United States v. Leblanc
2015 CCA LEXIS 117
A.F.C.C.A.2015Background
- Appellant convicted by military judge of multiple offenses under UCMJ Articles 86, 92, 94, and 134 after mixed pleas; sentence: dishonorable discharge, 30 months confinement, and reduction to E-1.
- Charges arose from prohibited sexual relationship with a BMT trainee, plus further misconduct including lying, no-contact violations, and attempting to develop relationships with other trainees.
- Appellant pled guilty to some AETCI 36-2909 provisions; argued those provisions were not punitive under Article 92(1) because not properly drafted as punitive regulations.
- AFI 33-360 governs punitive instruction drafting; AFI requires clear punitive language and notice that violations may be punished under Article 92.
- Government conceded AETCI 36-2909 did not meet all AFI 33-360 requirements; court nonetheless weighed Accardi-like considerations to determine enforceability.
- Court held appellant lacked standing to challenge the punitive nature of AETCI 36-2909 under AFI 33-360, and affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of AETCI 36-2909 under Article 92(1) | Appellant argues not punitive due to AFI 33-360 noncompliance. | Government contends regulation punitive despite AFI 33-360 gaps; ACCARDI considerations apply. | Not enforceable as punitive; no Article 92(1) liability for these provisions. |
| Application of Accardi doctrine to AFI 33-360 | Accardi requires enforcement only if regulation protects personal liberties. | Accardi applies to determine standing to challenge; government argues no personal liberty at stake here. | Accardi-like analysis favors appellant; but court finds no standing to challenge. |
| Sentence severity and equity with co-actor Estacio | Disparity with Estacio’s harsher or lighter sentence deserves scrutiny. | Disparity justified by broader, independent misconduct; not closely related cases for comparison. | Sentence affirmed as appropriate given individualized circumstances. |
| Judicial notice of SJAR errors and delay | SJAR misstates adjudged grade and maximum; excessive post-trial delay. | Minor prejudice; delay not sufficient to overturn; supplemental issues underway. | No material prejudice or plain error requiring relief; delay not violative of due process. |
Key Cases Cited
- United States v. Shavrnoch, 49 M.J. 334 (C.A.A.F. 1998) (improvident plea when regulation not punitive; Accardi-like considerations)
- United States v. McGraner, 13 M.J. 408 (C.M.A. 1982) (four-factor test for regulatory notice and personal-liberty protection)
- United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006) (notice sufficient for punitive AETCI provision; Article 92(1) conviction sustainment)
- United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995) (government bound by its own regulations when right or interest protected)
- United States v. Caceres, 440 U.S. 741 (U.S. 1979) (due process considerations in administrative regulations)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (dereliction of duty as potentially not a lesser-included offense after Jones)