UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           HAIGHT, PENLAND, and WOLFE
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Sergeant JARED D. HERRMANN
                          United States Army, Appellant

                                   ARMY 20131064

                            Headquarters, Fort Carson
                        Timothy Grammel, Military Judge
         Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate


For Appellant: Captain Patrick J. Scudieri, JA (argued); Colonel Kevin Boyle, JA;
Major Amy E. Nieman, JA; Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Captain Anne C. Hsieh, JA (argued); Major A.G. Courie III, JA;
Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief).


                                     18 April 2016

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

HAIGHT, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of willful dereliction in the performance of his duties and
reckless endangerment, in violation of Articles 92 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 934 (2012) [hereinafter UCMJ]. 1 The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for ten months, forfeiture of all pay and allowances, and reduction to
the grade of E-1.




1
 The military judge acquitted appellant of solicitation to commit an offense, false
official statement (two specifications), and obstruction of justice.
HERRMANN—ARMY 20131064

      This case is before our court for review under Article 66, UCMJ. 2 Appellant
assigns multiple errors and raises several issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). One of appellant’s assigned errors merits
discussion but no relief.

                                  BACKGROUND

       Appellant was a noncommissioned officer (NCO) parachute rigger in the 10th
Special Forces Group (Airborne) who was assigned as an In-Process (IP) inspector
of parachute packers at the Consolidated Parachute Rigging Facility at Fort Carson,
Colorado. An IP inspector ensures the parachutes are packed in accordance with the
appropriate training manual, guidelines, and standard operating procedures; ensures
that all intermediate rigger checks are conducted and satisfied; and signs off on the
final parachute pack reports and individual parachute pack logs. “Pencil packing”
refers to 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. At the rigging facility, not only are main parachutes packed
and readied for use, but so are reserve parachutes. For safety reasons, at least every
365 days, each reserve parachute is unpacked, re-packed, inspected, and signed off
as suitable for use and “airworthy.”

       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.

      For this, appellant was charged with and convicted of “wrongfully and
recklessly engag[ing] in conduct, to wit: failing to conduct Pack In-Process
Inspections as the designated Pack In-Process inspector of T-11 Reserve parachutes


2
 Oral argument in this case was heard in Columbus, Ohio on 11 January 2016 at the
Ohio State University Moritz College of Law as part of the Outreach Program of the
United States Army Court of Criminal Appeals.
                                          2
HERRMANN—ARMY 20131064

provided to Parachute Riggers under his supervision for packing, conduct likely to
cause death or grievous bodily harm to soldiers exiting an aircraft during airborne
operations with the T-11 Reserve parachutes that had not been repacked, which
conduct was to the prejudice of good order and discipline in the armed forces and
was of a nature to bring discredit upon the armed forces.”

       Appellant asserts his conviction of reckless endangerment is insufficient in
that the evidence did not show that pencil packing is likely to cause death or
grievous bodily harm.

                             LAW AND DISCUSSION

       The well-known and oft-cited test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we are ourselves] convinced of [appellant’s]
guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987). The test for legal sufficiency is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.” Id. at 324-25 (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      The elements of the offense of reckless endangerment charged under Article
134, UCMJ, as delineated by the President, are:

             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.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶
100a.b.

                                 Testimony at Trial

      In order to show the likely consequences of appellant’s willful dereliction, the
government presented to the fact finder the following testimonies. First, the NCO in
charge of the rigger facility decried pencil packing as “life threatening.” Then, he

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HERRMANN—ARMY 20131064

stated, “If parachutes are [compromised], lives are in danger and what I mean by
[compromised], if they weren’t packed as they were supposed to be, lives are
potentially in danger. If they weren’t inspected as they were supposed to be, lives
are potentially in danger.” To illustrate his point, this witness elaborated that if one
jumped and the main parachute lost its lift capability, and the reserve parachute with
its rigged-in deficiency such as a missing ejector spring was relied upon, the
“plausible outcome” would be death and “you would die” or at least “be injured
severely.”

       Second, the rigger shop Officer-In-Charge said that if one were to have
needed to employ one of the pencil packed parachutes with its now known
deficiencies, that user would “potentially die or get seriously hurt.” Furthermore,
this witness revealed that his testimony regarding the potentiality of death as a
consequence of this type of behavior was based upon his “seeing” a “daughter lose a
dad” as a result of “deficiencies in a reserve parachute or a parachute of any kind.”

       Third, the military’s T-11 parachute project lead, a Senior Aerospace
Engineer, explained that “everything with respect to a parachute, main or reserve, is
especially important when inspecting it to make sure that it’s airborne safe and
airborne certified to jump, ready to jump.” He further elaborated that a reserve
parachute with one of the specific deficiencies identified as existing in the pencil
packed chutes such as a missing ejector spring or inadequate closing loop could
either not quickly deploy or unintentionally deploy. In either scenario, the
deficiency could “potentially cause serious injury or death to the paratrooper.”

       One of the other IP inspectors at the facility on the day in question expressed,
“It’s dangerous, sir. There is a reason those parachutes have to be pulled down and
repacked because that reserve is the last line of defense for a jumper if there is an
issue with the main parachute. To put a product out on a jumper that’s not to
standard is not acceptable” and could lead to death if “that reserve is not to
standard.” This same witness continued, “I was the malfunctions officer on a
parachute fatality the December prior to that. It was a pretty brutal experience and I
was hypersensitive to the fact that potentially there was somebody missing a
[functional] reserve parachute.”

       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.” Appellant now argues “the government failed to prove that it was
likely that the reserve parachutes would have been necessary during a jump and, if
deployed, would have failed, and that failure would have [led] to death or grievous
bodily harm.” More specifically, appellant asserts the government’s failure of proof
is highlighted by the lack of admitting any evidence regarding failure rates of main

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HERRMANN—ARMY 20131064

parachutes, the success rate of deploying a reserve chute when needed, or the rate at
which instances involving the deployment of fully operational reserve parachutes
nevertheless still result in death or grievous bodily harm.

       Much like United States v. Gutierrez, the critical question in this case is “how
likely is likely?” 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal quotation
marks omitted). While the articulation of what “likely” means may be perceived as
amorphous, identifying what it cannot and does not mean is fairly straightforward.

                            What “Likely” Does Not Mean

       First, in accordance with Gutierrez, “likely” does not mean “more than merely
a fanciful, speculative, or remote possibility.” Id. at 65. In Gutierrez, our superior
court addressed this very issue, albeit in a human immunodeficiency virus (HIV)-
related aggravated assault scenario. The court stated that “nowhere in the UCMJ, in
the dictionary, or in case law, is ‘likely’ defined as ‘more than merely a fanciful,
speculative, or remote possibility’ as it is in HIV cases.” Id. at 66. Consequently,
that particular iteration of “likely” was rejected and two cases relying on that
language were expressly overruled. See id. at 67-68. While we note the now
discarded standard always required that the risk of harm be more than the
concededly very low standard of mere fancy, we understand our superior court’s
concern with the impression the language possibly left that the risk of harm need
only be remote or speculative. 3

       Second, “likely to produce death or grievous bodily harm” cannot mean one
thing in some fact scenarios and another thing in others. As stated in United States
v. Outhier, there is only one standard and the courts must apply one consistent
standard when evaluating different “means likely.” 45 M.J. 326, 328 (C.A.A.F.
1996). This point was echoed in Gutierrez with a caution against any sui generis
definitions of “likely.” 74 M.J. at 67. Accordingly, we must acknowledge that if
the language, “more than merely a fanciful, speculative, or remote possibility” is
eschewed for HIV-related cases, it must be equally disavowed for other scenarios
such as a beating and choking case (United States v. Weatherspoon, 49 M.J. 209
(C.A.A.F. 1998)), a beating of a sleeping victim case (United States v. Vigil, 3
U.S.C.M.A. 474, 13 C.M.R. 30 (1953)), a case of fraudulent exposure of one to a
drownproofing exercise (Outhier, 45 M.J. 326), as well as a firing a bullet into a
crowd case (Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook, para. 3-54-8.d n.4).




3
 For example, an outcome with a virtually certain chance of occurrence would have
unquestionably satisfied the now rejected standard of “more than fanciful, remote, or
speculative.”
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HERRMANN—ARMY 20131064

       Third and somewhat similar to the above point regarding consistent
interpretation, “likely to produce death or grievous bodily harm” does not mean one
thing for purposes of an aggravated assault charged under Article 128, UCMJ, and
another for purposes of a reckless endangerment charged under Article 134, UCMJ.
The government, at oral argument, astutely pointed out that Article 134 reckless
endangerment is based upon the Maryland reckless endangerment statute; an offense
which the Maryland courts have interpreted to be a gap-filling inchoate, perhaps
doubly inchoate, crime. See MCM, App. 23, Analysis of Punitive Articles (Reckless
endangerment), A23-26; Md. Ann. Code art. 27, § 120; see also Williams v. State,
100 Md. App. 468, 641 A.2d 990 (Md. Ct. Spec. App. 1994); Minor v. State, 326
Md. 436, 605 A.2d 138 (1992); Minor v. State, 85 Md. App. 305, 583 A.2d 1102
(Md. Ct. Spec. App. 1991). As such, the government urged that the offense of
reckless endangerment could require a degree of likelihood less than that required by
the offense of aggravated assault. Whatever the pros and cons of such an approach
may be, we are compelled to apply the same definition of “likely” to reckless
endangerment as to aggravated assault. Primarily, in his designation of reckless
endangerment under Article 134, the President listed “likely to produce death or
grievous bodily harm” as a required element and defined that element by reference
to that term’s definition under Article 128. See MCM, pt. IV, ¶¶ 100a.c.(5) and
54.c.(4)(a)(ii). Accordingly, we adhere to that definitional link between the two
offenses.

       Fourth, “likely” is not determined solely by risk of harm. Although Gutierrez
rejected some analytical language used to determine risk of harm, our superior court
did not jettison the historical two-pronged framework utilized to determine
likelihood. The likelihood of death or grievous bodily harm has been determined by
measuring and balancing two factors: (1) the risk of harm and (2) the magnitude of
the harm. Where the magnitude of harm is great, “likely” may be found to exist
even though the risk of harm is statistically low. See United States v. Dacus, 66
M.J. 235, 239-240 (C.A.A.F. 2008); Weatherspoon, 49 M.J. 209. Gutierrez only
overturned the past approach to the risk of harm prong (specifically, as how it
related to HIV-related cases), leaving unaddressed the magnitude of harm prong. 74
M.J. at 65 (“But this Court’s case law ‘does not state that because the magnitude of
the harm from AIDS is great, the risk of harm does not matter.’”) (quoting Dacus, 66
M.J. at 240 (Ryan, J., concurring)). Elementally, for the crimes of aggravated
assault and reckless endangerment, the severity of harm the government must prove
to be “likely” is already pre-set and established at the highest order of magnitude,
that is—death or grievous bodily harm. Thus, in those cases, factoring magnitude
into an analysis of likelihood could appear to be redundant.




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HERRMANN—ARMY 20131064

       We conclude the relevant analysis of magnitude of harm is more nuanced than
a simple evaluation of the extent of possible 4 injuries. Assessing magnitude of harm
can balance in the social utility of the actor’s conduct. See 1 Wayne R. LaFave,
Substantive Criminal Law § 5.4(a)(1), at 367 (2d ed. 2003). In other words, by
definition and by element, all cases charged as aggravated assault or reckless
endangerment are “high” magnitude cases, but factoring in social utility or the lack
thereof can help differentiate levels of magnitude. More simply put, the relative
needlessness of one’s actions plays a role in the analysis. For example, speeding
through crowded streets for the sheer thrill of it poses a greater harm to society than
doing the exact same thing for purposes of rushing one to the hospital in a case of
medical emergency. In this case, failing to inspect parachutes at a CONUS
installation in order to go home early is a far cry from forgoing an equipment
inspection of a Quick Reaction Force speeding out the door in response to a call
from troops in contact.

       Fifth, “likely to produce death or grievous bodily harm” must entail
something distinct, although not entirely unrelated, from simply “foreseeable.”
Foreseeability is a concept that is more directly applicable to the mens rea of the
crime. For an offer type assault, the act need only be “culpably negligent.” See
MCM, pt. IV, ¶ 54.c.(1)(b)(ii); UCMJ art. 128. For reckless endangerment, the
dangerous conduct must exhibit “a culpable disregard of foreseeable consequences”
in order to be reckless. See MCM, pt. IV, ¶ 100a.c.(3) (emphasis added); UCMJ art.
134. So, because “likely to produce” is an element apart and separate from
“reckless,” it follows that although those terms are clearly interrelated, proof that an
outcome was foreseeable does not per se mean that the element of “likely to
produce” has also been proven. 5

        Sixth and perhaps most importantly, in this context, “likely” does not mean
more likely than not. Nor does it require greater than 50% certainty. Appellant
complains his conviction is insufficient because the government did not provide the
statistics necessary to show his conduct was likely to produce death or grievous
bodily harm. We reject any notion that statistics are required in order for the
government to meet its burden in these cases. It is abundantly clear that likelihood



4
  We hasten to point out that for purposes of determining likelihood in cases such as
these, death or grievous bodily harm must be probable, not merely possible. See
Weatherspoon, 49 M.J. at 211. This observation, however, does not move the
analytical ball much forward because it simply begs the question of “how probable is
probable?”
5
  Even if “likely” and “foreseeable” were precisely coextensive, then the question in
these cases of “how likely is likely?” would simply transmute into “how foreseeable
is foreseeable?”
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HERRMANN—ARMY 20131064

determinations involve “magnitudes of probability, not mathematical certainty.”
Gutierrez, 74 M.J. at 67 n.6.

       While establishing a firm statistical threshold is not required or advisable, we
are confident that wherever the legal standard does rest, it is at a point less than
“more likely than not.” A likely consequence has been legally defined as one that is
“natural and probable.” MCM, pt. IV, ¶ 54.c.(4)(a)(ii) (emphasis added); see also
Gutierrez, 74 M.J. at 66. “Probable” is an extremely common term in legal lexicon,
one that has been definitively addressed by our superior court, albeit in the context
of “probable cause.” While our current analysis does not concern the Fourth
Amendment, the analogy is nevertheless useful. “So even though people often use
probable to mean more likely than not, probable cause does not require a showing
that an event is more than 50% likely.” United States v. Bethea, 61 M.J. 184, 187
(C.A.A.F. 2005) (citations and internal quotation marks omitted); see also United
States v. Macomber, 67 M.J. 214, 219 (C.A.A.F. 2009) (probable means less than
preponderance).

       In the hornbook Substantive Criminal Law, Professor LaFave extensively
addresses the question of how statistically “likely” must legally “likely” be and
stresses that the term “natural and probable” should not be interpreted to mean more
likely than not. 6 1 LaFave, § 5.4(g), at 377. For example, if a person holds a
revolver with a single bullet in one of the chambers, points the gun at another’s head
and pulls the trigger, then the risk of death is likely even though the odds that death
will result are no better than one in six. See People v. Hall, 999 P.2d 207, 217
(Colo. 2000).

      Specifically regarding homicidal risk, Professor LaFave comments that the
chances of producing death cannot and should not be measured in terms of
mathematical percentages. 2 LaFave, § 14.4(a), at 437-41. We agree.

             Thus it would be nice, but not possible, to create a table of
             homicidal risk [measured in percentages of chance of
             death] for purposes of distinguishing among homicidal
             crimes . . . .

             ....

             When defendant fired two bullets into the caboose of a
             passing train, thereby killing a brakeman, the chances
             were doubtless much greater that he would not kill than


6
  As a matter of illustration, Professor LaFave repeatedly comments that criminal
liability for crimes involving risk of death could attach when the chance of death is
as low as 1% or even less.
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HERRMANN—ARMY 20131064

             that he would kill. Perhaps the chances of killing were no
             more than 5%, taking into account the area of the side of
             the caboose in relationship to the space taken up by the
             vital parts of its occupants. In view of the lack of social
             utility in shooting into the side of the caboose, the risk of
             5% was held enough for murder in that case.

2 LaFave, § 14.4(a), at 439-40 n.22 (citing Banks v. State, 211 S.W. 217 (Tex. Crim.
App. 1919)). 7 We point out here that for offenses which do not require death or
great bodily harm to be actually inflicted, any determination of likelihood must
focus on the danger the conduct posed before any harm that occurred as a result of
that danger. The fact that something did occur does not alter the pre-existing
chances that a particular outcome would occur.

                              What “Likely” Does Mean

       In Gutierrez, our superior court held that “a plain English definition” should
be applied to determine likelihood of producing death or grievous bodily harm.
While we certainly concur with this approach, we have found its implementation
somewhat difficult. There are many reputable dictionaries and each contains
multiple definitions of the word “likely.” Furthermore, we have found the plain
English denotations of the term somewhat different than the same term’s
connotations, common usage, and synonyms. Definitions of “likely to occur” range
from “expected outcome” to “probable” to “something less than reasonably certain”
to “justifying belief of occurrence” to “might well happen.”

       Other than the previously stated position that “likely” is not a preponderance
standard, we decline to ascribe any more precision to that element. Consequently,
we adhere to the MCM’s explanation that a means, force, or conduct is likely to
produce death or grievous bodily harm when that is the natural and probable result
or consequence of that particular means, force, or conduct. See UCMJ arts. 128 and
134. This “likelihood” determination is made utilizing a common sense approach
and factoring in and balancing all relevant facts and circumstances. Ultimately, the
likelihood determination must clear a “reasonable threshold of probability.”
Gutierrez, 74 M.J. at 66.




7
 In military law, a depraved-heart murder charged under Article 118(3), UCMJ,
requires a dangerous act; an act “characterized by heedlessness of the probable
consequences of the act or omission, or indifference to the likelihood of death or
great bodily harm.” MCM, pt. IV, ¶ 43.c.(4)(a). Again, we note this offense also
deals with legal determinations of probable consequences and not mathematical
calculations of the precise odds of particular outcomes.
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HERRMANN—ARMY 20131064

                                   CONCLUSION

       In this case, we have considered the entire record, analyzed the evidentiary
facts and circumstances and how they apply to the required elements and standards,
and utilized the appropriate definitions of all pertinent terms. After drawing “every
reasonable inference from the evidence of record in favor of the prosecution,” we
determine the fact finder could have properly concluded appellant’s reckless conduct
was likely to produce death or grievous bodily harm. United States v. Blocker, 32
M.J. 281, 284 (C.M.A. 1991). Likewise, we ourselves share that conclusion.
Appellant’s conviction of reckless endangerment is both factually and legally
sufficient.

      The findings of guilty and the approved sentence are AFFIRMED.

      Judge PENLAND concurs.

WOLFE, J. concurring:

        In United States v. Gutierrez, our superior court addressed a case of
aggravated assault under Article 128, UCMJ, involving sex that included the
undisclosed risk of transmission of human immunodeficiency virus (HIV). 74 M.J.
61 (C.A.A.F. 2015). The Court of Appeals for the Armed Forces (C.A.A.F.) noted
that prosecutors lacked a specific punitive article addressing such misconduct and
have instead “relied on generally applicable punitive articles to litigate these cases.”
Id. at 67. Our superior court analogized charging such conduct under aggravated
assault as trying to “fit a round peg of conduct into a square hole of a punitive
statutory provision.” Id. (quoting United States v. Joseph, 37 M.J. 392, 402 (C.M.A.
1993) (Wiss, J., concurring in the result)). 1


1
  The C.A.A.F. found, as a matter of law, that a victim cannot meaningfully consent
to sexual intercourse without the disclosure of HIV status, and that the sexual act
therefore constituted “bodily harm.” Gutierrez, 74 M.J. at 67-68. In Gutierrez the
C.A.A.F. found the failure to disclose appellant’s HIV status constituted an
“offensive touching” as his partners “did not provide informed meaningful consent.”
Id. Accordingly, the proper charge would be either 1) sexual assault by bodily
harm; or 2) assault consummated by battery. UCMJ arts. 120(b)(1)(B), 128(a). In
other words, the focus of the offense is not the risk of transmission of an infectious
disease and its resulting harm, but rather whether the sexual conduct was
consensual. With that reasoning, the Gutierrez court affirmed the lesser-included
offense of assault consummated by battery as the victim had not provided
meaningful consent. 74 M.J. at 68. As is discussed below, however, the issue in

                                                                          (continued…)
(…continued)
                                          10
HERRMANN—ARMY 20131064


       Specifically, the C.A.A.F. was concerned that military law had “adopted a
definition of ‘likely’ that appears to be sui generis to HIV cases . . . .” Id. at 66.
The court echoed Judge Wiss’s concern in Joseph that “the law should not adopt a
sui generis standard in cases involving HIV exposure . . . and [that] similar concerns
guide our decision today.” Id. at 67.

       As the parties and practitioners will surely note, this court’s opinion today
addresses a case that does not involve the risk of transmission of HIV. Nor does this
case involve interpreting the offense of aggravated assault under Article 128, UCMJ.
Rather, this case involves determining whether appellant criminally endangered his
fellow soldiers when he “pencil packed” faulty parachutes. Thus, while it appears
that our superior court’s opinion in Gutierrez may have been intended to address the
narrow line of cases involving HIV, 2 today the majority opinion is compelled to
apply Gutierrez to entirely different circumstances.

       I concur with the majority’s opinion. Fidelity to our superior court’s
decision, which emphasized the necessity of “one standard,” requires applying
Gutierrez to all relevant cases, including this one. Id. at 66. I write separately only
to express some separate views about the effect of this universal application.

                        A. Defining the Lower Bound of “Likely”

       If Gutierrez made one point clear, it is that it is no longer good law to define
likely as “more than merely [a] fanciful, speculative, or remote possibility.” 68 M.J.
at 65 (citations and internal quotation marks omitted). It is also clear that the intent
of our superior court was that this “floor” on the definition of “likely” was


this case— while also turning on the definition of “likely”—is not a matter of
whether the government was trying to place a round peg into a square hole.
Reckless endangerment is certainly the appropriate “hole” for appellant’s alleged
misconduct. The issue, instead, is whether the government has met its burden of
proof that appellant’s conduct was “likely” to cause death or grievous bodily harm.
2
  Specifically, our superior court stated that the definition of “likely” in Gutierrez
was sui generis to HIV cases. Id. at 66 (“nowhere in the UCMJ, in the dictionary, or
in case law, is “likely” defined as “more than merely a fanciful, speculative, or
remote possibility” as it is in HIV cases.”). As this case demonstrates, however, the
definition of likely discussed in Gutierrez has been applied to all manner of cases of
aggravated assault and reckless endangerment. See, e.g., Dep’t of Army, Pam. 27-9,
Legal Services: Military Judges’ Benchbook, paras. 3-54-8.d n.4 (Aggravated
Assault), 3-100a-1.d n.2 (Reckless Endangerment) (10 Sept. 2014) (describing the
instruction appropriate for any case where the likelihood of death or grievous bodily
harm is at issue).
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HERRMANN—ARMY 20131064

inappropriately low. That is, the Gutierrez court would have surely agreed that a
fanciful, speculative or remote possibility always failed to constitute a “likely”
possibility. Therefore, the C.A.A.F.’s apparent fear was that a panel, presented with
evidence that was only a tad more than fanciful, might convict inappropriately. In
other words “likely” means more than “more than merely a fanciful, speculative, or
remote possibility.”

        My initial concern is that by deleting the lower bound of the definition of
“likely,” we invite the very result that the C.A.A.F. appears to have been trying to
avoid. Prior to Gutierrez, a panel was at least instructed that a fanciful, speculative
or remote possibility was insufficient to establish guilt. 3 What instruction now
guides a panel away from finding that “a fanciful, speculative, or remote” possibility
falls within the definition of likely? Put simply, if the examples of probabilities
(e.g., fanciful, etc.) at the lower bound of the definition of “likely” were insufficient
to protect an accused against a wrongful conviction, they should be replaced, not
deleted.

       While this danger was perhaps not presented in Gutierrez, it is not difficult to
imagine a case where informing the panel that the definition of “likely” excludes
possibilities that are fanciful, remote or speculative serves to prevent—rather than
cause—an unjust verdict for the accused. Consider the defense counsel who could
previously argue that an event was “speculative” or “remote” and then have his
arguments backstopped by the military judge’s instructions on those same words.
Now such counsel may only argue that an event is not “likely.” 4 If pressed, given
both this court’s and C.A.A.F.’s reluctance to further define the word, a military
judge may resist providing further explanation beyond the admonition that the panel
apply the “plain English definition” as stated by the C.A.A.F. Gutierrez, 74 M.J. at
63.

      The majority, correctly, follows Gutierrez and declines to define the lower
bound of “likely” with any more precision than our superior court. I write


3
  Stated differently, the Gutierrez court saw the requirement that the risk be “more
than merely a fanciful, speculative, or remote possibility” as a sword that improperly
exposed the accused to criminal liability. The court appeared to interpret this phrase
as inferring that anything more than a fanciful, speculative or remote possibility met
the definition of likely. As such, the definition was insufficient. At least in some
cases, however, the definition also served as a shield that protected the accused.
4
 Arguably this was the case in Gutierrez. In Gutierrez, the court noted that the
government’s own expert testified that the risk of HIV transmission was only
“remotely possible.” Id. at 67 (emphasis added). Thus, in Gutierrez the appellant
could have used the instructions on “remote”—now inapplicable—to argue that the
government had failed to meet their burden of proof.
                                           12
HERRMANN—ARMY 20131064

separately because I see a new risk that an accused is convicted on legally
insufficient evidence. I see no harm in informing a panel that criminal liability does
not attach to fanciful, speculative, or remote possibilities of harm. This was as true
before Gutierrez as it is after.

    B. Purpose of Reckless Endangerment and the Upper Bound on the Definition of
                                      “Likely”

       On appeal, and emphasized during oral argument, appellant asserts that
“likely” means “more likely than not.” While I concurred above that our ability to
further define “likely” is controlled by our superior court’s opinion in Gutierrez, I
believe we are compelled to answer the question posed by appellant. For me, at
least, whether the evidence is factually sufficient turns on the issue. In United
States v. Pease, the C.A.A.F. stated that “in light of [our] responsibility” to apply
the law to the facts in conducting our factual sufficiency analysis, we must
“determine the correct, applicable law” in a case. 75 M.J. __, 2016 CAAF LEXIS
235 at *10-11 (C.A.A.F. 17 Mar. 2016) (finding no error in the Navy-Marine Corps
Court of Criminal Appeals defining the meaning of an element).

       If in determining the meaning of “likely” the danger of setting the bar too low
risks an accused’s improper conviction, the danger of setting the bar too high falls
on society. The President has explained that the offense of reckless endangerment
“is intended to prohibit and therefore deter reckless or wanton conduct that
wrongfully creates a substantial risk of death or grievous bodily harm to others.”
Manual for Courts-Martial, United States (2012) [hereinafter MCM], pt. IV, ¶
100a.c.(1) (emphasis added). That is, the purpose of this offense is to prevent
dangerous reckless conduct.

        Viewed through the lens of the President’s explanation, and especially as
applied to the offense of reckless endangerment, I agree with the majority’s analysis
of the definition of “likely.” In order to capture the “substantial risk” of death or
grievous bodily harm, the President has proscribed reckless conduct that is “likely”
to result in grievous bodily harm. The majority properly rejects appellant’s
assertion that “likely” must be synonymous with “most likely” or “more likely than
not.” 5

       The President’s crafting of the offense of reckless endangerment would be
incongruous if one could create a “substantial risk” of death or grievous bodily
harm, but have that same risk be un-likely to result in death or grievous bodily harm.
In other words, one does not deter the reckless creation of substantial risks of death


5
  “More likely than not” is a familiar standard under the law (i.e., “preponderance”).
Surely, if our superior court in Gutierrez intended “likely” to mean “more likely
than not” they would have said so.
                                          13
HERRMANN—ARMY 20131064

and grievous bodily harm—as the President said was the intent—if such conduct is
not included within the ambit of “likely.” The majority’s citation to treatise and
case law amply bears this out. And, on this matter, we are not blazing a new trail
but are instead treading on well-worn ground. See 2 Wayne R. LaFave, Substantive
Criminal Law § 14.4(a), at 437 (2d. ed. 2003); Black’s Law Dictionary (10th ed.
2014) (definitions of likely include “showing a strong tendency; reasonably
expected”). As the United States Court of Appeals for the Third Circuit said in a
different context: A “likelihood of success on the merits” means that a plaintiff has
“a reasonable chance, or probability, of winning.” Singer Mgmt. Consultants, Inc. v.
Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc). It “does not mean more likely
than not.” Id.

       One who places a single round in a revolver and pulls the trigger while
pointing the weapon at someone’s head has created the substantial risk of death. As
cited by the majority, two definitions of likely include “justifying belief or
occurrence” and “might well happen.” Death is likely if you attempt to fire a
partially loaded revolver at someone. 6 Death is the “natural and probable
consequence” of that act. See MCM, pt. IV, ¶ 100a.c.(5) (explaining that one may
infer a result is “likely” if the result is the natural and probable consequence of the
conduct).

                         CONCURRENCE CONCLUSION

       In the present case, appellant’s misconduct was likely to cause death or bodily
harm to his fellow soldiers. That an improperly packed reserve parachute would
result in death or grievous bodily harm was foreseeable, likely, and would have been
the natural and probable outcome of his actions, even if, as appellant asserts, the
government failed to prove that such an event was more likely than not. 7

       More generally, I do not have confidence that the “plain English definition”
of “likely” provides clear guidance to the fact finder. There are numerous
definitions of “likely” that fall all along the spectrum of probability. Appellant’s
assertion that “likely” means “more likely than not,” while rejected, is not without
support. Furthermore, if the definition of “likely” is “plain” it surely could be
restated in an opinion. Instead, the majority finds itself declining to be as precise as


6
  If “likely” were understood to mean “more likely than not” death would only be
“likely” if at least four of the six chambers were loaded.
7
  Consider that appellant would be no more guilty (or less) of this offense if his
actions had in fact resulted in death or grievous bodily harm. It is a complete
defense to the crime of reckless endangerment that, although death was in fact
caused, death was not “likely.” Reckless endangerment punishes the reckless, not
the unlucky .
                                           14
HERRMANN—ARMY 20131064

it may have been absent Gutierrez. United States v. Herrmann, 75 M.J. __, ARMY
20131064, slip op. at 9 (Army Ct. Crim. App. 18 Apr. 2016).

       Given the many and varied definitions of “likely” contained in standard
English dictionaries, we risk inconsistent application of the term—incurring at least
some risk to both the accused and society. If I were writing on a clean slate, I would
adopt the definition of “likely” included in Black’s Law Dictionary of “reasonably
expected.” By requiring that the definition include an aspect of “reasonableness” we
ground the definition in law, satisfy our superior court’s requirement that the
definition meet some “minimum threshold of probability,” avoid confusion regarding
“remote,” “speculative,” or “fanciful” possibilities, and provide guidance to the fact
finder regarding a term which is used in everyday English but with a variety of
meanings. However, I concur with the majority because—as to the definition of
“likely”—we are required to follow our superior court’s determination that the
“plain English definition” shall apply. Thus, while we must address appellant’s
contention that “likely” means “more likely than not” to make a factual sufficiency
determination in this case, we should not further define the term.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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