This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jared D. HERRMANN, Sergeant
United States Army, Appellant
No. 16-0599
Crim. App. No. 20131064
Argued April 5, 2017—Decided June 19, 2017
Military Judge: Timothy Grammel
For Appellant: Captain Patrick J. Scudieri (argued); Colo-
nel Mary J. Bradley, Lieutenant Colonel Melissa R.
Covolesky, Major Christopher D. Coleman, and Captain
Cody Cheek (on brief).
For Appellee: Major Anne C. Hsieh (argued); Colonel Mark
H. Sydenham and Lieutenant Colonel A. G. Courie III (on
brief); Captain Samuel E. Landes.
Amicus Curiae for Appellant: Christopher M. Calpin (law
student) (argued); Lauren E. Bartlett, Esq. (supervising at-
torney) (on brief)—Claude W. Pettit College of Law, Ohio
Northern University.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and SPARKS, joined.
_______________
Judge OHLSON delivered the opinion of the Court.1
A military judge sitting alone as a general court-martial
convicted Appellant, contrary to his pleas, of one specifica-
tion of willful dereliction of duty and one specification of
reckless endangerment, in violation of Articles 92 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
1 We heard oral argument in this case at the Claude W. Pettit
College of Law, Ohio Northern University, Ada, Ohio, as part of
the Court’s “Project Outreach.” See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed as
part of a public awareness program to demonstrate the operation
of a federal court of appeals and the military justice system.
United States v. Herrmann, No. 16-0599/AR
Opinion of the Court
934 (2012). The military judge sentenced Appellant to a re-
duction in grade to E-1, forfeiture of all pay and allowances,
confinement for ten months, and a bad-conduct discharge.
The convening authority approved the sentence as adjudged.
Upon review, the United States Army Court of Criminal
Appeals (CCA) affirmed the findings and the approved sen-
tence. See United States v. Herrmann, 75 M.J. 672, 678 (A.
Ct. Crim. App. 2016). We granted review on the following
issue:
Whether the evidence is legally sufficient to find
Appellant committed reckless endangerment,
which requires proof the conduct was likely to pro-
duce death or grievous bodily harm.
United States v. Herrmann, 75 M.J. 467, 468 (C.A.A.F.
2016).
Upon viewing the evidence in the light most favorable to
the Government, we conclude that a rational trier of fact
could have found that Appellant’s conduct in this case was
likely to produce death or grievous bodily harm. Accordingly,
we affirm the decision of the CCA.
I. Background
During the relevant time period, Appellant served in the
10th Special Forces Group (Airborne) at Fort Carson, Colo-
rado, and supervised soldiers who packed parachutes at the
Consolidated Parachute Rigging Facility located there. In
his supervisory capacity, Appellant was responsible for en-
suring that the soldiers packed the parachutes in accordance
with the applicable training manual. Further, Appellant was
responsible for signing off on each repacked parachute, sig-
nifying that the parachutes had been properly packed and
inspected and were suitable for use.
In February of 2013, Appellant supervised three packers
who were detailed to repack sixteen parachutes each, ap-
proximately fourteen of which were reserve parachutes later
identified as being “pencil packed.”2 These reserve para-
2 “Pencil packing” refers to illicit conduct where a soldier re-
sponsible for packing or inspecting a parachute fails to do so, but
then falsely indicates in writing that the proper packing and in-
2
United States v. Herrmann, No. 16-0599/AR
Opinion of the Court
chutes had two important characteristics. First, they were at
the end of their 365-day cycle. In other words, these para-
chutes had last been packed a year earlier and, according to
standard operating procedures, needed to be repacked in or-
der to ensure that the passage of time had not affected their
“airworth[iness].” Second, this particular group of reserve
parachutes had recently been used as training aids during
the Jumpmaster Personnel Inspection class. Consequently,
certain deficiencies had been purposely rigged into these
parachutes to ensure that trainees could properly identify
safety issues.
On the day in question—and in an effort to go home ear-
ly—Appellant obtained from the soldiers he was supervising
an agreement to participate in a plan to “pencil pack” these
particular reserve parachutes. As a result, even though Ap-
pellant knew that the parachutes had not been opened, ex-
amined, repacked, and inspected according to the training
manual, Appellant simply signed the appropriate Depart-
ment of the Army form and the parachute logbook, falsely
attesting that he had inspected the parachutes at every
checkpoint and that they were airworthy. These “pencil-
packed” parachutes were then placed back into the “ready-
for-issue” cage.
After a sergeant at the Consolidated Parachute Rigging
Facility became suspicious about the speed with which some
of these parachutes had been packed, the noncommissioned-
officer-in-charge (NCOIC) inspected them. He discovered
such deficiencies as missing ejector springs and defective
closing loops.
Based on the ensuing investigation, Appellant was
charged with a variety of offenses, to include reckless en-
dangerment. At trial, the soldiers who had been supervised
by Appellant admitted to the “pencil-packing” incident. The
Government also introduced evidence on the following
points:
specting procedures were followed. See United States v.
Herrmann, 75 M.J. 672, 673 (A. Ct. Crim. App. 2016).
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Opinion of the Court
(a) Ejector Springs
(i) ejector springs thrust a canopy outward and are criti-
cal to the proper opening and quick deployment of a reserve
parachute;
(ii) some of the “pencil-packed” reserve parachutes were
missing ejector springs;
(iii) a lack of ejector springs can result in a delay in the
opening of a reserve parachute, “potentially caus[ing] seri-
ous injury or death to the paratrooper”;
(b) Closing Loops
(i) closing loops keep the parachute canopy secure within
the pack tray, preventing the parachute from unintentional-
ly deploying;
(ii) some of the “pencil-packed” parachutes had knots in
their closing loops;
(c) Cotton Ties
(i) cotton ties that are part of the parachute rigging can
degrade due to moisture (such as from rain or humidity);
(ii) the opening shock from a deployed parachute that
has degraded cotton ties may be unusually violent, causing
the parachute not to open properly;
(d) Unintentional Deployment
(i) a senior aerospace engineer testified that if a jumper
had been issued one of these defective reserve parachutes
and was merely standing in the doorway of the aircraft pre-
paring to jump, the reserve parachute could have uninten-
tionally deployed because of closing loops that had been
stretched out over time;
(ii) this unintentional deployment of the reserve para-
chute then could have extracted the jumper from the air-
craft, “potentially [resulting in] a severe injury, if not lead-
ing to death”; and
(e) Potential for Death or Grievous Bodily Harm
(i) the NCOIC at the parachute rigging facility testified
that jumpers “can potentially die or get seriously hurt” if
they use a “pencil-packed” parachute, and he knew how defi-
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Opinion of the Court
ciencies in parachutes “can potentially cause death” because
he had “seen a daughter lose a dad.”
II. Analysis
We review questions of legal sufficiency de novo. United
States v. Ashby, 68 M.J. 108, 115 (C.A.A.F. 2009). In con-
ducting this legal sufficiency review, “the relevant question
an appellate court must answer is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United
States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (internal quo-
tation marks omitted) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
Although Appellant acknowledges the applicability of
this standard of review to the instant case, he argues that
his conviction for reckless endangerment cannot withstand a
legal sufficiency review by this Court. Specifically, Appellant
avers that our recent decision in United States v. Gutierrez,
74 M.J. 61 (C.A.A.F. 2015), serves as binding precedent in
this case, and that the Gutierrez decision precludes this
Court from concluding that, under the attendant circum-
stances, Appellant’s conduct was “likely” to result in death
or serious bodily harm. We disagree both with Appellant’s
premise and his conclusion.
A. Applicability of Gutierrez
First, we conclude that our holding in Gutierrez is not
particularly relevant to, or particularly helpful in deciding,
the instant case. In Gutierrez the appellant was convicted at
trial of aggravated assault for engaging in sexual activity
with multiple partners without first disclosing that he was
infected with the human immunodeficiency virus (HIV). Id.
at 63. A government expert at the court-martial testified
that, in a worst case scenario, the appellant’s conduct had a
1-in-500 chance of producing death or grievous bodily harm.
Id. On appeal, this Court concluded that the appellant’s con-
viction for aggravated assault was not legally sufficient be-
cause this statistic did not meet the element of “likely” to
produce death or grievous bodily harm: “[I]n law, as in plain
English, an event is not ‘likely’ to occur when there is a 1-in-
500 chance of occurrence.” Id. at 67.
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Opinion of the Court
Gutierrez differs substantially from the instant case.
Gutierrez was a highly fact-specific case involving the prob-
ability of transmitting HIV, as demonstrated by scientifical-
ly derived statistics. The instant case involves the likelihood
of “pencil-packed” parachutes causing parachutists to expe-
rience death or serious bodily harm, where the probability of
that harm cannot be determined either scientifically or with
any degree of precision.
Further, our holding in Gutierrez was intended as a
course correction where a minimalist approach regarding
what constitutes “likely” had crept into our jurisprudence in
HIV cases. Specifically, in United States v. Joseph, we had
ratified the notion that the term “likely” equates to anything
more than “‘merely a fanciful, speculative, or remote possi-
bility.’” 37 M.J. 392, 397 (C.M.A. 1993) (quoting United
States v. Johnson, 30 M.J. 53, 57 (C.M.A. 1990)). In
Gutierrez, we decided to “expressly overrule” Joseph and the
low standard for “likely” which had been used in that case.
74 M.J. at 68.
Finally, our decision in Gutierrez stands for the proposi-
tion of what does not constitute “likely”; it provides no defin-
itive answer that we can adopt in the instant case about
what does constitute “likely.” Thus, contrary to Appellant’s
argument, our holding in Gutierrez is not dispositive of the
instant case.
B. Meaning of “Likely”
The only contested point in the case before us is what the
term “likely” means in the context of the third element of the
offense of reckless endangerment. This element reads as fol-
lows: “That the conduct was likely to produce death or griev-
ous bodily harm to another person.” Manual for Courts-
Martial, United States pt. IV, para. 100a.b.(3) (2012 ed.)
(MCM) (emphasis added).
We preliminarily note two points. First, the concept of
what constitutes “likely” must be applied consistently from
one UCMJ offense to another. United States v. Outhier, 45
M.J. 326, 328 (C.A.A.F. 1996); see MCM pt. IV, para. 54.b.(4)
(Article 128—Aggravated assault); MCM pt. IV, para.
100a.c.(5) (Article 134—Reckless endangerment). And se-
cond, the question of whether certain conduct is “likely” to
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Opinion of the Court
result in death or grievous bodily harm must be measured
by two factors: one, the risk that harm will actually occur;
and two, the magnitude of that harm if it does occur. See
United States v. Dacus, 66 M.J. 235, 239–40 (C.A.A.F. 2008).
We conclude that a “plain language” analysis of the rele-
vant 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 con-
duct 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
C. Legal Sufficiency Analysis
Applying an everyday understanding of the term “likely”
to the totality of the circumstances in the instant case, we
conclude that Appellant’s conviction for reckless endanger-
ment is legally sufficient. We preliminarily note that there
can be little doubt that if one of the “pencil-packed” reserve
parachutes had unintentionally deployed as a jumper pre-
pared to exit an aircraft, or if one of those parachutes had
failed to deploy when a jumper required one due to a mal-
function with his or her main parachute, death or grievous
3 “Although MCM explanations of offenses are not binding on
this Court, they are generally treated as persuasive authority to
be evaluated in light of this Court’s precedent.” United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citations omitted).
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Opinion of the Court
bodily harm would almost certainly have been the result.
Accordingly, we conclude that the second prong of the Dacus
test pertaining to the magnitude of the potential harm has
been met here. See Dacus, 66 M.J. at 239–40. Therefore, our
primary focus must be on the first factor—whether it was
likely that the harm would actually occur. See id. Specifical-
ly, in the instant case we must analyze whether it was likely
that one of the “pencil-packed” reserve parachutes actually
would have been issued to a paratrooper, and then whether
it would have malfunctioned aboard an aircraft or during a
jump.
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:4 (a) the “pencil-
packed” reserve parachutes were placed in the “ready-for-
issue” cage, and thus were subject to distribution to para-
troopers during the next 365-day cycle; (b) these parachutes
were no longer airworthy because of significant safety defi-
ciencies 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 defi-
ciencies 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.
Therefore, we conclude that the evidence in the instant case
is legally sufficient to find that Appellant committed the of-
fense of reckless endangerment.
4 We note, of course, that throughout a court-martial the bur-
den 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 govern-
ment. 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 par-
achutes likely would have been issued to paratroopers, and that
they likely would have malfunctioned aboard an aircraft or during
a jump.
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Opinion of the Court
III. Conclusion
The decision of the United States Army Court of Crimi-
nal Appeals is hereby affirmed.
9