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.
As an enumerated offense under Article 134, reckless endangerment’s elements are prescribed by the President as:
(1) That the accused did engage in conduct;
(2) That the conduct was wrongful and reckless or wanton;
(3) That the conduct was likely to produce death or grievous bodily harm to another person; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s brief relies heavily on CAAF’s decision in 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, for the principle that the third element of likely to produce death or grievous bodily harm means that the prosecution had to prove that a parachute failure was likely and not merely that such harm was the likely result of a parachute failure. Based on this premise, Herrmann’s brief offers five areas of insufficiency in the prosecution’s case:
The government put on either no or insufficient evidence regarding the likelihood of:
1) the reserve parachute making it through in-house checks;
2) the reserve parachute getting onto a prospective jumper;
3) JMPI not catching the deficiency;
4) the prospective jumper making it onto an aircraft;
5) the prospective jumper exiting the aircraft;
6) the main parachute failing to the point a reserve parachute is needed;
7) the jumper activating the reserve parachute; and
8) the reserve parachute failing because it was not re-packed.
App. Br. at 9 (paragraphing added).
The Army Appellate Government Division’s answer rejects these eight deficiencies as “appear[ing] to demand a level of proof that is simply not the standard required.” Gov’t Div. Br. at 23. Furthermore, the Division asserts that the discussion of the meaning of likely in Gutierrez does not apply to the use of the term likely in the offense of reckless endangerment:
It is . . . reasonable to infer that, when the President enumerated the offense of reckless endangerment, his express reference to the Article 128 definition of “likely” was largely due to an intent to employ the Joseph/Johnson proposition that had developed in HIV-related aggravated assault cases. Accordingly, this Court’s recent abandonment of that standard in Gutierrez may run contrary to what was originally intended for reckless endangerment under Article 134.
Gov’t Div. Br. at 14. The Division suggests that the offense is intended “to capture conduct that may not necessarily arise to aggravated assault, but nonetheless creates a substantial and unjustified risk of death or bodily harm.” Gov’t Div. Br. at 18. And,
In this case, the evidence was sufficient to prove that death or grievous bodily harm was a natural and probable consequence of appellant’s willful failure to inspect and ensure the parachutes were properly packed.
Gov’t Div. Br. at 21.
Herrmann’s reply brief highlights that the Appellate Government Division’s argument largely hinges on CAAF finding that the term likely doesn’t have a consistent meaning:
Contrary to the government’s assertions regarding Gutierrez, the term “likely” does not mean one thing for aggravated assault under Article 128 and another thing for reckless endangerment under Article 134.
Reply Br. at 2.