IN THE CASE OF
UNITED STATES, Appellee
Alphonso C. PALMER, Staff Sergeant
Crim. App. No. 34379
ERDMANN, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
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:
THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT DEEMED APPELLANT'S FAILURE TO PAY HIS ADJUDGED
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.
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
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 , March 1 to pay the remaining $7,825.00 and if it was not paid, the convening authority would execute additional confinement proportional to the amount of the fine remaining unpaid.
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.
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
days of confinement had not changed and that the $3,000.00 payment from
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
to the authority Congress has
given him to establish punishments, Article 56, UCMJ, 10 U.S.C. § 856
the President has provided that a court-martial “may adjudge a fine in
or in addition to forfeitures.” R.C.M.
rule further provides that “[i]n order to
collection, a fine may be accompanied by a provision in the sentence
the event the fine is not paid, the person fined shall, in addition to
period of confinement adjudged, be further confined until a fixed
considered an equivalent punishment to the fine has expired.”4
confinement can be executed, the convening authority must afford the
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
despite good faith efforts, he has been unable to pay the fine “because
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.
Court held that the convening authority erred as a matter of law when
not “consider whether the installment payment plan would satisfy the
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.
these circumstances, the convening authority was not obligated to
amend his action of March 8 when Palmer made his final untimely payment
$3,000.00. This belated payment did
nothing to alter or excuse the fact that Palmer did not comply with the
terms established by the convening authority and the “acceptance” of
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
Palmer’s fine-related debt to the
his memorandum of March 22 the convening authority set forth the
facts relating to Palmer’s fine, his payment history, and the
confinement hearing. Following this
summary, the convening authority stated, “My action [remitting the fine
executing the confinement] stands[.]”7 In our view
this reflects that the convening
authority gave due consideration to whether the ends of justice would
by revoking his action of March 8 and substituting some other
action. Given the facts of this case we
do not believe that the convening authority abused his discretion by
to his original decision and returning the proffered $3,000.00, less
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.
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.
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, 22.214.171.124 (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, § 126.96.36.199 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.
that the Manual for Courts-Martial,