UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           KERN, ALDYKIEWICZ, and MARTIN
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Specialist JEFFERY L. LECLAIR
                          United States Army, Appellant

                                   ARMY 20120082

                              Headquarters, Fort Bliss
                         David H. Robertson, Military Judge
                    Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Captain A. Jason Nef, JA; Captain Ian
M. Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Major Alison L Gregoire, JA (on brief).

                                    24 January 2014
                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------

KERN , Senior Judge:

       A military judge sitting as a general court-martial convicted appellant
pursuant to his pleas of three specifications of false official statement in violation of
Article 107, Uniform Code of Military Justice. 10 U.S.C. § 907 (2006) [hereinafter
UCMJ]. Appellant contested two specifications of aggravated sexual assault of a
junior female soldier under Article 120, UCMJ, and a panel composed of officer and
enlisted members acquitted him of those specifications. The panel then sentenced
appellant to a bad-conduct discharge and confinement for one year for the three false
official statements. The convening authority approved the adjudged sentence.

       Appellant raises three assignments of error for our review under Article 66,
UCMJ. Only one of these warrants discussion, but not relief. However, before
addressing that assignment of error, we also take action to correct an error by the
military judge, not raised by the parties, with respect to the finding of guilty to
Specification 1 of Charge I.
LECLAIR—ARMY 20120082

         At trial, appellant pled guilty to S pecification 1 of Charge I, except the
words, “and that he didn’t sleep with [M], or words to that effect.” The military
judge accepted this plea and also confirmed with the government that they would not
present evidence regarding the excepted words. The government did not present any
evidence regarding those words. Nonetheless, the military judge found appellant
guilty of the specification as written, failing to except out the language that
appellant excepted out in his plea. We will correct this error by the military judge in
our decretal paragraph. We also note that there was no prejudice to the appellant
because the panel was only informed of appellant’s guilt to the specification as pled,
which is identical to the specification as approved by this court. 1 Therefore, we
need not reassess the sentence in this case.

                                       FACTS

        Appellant alleges that he was denied his Sixth Amendment right to effective
assistance of counsel during the presentencing phase of his court-martial because his
trial defense counsel failed to present any evidence , except his brief unsworn
statement, in extenuation and mitigation. In support of his allegation, appellant
asserts in an affidavit that following the contested portion of his trial, his defense
counsel informed him that calling witnesses was not necessary and a waste of time
because he had been acquitted of the most serious offenses and would likely receive
“Article 15-like punishment.” Appellant also offers on appeal three documents (one
affidavit and two unsigned proffers) concerning expected testimony from witnesses
that had been available during the trial on the merits and were pote ntial witnesses
for sentencing. In addition, appellant states in his affidavit that he desired a “good
soldier book” documenting achievements from his more than ten-year Army career
be admitted for consideration by the panel on sentencing.

       Upon motion by the government, this court ordered affidavits from
appellant’s two trial defense counsel to address appellant’s ineffective assistance of
counsel claims. In their affidavits, the two counsel denied appellant’s claim that
they told him it would be a waste of time to call witnesses, and they also offered
tactical reasons for not introducing appellant’s “good soldier book” and not calling
witnesses to speak about appellant’s character and military performance. The
paramount concern for the defense counsel was that they did not want to risk
opening the door to either reference to or admission of a prior Article 15 and adverse




1
  The flyer containing the specifications that appellant pled guilty to and that was
given to the panel members (Appellate Exhibit XIII) reflects Specification 1 of
Charge I as pled to by appellant (without the excepted language) and approved by
this court.


                                           2
LECLAIR—ARMY 20120082

evaluation from appellant’s records that were not admitted at trial 2, but were known
to be in the possession of the government as potential rebuttal evidence.

                                         LAW

      Military appellate courts apply the Supreme Court’s test for effectiveness of
counsel articulated in Strickland v. Washington, 466 U.S. 668 (1984), including the
presumption of competence announced in United States v. Cronic, 466 U.S. 648
(1984). United States v. Grigoruk, 56 M.J. 304, 315 (C.A.A.F. 2000). In Strickland,
the Supreme Court provided a two-part test to decide claims of ineffective counsel:

             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             “counsel” guaranteed the defendant by the Sixth
             Amendment. Second, the defendant must show that the
             deficient performance prejudiced the defense. This
             requires showing that counsel’s errors were so serious as
             to deprive the defendant of a fair trial, a trial whose result
             is reliable.

466 U.S. at 687; United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).
Generally, appellate courts “will not second-guess the strategic or tactical decisions
made at trial by defense counsel.” United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001) (citing United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).
To show prejudice, appellant “must show that there is a reasonable probability, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694

                                    DISCUSSION

       In support of his allegation of ineffective assistance of counsel , appellant
cites four specific sources of evidence that his counsel failed to introduce during the
presentencing phase of his trial. These sources of evidence were the testimony of
First Sergeant (Retired) (1SG) B, Specialist (SPC) W, and KT (who had previously
served with appellant), and a good soldier book containing various achievements of
appellant throughout his ten-year career.

      Regarding the good soldier book, we are convinced that there was no def icient
performance with trial defense counsel ’s decision not to introduce appellant’s good



2
  Appellant was found guilty under Article 15, UCMJ, of cruelty and maltreatment of
a junior female soldier. The adverse evaluation contained negative comments that
appellant did not comply with regulations and did not follow the code of conduct.

                                           3
LECLAIR—ARMY 20120082

soldier book into evidence for sentencing. 3 This book consisted primarily of
certificates of training, certificates of achievement, and awards , the most significant
of which were also recorded on appellant’s Enlisted Record Brief that was already
admitted into evidence. With knowledge that the government had military records
with derogatory information pertaining to appellant, the decision to avoid opening
the door to admission of those derogatory records was a sound tactical decision and
clearly not ineffective. 4 Similarly, we also find that there was no deficient
performance in the decision not to call 1SG (Retired) B as a witness. 5 Although we
dispute the defense counsels’ concern that it would have opened the door to
derogatory records of appellant (because the proposed testimony and derogatory
information covered different time periods), we do not second-guess the tactical
decision not to call 1SG (Retried) B because of the uncontradicted affidavit of one
of the trial defense counsel who interviewed the witness and elicited his opinion that
appellant was not a “top performer.”

       We resolve the alleged failure to call the other two witnesses 6 who appellant
claims should have been called during presentencing on Strickland’s prejudice
prong. Appellant was a military policeman with more than ten years of military
experience and was being sentenced for making false official statements regarding
an investigation into his allegedly nonconsensual sexual encounter with a junior
soldier. Although both of these witnesses would have testified about appellant’s

3
  At the conclusion of evidence on the contested offenses and while the panel was
deliberating on findings, trial defense counsel moved to admit appellant’s good
soldier book for sentencing. The government objected on foundational grounds.
The military judge then asked trial defense counsel whether they desired the rules of
evidence to be relaxed for admission of the good soldier book. Trial defense counsel
requested to defer that decision until after the panel announced findings on the
contested offenses. Trial defense counsel did not renew their effort to admit the
good soldier book during the presentencing phase of the trial.
4
 The government attempted in their sentencing argument to admit an adverse
evaluation of appellant and the defense was effective in keeping it out. Any
relaxation of the rules of evidence would have opened the door for t he government
to re-offer and admit adverse evidence previously excluded.
5
 We note that appellant neither attests nor does he offer a signed attestation by the
witness on what the witness’s testimony would have been. Appellant offers only
what amounts to an unsigned proffer from 1SG (Retired) B that does not address
appellant’s performance relative to others. Therefore, this proffer is not in direct
conflict with appellant’s trial defense counsel’s assertion in his affidavit th at 1SG
(Retired) B would say that appellant was not a “top performer.”
6
  In support of what these witnesses would have testified to, appellant offers a
signed affidavit from one and an unsigned proffer from another.


                                           4
LECLAIR—ARMY 20120082

good character, duty performance and rehabilitative potential, we are convinced that
these witnesses would have had very limited impact. These witnesses were both
junior soldiers without any supervisory responsibility over appellant . Without
deciding whether or not failure to call these witnesses on sentencing was error, we
find these two witnesses would not have produced a different sentencing result for
appellant. 7

                                   CONCLUSION

       After considering all of appellant's allegations o f errors, we find them to be
without merit. With regards to Specification 1 of Charge I, we approve only a
finding of guilty: “In that Specialist (E-4) Jeffrey Leclair, U.S. Army, did, at or
near Fort Bliss, Texas, on or about 23 February 2011, with intent to deceive, make to
Special Agent J.H., an official statement to wit: that he didn’t know how M’s pants
ended up on the floor, or words to that effect; that he only had contact with M’s
clothing, or words to that effect; that he didn’t physically touch M’s undergarments,
or words to that effect, which statements were totally false and were then known by
SPC Leclair to be so false.” We hold that the remaining findings of guilty and
sentence as approved by the convening authority are correct in law and fact.
Accordingly, those findings of guilty and the sentence are AFFIRMED.

Judge ALDYKIEWICZ and Judge MARTIN concur.


                                       FOR THE COURT:




                                       ANTHONY O. POTTI
                                        ANTHONY
                                       Acting    O. POTTINGER
                                              Clerk  of Court
                                         Chief Deputy Clerk of Court




7
  In our review of appellant’s affidavit and those of the defense counsel we note the
contradictions as to whether the defense told appellant that calling witnesses w as a
waste of time and unnecessary because of the punishment he would likely receive.
Applying the factors set out in United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997)
we find that a fact finding hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967) is not necessary under the facts in this case.
In particular we find that even if appellant’s assertion regarding the aforementioned
advice were true, he would not have been entitled to relief.

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