CAAF will hear oral argument in the Army case of United States v. Herrmann, No. 16-0599/AR (CAAFlog case page), on Wednesday, April 5, 2017, at 2:00 p.m., at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio. The court will review the legal sufficiency of the appellant’s conviction of reckless endangerment in violation of Article 134 for the pencil packing of parachutes, which is when a parachute is not properly packed or inspected but is fraudulently reported as being properly packed and inspected. It 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.
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.
The convictions were based on 14 parachutes that were pencil packed. Each of the parachutes had deficiencies deliberately introduced into their packing for training purposes, and Herrmann was the inspector responsible for ensuring that they were properly re-packed prior to being returned to service. The parachutes were, however, reserve type parachutes that would only be used if the jumper’s primary parachute failed somehow. None of the 14 parachutes was ever issued for a jump, nevertheless Herrmann was prosecuted for reckless endangerment based on the possibility of death that could have resulted had any been issued and then failed to work.
At trial Hermann’s defense focused on the speculative nature of any such harm, with his defense counsel arguing in closing that:
Everything they [the prosecutors] have produced is speculative, well, it could happen, but they have not produced any evidence that if those things failed – those deficiencies failed that this is a likely result.
App. Br. at 8. Hermann now takes that argument to 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.