IN THE
CASE OF
UNITED
STATES, Appellee
v.
Alphonso C.
PALMER, Staff Sergeant
No.
03-0173
Crim. App.
No.
34379
Argued
Decided
ERDMANN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant:
Captain
Sandra K. Whittington (argued); Colonel Beverly B. Knott, Major
Terry L. McElyea and Captain James
M. Winner
(on brief); Major Maria A. Fried.
For Appellee: Captain Kevin P. Stiens
(argued); Colonel LeEllen Coacher
and Lieutenant
Colonel Robert V. Combs (on brief); Lieutenant Colonel Lance B.
Sigmon.
Military Judge:
Robert G.
Gibson
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the
Court:
Appellant,
Staff Sergeant Alphonso C. Palmer,
separately conspired with two employees
of the Naval Exchange to illegally obtain automotive parts and tires
from the
Naval Exchange, which Palmer would then use or sell in his private
business
enterprises. The items Palmer unlawfully
obtained exceeded $100,000.00 in value.
He was found guilty of two specifications each of conspiracy and
larceny, violations of Articles 81 and 121, Uniform Code of Military
Justice
[UCMJ], 10 U.S.C. §§ 881 and 921 (2000), respectively.
He
was sentenced to a bad-conduct discharge, confinement for 30 months,
total
forfeitures, reduction to the lowest enlisted grade, and a fine in the
amount
of $30,000.00. The sentence also
provided that if the fine was not paid, Palmer would be subject to an
additional 12 months of confinement.
This fine and the provision for contingent confinement gave rise
to the
two issues we granted for review:
I.
WHETHER
THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT DEEMED APPELLANT'S FAILURE TO PAY HIS ADJUDGED
II.
WHETHER
THE INITIAL GOVERNMENT ACCEPTANCE OF APPELLANT'S $3,000.00 PARTIAL FINE
PAYMENT
ON MARCH 9, 2001, WHICH OCCURRED AFTER THE CONVENING AUTHORITY'S
REMISSION OF
THE UNPAID BALANCE OF THE ADJUDGED FINE AND APPROVAL OF AN ADDITIONAL
95 DAYS
OF CONFINEMENT, EITHER (1) NEGATED THE CONVENING AUTHORITY'S ACTION
REMITTING
THE UNPAID BALANCE OF THE ADJUDGED FINE AND APPROVING ADDITIONAL
CONFINEMENT,
OR (2) SHOULD HAVE REDUCED THE ADDITIONAL CONFINEMENT TO 58 DAYS.
We
affirm the decision of the Air Force Court of Criminal Appeals. The Court of Criminal Appeals did not err in
its treatment of Palmer’s failure to pay his debt, his
FACTS
On
On
Because
the fine had not been paid in full
by the extended February 9 due date, the convening authority ordered a
hearing
pursuant to Rule for Courts-Martial 1113(d)(3)
[R.C.M.] to determine whether the conditional confinement should be
executed. A hearing officer conducted
the hearing on February 14 and found: (1) at the time of the contingent
confinement hearing, Palmer was “delinquent in [the] payment of his
fine[] in
the amount of $7,825.00”; (2) Palmer “failed to show by a preponderance
of the
evidence that his failure to pay [was] due to indigence or that he made
a good
faith effort to pay”; and (3) there was evidence that Palmer had “an
intent to
hide assets and deprive the Government of monies owed.”1 Despite these
findings, the hearing officer
recommended that Palmer be given until 8:00 a.m. on March 1 to pay the
balance
of the fine, and that if the balance was not paid by that time then he
should
serve an additional 95 days of confinement.2
In
a February 28 memorandum, the convening
authority informed Palmer that he had
adopted the
hearing officer’s recommendations. The
memorandum specifically stated that Palmer had until
On
March 8, after no further payments on the fine had been received, the
convening
authority remitted the unpaid $7,825.00 balance of the fine and
executed an
additional 95 days of confinement in lieu of the fine.3 Perhaps
unaware of either the February 28
memorandum or the March 8 action, Palmer made a partial payment on
March 9 in
the amount of $3,000.00 to the Hickham AFB
Finance
and Accounting Office.
On
March 22 the convening authority
rejected the $3,000.00 payment. In a
memorandum to Palmer, the convening authority informed Palmer that the
remission of the unpaid balance of the fine and the execution of the
additional
days of confinement had not changed and that the $3,000.00 payment from
March 9
would be returned. Subsequently, Palmer
received a $2,342.34 payment from the Government, which represented the
rejected $3,000.00 payment less an amount for other debts Palmer owed
the
DISCUSSION
Pursuant
to the authority Congress has
given him to establish punishments, Article 56, UCMJ, 10 U.S.C. § 856
(2000),
the President has provided that a court-martial “may adjudge a fine in
lieu of
or in addition to forfeitures.” R.C.M.
1003(b)(3). The
rule further provides that “[i]n order to
enforce
collection, a fine may be accompanied by a provision in the sentence
that, in
the event the fine is not paid, the person fined shall, in addition to
any
period of confinement adjudged, be further confined until a fixed
period
considered an equivalent punishment to the fine has expired.”4
Before contingent
confinement can be executed, the convening authority must afford the
person
fined notice and anopportunity
to be heard.5 R.C.M. 1113(d)(3). At this
contingent confinement hearing, a
convicted service member subject to a fine has the burden of
demonstrating that,
despite good faith efforts, he has been unable to pay the fine “because
of indigency.”
There
is no dispute that Palmer was
afforded those due process rights to which he was entitled. Nonetheless, citing Tuggle,
34 M.J. at 92-93, Palmer argues that even though he was technically not indigent he was
entitled to consideration of something short of contingent confinement
because
he made good faith efforts to pay the fine and those efforts required
the
convening authority to consider what payment plan or resolution would
best
satisfy the ends of justice. Tuggle, 34 M.J. at 92. Palmer further asserts that when the
Government accepted the $3,000.00 on March 9 there was a constructive
waiver of
the March 1 deadline and a constructive retraction of the convening
authority’s
March 8 order. We disagree.
In
regard to Palmer’s argument that he
acted in good faith, the hearing officer found that Palmer had “failed
to show
by a preponderance of the evidence that . . . he made a good faith
effort to
pay.” We are not persuaded that the
hearing officer’s finding was clearly erroneous. There
is a substantial basis in the hearing
record to conclude that, rather than making good faith efforts to
timely pay
the fine, Palmer engaged in conduct designed to remove assets from his
control
and did not take reasonable steps to liquidate assets to make timely
payment.
Further,
Palmer’s history of payment on the fine does not support his contention
that he
made payments in good faith. He made no
payments until the last day of his first extension, at which time he
paid only
one-sixth ($5,000.00) of the amount due.
Palmer’s second payment, which was after the extended due date
of
February 9, was again only a partial payment and left a substantial
portion of
the fine unpaid. Even the final
$3,000.00 was less than the amount due and tendered at a time when, as
far as
Palmer knew, he was already a month beyond the extended due date. The R.C.M. 1113(d)(3)
hearing record and payment history do not support Palmer’s contention
that he
was acting in a good faith effort to fulfill his obligation to pay the
fine.
Palmer’s
reliance on Tuggle
is misplaced. After a hearing officer
had determined Tuggle was not indigent and
had not
made good faith efforts to pay the fine, Tuggle
approached the convening authority requesting a monthly payment plan in
lieu of
serving the contingent period of confinement.
The convening authority, however, executed the contingent
confinement.
This
Court held that the convening authority erred as a matter of law when
he did
not “consider whether the installment payment plan would satisfy the
ends of
justice in [that] case.”
In
this case we find nothing in the record
to cause us to question the finding that Palmer was not indigent. This conclusion is bolstered by the fact that
at no point during this appeal did Palmer claim that he was in fact
indigent
and his appellate defense counsel’s concession during argument that he
was
“technically” not indigent.
Additionally, at the time the fine was approved Palmer did not
approach
the convening authority and request a payment plan or schedule to
accommodate
his financial situation. Instead, Palmer
requested a reduction in the fine in his post-trial submissions and
later an extension
of the due date. Even though he received
several extensions, he made only one timely payment and each of his
payments
was in an amount substantially less than the full amount due.
Under
these circumstances, the convening authority was not obligated to
withdraw or
amend his action of March 8 when Palmer made his final untimely payment
of
$3,000.00. This belated payment did
nothing to alter or excuse the fact that Palmer did not comply with the
payment
terms established by the convening authority and the “acceptance” of
this
payment did not vest Palmer with any new substantive rights. After the convening authority remitted the
unpaid balance of the fine and executed the contingent confinement on
March 8,
Palmer’s fine-related debt to the
In
his memorandum of March 22 the convening authority set forth the
background
facts relating to Palmer’s fine, his payment history, and the
contingent
confinement hearing. Following this
summary, the convening authority stated, “My action [remitting the fine
and
executing the confinement] stands[.]”7 In our view
this reflects that the convening
authority gave due consideration to whether the ends of justice would
be served
by revoking his action of March 8 and substituting some other
appropriate
action. Given the facts of this case we
do not believe that the convening authority abused his discretion by
adhering
to his original decision and returning the proffered $3,000.00, less
deductions
for debts to the
Absent
indigence, Palmer’s untimely, unilateral efforts to make partial
payment on his
fine did not create any obligation on the part of the convening
authority to
accept that payment or amend his prior action remitting the fine and
executing
the contingent confinement. A contrary
ruling would permit Palmer to repeatedly interrupt the effective
administration
of justice without fulfilling the obligations imposed upon him pursuant
to a
lawful sentence and process.
DECISION
The
decision of the United States Air Force
Court of Criminal Appeals is affirmed.
1 Palmer
owned two
vehicles with a cumulative loan value of $14,175; he transferred
ownership of
two other vehicles to relatives in Samoa for personal reasons; he was
part
owner of a business called “Momo’s Tires”
that had
business inventory available for liquidation; and Palmer’s wife sold
their car
stereo business in July 2000 on contract for $150,000.00.
2 In a statement
dated
3 The members
adjudged contingent confinement for 12 months in the event the fine was
not
paid. The 95 days of confinement
recommended by the contingent confinement hearing officer and executed
by the
convening authority was proportional to the amount of the fine
remaining unpaid
when the convening authority acted.
4 The
unpaid portion of Palmer’s fine was remitted pursuant to Department of
the Air
Force Instruction 51-201, Administration of Military Justice, §§ 9.9.2,
9.9.5.11 (Nov. 26, 2003) [AFI 51-201], both of which indicate that the
additional confinement is a “substitute” for the fine.
This opinion does not address whether the
convening authority may execute contingent confinement without
remitting any
unpaid portion of an approved fine or providing for remission of the
unpaid
portion of a fine upon service of a contingent period of confinement.
5 In
this
case, the Commander, 15th Air Base Wing, Hickham
Air
Force Base, took all the actions relevant to the granted issue. Although his authority to take these actions
has not been challenged in the course of this appeal, we note that
those
actions were taken in three capacities.
Initially, this commander took action on the record of trial in
his
capacity as the general court-martial convening authority over the
court-martial. See
Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M. 1107. Thereafter, in taking actions relating to
nonpayment of the fine, specifically ordering the contingent
confinement
hearing and executing the contingent confinement, the commander acted
as the
“authority considering imposition of confinement” under R.C.M.
1113(d)(3)
pursuant to AFI 51-201, § 9.9.5.2 as the commander exercising general
court-martial authority over Palmer.
Finally, in remitting the unpaid balance of Palmer’s fine, the
commander
was exercising the Article 74, UCMJ, 10 U.S.C. § 874 (2000), authority
of the
Secretary of the Air Force, as delegated under AFI 51-201, § 11.17.
6 As we hold that the convening
authority did not abuse his
discretion by refusing the March 9 $3,000.00 payment, we need not
address
Palmer’s argument that the contingent confinement should have been
reduced to
58 days to reflect the receipt of the $3,000.00.
7 We
note
that the Manual for Courts-Martial,