

The first part of this holding (involving a commonsense, everyday understanding) is rather unsatisfying because it doesn’t provide a particularly hearty standard. Military law recognizes many standards of proof: beyond a reasonable doubt, clear and convincing, preponderance of the evidence, and even a possibility and a mere possibility. See United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012) (CAAFlog case page). Likely is in there somewhere, but it’s not clear where.

This is actually the first thing that came to mind when I first read this definition of likely:

This clip, of course, refers to a 1-in-a-million chance (longer version here), while in Gutierrez CAAF found a better  1-in-500 chance is still insufficient to constitute likely under the UCMJ. Nevertheless, resorting to the “trier of facts’ commonsense, everyday understanding of [likely] as applied to the totality of the circumstances,” is far from a pinpoint definition.

But Judge Ohlson also references the MCM explanation that likely involves “the natural or probable consequence of particular conduct,” and that provides a more definite standard. It is also the standard that Judge Ohlson actually uses in the sufficiency analysis of the evidence in this case:

Examining the evidence in the light most favorable to the Government, a rational finder of fact could have found the following points beyond a reasonable doubt:

(a) the “pencil-packed” reserve parachutes were placed in the “ready-for-issue” cage, and thus were subject to distribution to paratroopers during the next 365-day cycle;

(b) these parachutes were no longer airworthy because of significant safety deficiencies such as missing ejector springs, knotted and stretched out closing loops, and degraded cotton ties; and

(c) the natural and probable consequence of these safety deficiencies was an unintentional deployment of the “pencil-packed” parachute prior to a jump, or a malfunction of such a parachute in the course of a jump, leading to the death or grievous bodily harm of the parachutist or other soldiers.

Slip op. at 8 (paragraphs and emphasis added).

The standard Benchbook instruction on this issue informs members that

The conduct must have been “likely” to bring about death or grievous bodily harm. It is not necessary that death or grievous bodily harm actually result.

When the natural and probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is “likely to produce” that result. The drawing of this inference is not required.

§ 3–100a–1.d, Military Judges’ Benchbook, Dep’t of the Army, Pam. 27-9 (2014 w/ interim update 15-06). It’s clear from CAAF’s resolution of this case that a natural and probable consequence of the harm is legally sufficient to sustain a conviction, and adopting that standard is certainly the safest choice in any case. But while Judge Ohlson explains that in Gutierrez the court rejected “the notion that the term likely equates to anything more than merely a fanciful, speculative, or remote possibility,” slip op. at 6 (marks and citation omitted), it’s still not entirely clear how much less than a natural and probable consequence will sustain a conviction of reckless endangerment.

Case Links:
• ACCA opinion (75 M.J. 672)
• Appellant’s brief
• Appellee’s (Army App. Gov’t Div.) brief
• Appellant’s reply brief
• Amicus brief: Law student
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

13 Responses to “Opinion Analysis: A natural and probable consequence, and maybe something less, sustains a conviction of reckless endangerment in United States v. Herrmann, No. 16-0599/AR”

  1. Charlie Gittins says:

    A pencil packed reserve requires both a main canopy malfunction and a failure of a previously properly packed reserve that was penciled off as repacked without actually repacking it.  If it had failed without the pencil pack, the accused could not have been guilty.  It is both speculative and remote that that series of events would occur on any given parachute jump.  I think it much less speculative or remote that having sex with some chick infected with HIV would result in infection.  But then again, I know something about parachutes and rigging and Judge Ohlson does not.
     

  2. Concerned Defender says:

    Pretty sorry Defense I’d say.  As a former paratrooper, this gives me chills and I’d like this conviction posted in every rigger’s area and chute shed possible!  I wouldn’t want to jump without a reserve, which is effectively what was happening. 

    these parachutes were no longer airworthy because of significant safety deficiencies such as missing ejector springs, knotted and stretched out closing loops, and degraded cotton ties;

    Um.  No thank you… There’s a reason we have inspections.  The remoteness or “odds” of an issue are irrelevant – it’s not the odds, it’s what is at stake if there’s a foreseeable problem.  You simply cannot have pencil whipping on such important things.  Reserves aren’t pulled often, but when they are it’s life threatening and urgently needed.
    He’s frankly lucky this happened before a death related to this, or he’d be facing life in prison.  
    Great decision I’d say.  And a fair punishment.  

  3. JAE says:

    i believe judge Ohlson started his career as an Army JAG on jump status at Fort Bragg.  

  4. J.M. says:

    If it had failed without the pencil pack, the accused could not have been guilty. 

    Mr. Gittins, I think you’ve forgotten that the reserve chutes in this case were deliberately altered to create deficiencies, for training, then sent back to the riggers to be repacked and placed back into rotation. Hermann knew this and pencil packed those reserves, knowing they had deficiencies and knowing that they would be jumped. He knowingly placed deficient chutes into rotation.
    You’ve posted your skydiving creds before in the previous post on this and, as someone with only a few tandem jumps, I’m jealous. But there’s a big difference between skydiving and military static line. And with respect, your knowledge on skydiving doesn’t make you a static line expert. There are, literally, no seconds to spare when a reserve needs to be deployed and I applaud the gov for pushing this issue as seriously as they did. And that almost hurts to write, given my previous experiences with the UCMJ and my tendency to be defense friendly. 
    And CD is saying good job on a successful prosecution. Dogs and cats, living together!

  5. Cloudesley Shovell says:

    The Rule of Lenity, still dead.  Although the court engaged in an analysis of the term “likely”, it didn’t even give lip service to the rule. 
     
    I think the rule is even more important in cases like this were the egregiousness of the appellant’s misconduct gets everyone riled up, and dispassionate legal analysis gets lost in the furor.  I tend to agree with Mr. Gittins, in that the harm here is more speculative than likely.  It’s a hard case, and I think this one is bad law.  As CAAF interprets it, “likely” now means “any chain of events by which one can conceive of any possibility of death or grievous bodily harm”.   The two are not the same. 
     
    An interesting note on the rule of lenity here.  http://www.scotusblog.com/2016/09/the-court-after-scalia-scalia-and-the-rule-of-lenity/
     
    Kind regards,
    CS

  6. Zachary D Spilman says:

    Something I didn’t note in my analysis above, but I think worth noting in light of the comments so far, is this footnote from the opinion:

    We note, of course, that throughout a court-martial the burden remains on the government to prove that death or grievous bodily harm was a “likely” consequence of an accused’s conduct. But as a corollary, we note that the defense may seek to introduce evidence at trial which serves to thwart this goal of the government. In the instant case, the record reflects little evidence that was introduced before the military judge that tended to counter the Government’s argument that the “pencil-packed” reserve parachutes likely would have been issued to paratroopers, and that they likely would have malfunctioned aboard an aircraft or during a jump

    Slip op. at 8 n.4 (emphasis added).

    This footnote suggests that CAAF can imagine circumstances where the conduct at issue in this case would not be likely to cause death or grievous bodily harm, but that its imagination isn’t enough to justify reversal of the conviction.

    I don’t think this is an improper shifting of the burden of proof. Rather, I think it’s an acknowledgement that the legal sufficiency conclusion in this case (as in all cases) is entirely based on the facts as they exist in the record. 

  7. (Former)ArmyTC says:

    Here’s what I don’t get…the deficiencies in the reserves were inserted by a USASOC jumpmaster school to train prospective jumpmasters. One of the duties of jumpmasters is to conduct the JMPI (Jumpmaster personnel inspection). The point of the built in deficiencies is to have the jumpmaster catch them in the JMPI. Now, I’m a dirty leg, but even I know you don’t even get on the bird unless your JMPI is done. So why didn’t the defense call a jumpmaster to say “these deficiencies were obvious and would have been caught in a JMPI and therefore NO ONE WOULD EVER JUMP WITH THIS RESERVE” and therefore kill the government’s case? Again, I’m a dirty leg. So someone more awesome than I (preferably someone who is both an Army static-line jumpmaster AND a lawyer) explain this to me.

  8. stewie says:

    And that’s probably the issue ArmyTC…if those facts were in the record, then perhaps a different result would have occurred…but because they were not, the record had the facts as these chutes were going to be given to jumpers who were then going to use them uncorrected and if THOSE are the facts then it’s pretty easy to get there IMO.
     
    IF the facts are, no, wouldn’t have happened, because some process would have intervened to make highly unlikely those chutes would have been used without being repaired, then it’s much harder to get there.

  9. Concerned Defender says:

    Sergeant X is down range with his unit.  He’s angry at Sergeant Z.  SGT X points his M4 at Sergeant Z.  Has a crime occurred, or are we speculating SGT X’s motives, intentions, whether the rifle is loaded, etc.?  Maybe the rifle is unloaded.  Maybe nothing happens… 
    Or how about this scenario.   SPC A is downrange, and as a joke, removes the firing pin from SPC B’s M4 before SPC B goes on combat mission or patrol.  Maybe they don’t engage in combat?  Is that an offense?  
    Or let’s change it to passive behavior.  SPC B notices his rifle isn’t working so takes it to the armorer 15 minutes before the convoy.  Armorer is busy and pencil whips it, and tells SPC B he fixed it.  Offense?
    I’d say in these situations you have offenses similar to this rigger.   We can speculate and guess, etc. but in reality you don’t want to be SGT Z or SPC B.  The natural and probable risk is lethal regardless of the low probability of the deadly event occurring. 
     
     

  10. Philip D Cave says:

    Sergeant X is down range with his unit.  He’s angry at Sergeant Z.  SGT X points his M4 at Sergeant Z.  Has a crime occurred, or are we speculating SGT X’s motives, intentions, whether the rifle is loaded, etc.?  Maybe the rifle is unloaded.  Maybe nothing happens…

     
    United States v. Davis, 73 M.J. 268?

  11. Charlie Gittins says:

    JM:
     
    I am an FAA rigger and I attended rigger school at NAS Lakehurst in 1877 working on round mains and reserves.  I think I know enough about how parachutes actually operate to comment.   SOmeone who is a paratrooper with no rigging credentials . . . not so much.

  12. Zachary D Spilman says:

    in 1877

    Man Charlie. You really have been around for a long time. 

  13. J.M. says:

    A pencil packed reserve requires both a main canopy malfunction and a failure of a previously properly packed reserve 

    The reserves weren’t properly packed. Had it been needed, it was likely that one would fail. And that doesn’t take into account ways that a reserve can fail and cause injury or death, without being deliberately deployed. A defective reserve can (and has) caught air in the aircraft and deployed. As I’ve said before, skydiving is not military static line. Much lower drop altitude and a much smaller margin for error when it comes to malfunctions during a jump.

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