UNITED STATES, Appellee
v.
John H. STEBBINS, Staff Sergeant
No. 03-0678
Crim. App. No. 20000497
Argued
Decided
GIERKE, C.J., delivered the opinion of the Court, in which CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: David P. Sheldon, Esquire (argued); Karen L. Hecker, Esquire, Major Allyson Lambert, and Captain Eilin J. Chiang (on brief).
For Appellee: Captain Abraham F. Carpio (argued); Lieutenant Colonel Margaret B. Baines, Lieutenant Colonel Mark L. Johnson, Lieutenant Colonel Steven T. Salata, Lieutenant Colonel Mark A. Visger, and Major Theresa A. Gallagher (on brief).
Military Judge: Keith H. Hodges
This opinion is subject to
revision
before final publication.
Chief Judge GIERKE delivered the opinion of the Court.
Consistent with his pleas, Staff Sergeant John Stebbins was found guilty of rape of a child under the age of twelve on divers occasions and sodomy of a child under the age of twelve, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (UCMJ).1 He was tried and convicted by a military judge sitting as a general court-martial and sentenced to a dishonorable discharge, confinement for thirty years, reduction in rank to E-1, a $75,000.00 fine, and confinement of an additional five years if he failed to pay the fine. The convening authority approved the sentence as adjudged, except that he did not approve the additional confinement contingent on failure to pay the fine. The United States Army Court of Criminal Appeals subsequently affirmed the findings and sentence.2
Congress
passed a
bill authorizing the punishment of confinement for life without
eligibility for
parole (LWOP) on
BECAUSE LIFE WITHOUT PAROLE WAS NOT AN AUTHORIZED PUNISHMENT UNDER THE CODE FOR THE CHARGED OFFENSES, THE PRETRIAL AGREEMENT IS A NULLITY AND IT, AND THE FINDINGS AND SENTENCE ON WHICH IT WAS BASED, SHOULD BE SET ASIDE BECAUSE APPELLANT ENTERED INTO THE AGREEMENT BASED ON A MATERIAL MISUNDERSTANDING OF THIS ISSUE.6
Next, Appellant claims that Rule for Courts-Martial (R.C.M.) 1003(b)(3) requires an accused to be “unjustly enriched” before a fine can be imposed as punishment and, thus, the $75,000.00 fine imposed by the military judge was improper because he was not “unjustly enriched” as a result of his offenses.7 Accordingly, we also granted review of the following issue:
WHETHER THE MILITARY JUDGE IMPROPERLY IMPOSED A SENTENCE THAT INCLUDED A $75,000 FINE WHERE APPELLANT WAS NOT UNJUSTLY ENRICHED BY HIS CRIMES.8
We now hold that LWOP was authorized for Appellant’s offense of rape, and that it was not error to impose the $75,000.00 fine. Accordingly, we affirm the decision of the Army Court of Criminal Appeals.
BACKGROUND
Appellant
enlisted in the Army on
Unfortunately,
the heroism Appellant displayed on the battlefield did not translate
into his home
life. Sometime around
Appellant’s
offenses were discovered on
DISCUSSION
I. LWOP is an Authorized Punishment for
Rape
After
At
trial, the military judge advised Appellant that LWOP was the maximum
punishment for his offenses. Appellant
entered a pretrial agreement based on this assumption.
As noted above, although Congress passed a
bill authorizing LWOP on
In
United States v. Ronghi,9 we
held that LWOP was an authorized punishment for premeditated murders
committed
after
Article
56a of the UCMJ, enacted on
In Ronghi,
we noted that under Article 118, UCMJ,14
Congress explicitly authorized “death or imprisonment for life
as a
court-martial may direct” as the maximum authorized punishment for
premeditated
murder.15 Article 120 does not include “imprisonment
for life” in the text of the statute.
But this distinction between the texts of Article 118 and
Article 120
does not change the fact that confinement for life is still a lesser
punishment
than death and clearly falls within Article 120’s authorization of
“such other
punishment as a court-martial may direct.”16 Therefore,
“absent some other statutory
provision limiting LWOP’s availability, it was an authorized sentence”
when
Appellant committed his offenses between
Congress is not the only decision maker in establishing limitations on the punishments available for those sentenced by courts-martial. The President may also prescribe limitations on the maximum punishment that a court-martial may direct.18 Thus, the next question we must answer is whether the President imposed any limitation on LWOP as a punishment applicable to the rape of a child in 1998 and 1999.
As
noted in Ronghi,19
the President
executed the authority delegated to him by Congress by establishing
maximum
punishments in Part IV of the MCM.
In setting the maximum punishment for rape, the President
mirrored the
language used by Congress, providing that the maximum punishment for
rape is
“[d]eath or such other punishment as a court-martial may direct.”20
Therefore, because LWOP is a lesser punishment than death, no
conflict
exists between the Manual’s maximum sentence provision, death,
and the
congressionally-authorized sentence of LWOP in a rape case.21
Additionally, the President explicitly recognized LWOP as an
authorized
sentence “only” for “offenses committed after
Appellant argues that Ronghi is distinguishable from this case because, while death was clearly an authorized punishment for premeditated murder in the 2000 edition of the MCM, the Supreme Court has held that the Constitution forbids the death penalty for the rape of an adult woman.24 Appellant relies on the Supreme Court’s holding in Coker v. Georgia, which held that a death sentence for the rape of an adult woman is “grossly disproportionate and excessive punishment” proscribed by the Eighth Amendment.25 Based on this holding, Appellant argues that confinement for life rather than death is the maximum authorized punishment for rape and that, because LWOP is not a lesser punishment than life, it cannot be considered as the maximum punishment in this case.
Appellant’s
argument is inapposite to the issue in this case. In
this case, we need not decide the scope
and extent of the plurality opinion in Coker. The
issue in this case is not whether
Appellant can be executed for the offense of rape.
Rather, the issue is whether Congress
authorized LWOP for
Appellant’s offense of rape and whether the President has subsequently
imposed
any limitations on the imposition of LWOP as punishment for the rape of
minor.
Additionally, we have
explicitly held that “rape is an offense punishable by death for
purposes of
exempting it from the 5-year statute of limitations in Article 43(b)(1).”26 In
doing so, we stated that “the question of
whether the death penalty may be imposed, given the facts and
circumstances of
any particular case, does not control the statute of limitations issue.”27
Similarly, we need not answer the question of whether Appellant
may
actually be sentenced to death for raping his daughter when she was six
and
seven. Rather, the question in this case
focuses on whether the President established a maximum sentence less
than LWOP
for rapes that occurred in 1998 and 1999.
We conclude that, because the President authorized death for
Appellant’s
offenses, the 1998 MCM did not preclude a sentence of LWOP for
rape.
We now hold that LWOP is
an authorized punishment for Appellant’s offense of rape of his
daughter, which
occurred after
II.
Fines May Be Imposed in the Absence of Unjust
Enrichment
As
part of Appellant’s sentence, the military judge imposed a $75,000 fine
against
Appellant and sentenced him to contingent confinement if he failed to
pay the
fine. The military judge also
recommended to the convening authority that the fine be disapproved
“under the
conditions that a trust fund in the amount of $25,000 be established
for the
sole purpose of providing medical treatment to the spouse and to the
child.” On
A.
Unjust Enrichment
Appellant argues that the military judge erred when he imposed a fine as part of Appellant’s punishment because Appellant was not unjustly enriched as a result of his offenses. R.C.M. 1003(b)(3) provides that any court-martial may adjudge a fine instead of forfeitures. The discussion accompanying R.C.M. 1003(b)(3) states that “[a] fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched as a result of the offense of which convicted.”28 We conclude that the use of “normally” in the rule’s nonbinding discussion indicates that “unjust enrichment” is not always a prerequisite to imposing a fine as part of an accused’s sentence. Therefore, we conclude that the military judge did not err in this case by imposing a fine on Appellant in the absence of unjust enrichment.
R.C.M. 1003 lists the punishments authorized for any case in which an accused is convicted, “[s]ubject to the limitations in this Manual.”29 As noted above, R.C.M. 1003(b)(3) explicitly provides that “[a]ny court-martial may adjudge a fine in lieu of or in addition to forfeitures.”30 A plain reading of this language indicates that fines are available to be imposed on any accused who is convicted and that there is no requirement of “unjust enrichment” for a fine to be imposed in Appellant’s case.
The “unjust enrichment” language first appeared in the 1949 Army and Air Force editions of the Manual for Courts-Martial. These editions of the Manual, which were essentially identical, stated that a “fine should not ordinarily be adjudged against an officer, warrant officer, or enlisted person unless the accused was unjustly enriched by means of an offense of which he is convicted.”31 Although the 1949 editions of the Manual did not explicitly explain why this language was first included in the Manual, a look at other pre-UCMJ editions of the Manual for Courts-Martial suggests the reasons.
Historically,
fines were considered “especially appropriate to those offences which
consist
in a misappropriation or misapplication of public funds or property,
being in
general adjudged with a view mainly to the reimbursement of the
Not only were fines historically limited to specific offenses, but forfeiting the pay of a servicemember was viewed as preferable to imposing a fine because of the relative administrative ease in executing forfeitures. More specifically, the drafters of the MCM recognized that the least difficult way to obtain money from a servicemember as punishment would be by subtracting money from that servicemember’s pay. “Where indeed the pecuniary liability of the offender is comparatively slight, forfeiture of pay, as being more readily executed, is a penalty preferable to fine.”37
The drafters’ belief that forfeitures could be executed against servicemembers more easily than fines is further evidenced in the differences between the possible punishments that could be imposed on officers and enlisted members. For example, the 1921 Manual provides that only officers could be fined.38 Sentences for enlisted soldiers, on the other hand, could include forfeiture or detention -– which is a form of withholding a certain amount of the accused’s pay that is ultimately returned upon separation from the service.39 The 1928 Manual states that “[d]etention of pay would not be imposed . . . except on enlisted men of the Army.”40 Although detention of pay was still an authorized punishment in the 1949 editions of the Manual, fines became an authorized punishment for enlisted personnel, as well as officers, so long as a dishonorable discharge was also adjudged in the case.41
In general, it appears that the drafters of the 1949 editions of the Manual incorporated forfeitures and fines as punishments based on two main historical premises: (1) that forfeitures were preferred because they were administratively easier to secure from those servicemembers who were convicted, and (2) that the Articles of War expressly authorized fines in cases involving fraud against the government or abandoned or captured property -– both offenses which, in essence, involve property or money stolen from the government. The fine thus provided the means of making the government whole.
A preference
for forfeitures, however, in no way precludes the imposition of fines
for
certain offenses even in the absence of unjust enrichment.
While the history indicating a preference for
forfeitures over fines explains why the “unjust enrichment” language
first
appeared in the Manual, it also illustrates that the drafters
did not
address the direct question of whether fines are permissible for
offenses other
than those that involved direct material loss to the Government.
As stated in the Army’s analysis of the 1951 Manual:
Although
the Manual provides that a fine should not “ordinarily”
be adjudged against a member of the armed forces unless [an] accused
was unjustly
enriched by means of the offense, this is not an absolute rule. The Manual contemplates that fines may be
adjudged where no unjust enrichment is present, because par[agraph]
126h(3) permits any [court-martial] to adjudge a fine instead of
an authorized
forfeiture where the Art[icle] involved authorizes punishment as a
[court-martial] may direct.42
We read
the historical absence of explicit limitations on the
imposition of fines for those offenses that did not involve direct loss
to the
Accordingly, in United States v. Hounshell, we held that “[c]ourts-martial have the power to adjudge fines instead of forfeitures in all cases in which the article of the Uniform Code violated by the accused authorizes punishment as a court-martial may direct.”43 And, in United States v. Cuen, we noted that the language regarding “unjust enrichment” is precatory text and, therefore, “it is clear” that a fine could be imposed in lieu of forfeitures on an accused convicted of absence without leave and assault and battery.44
The conclusion that fines can be imposed even in the absence of unjust enrichment is supported by a historical analysis and this Court’s precedent, along with intermediate military appellate case law.45 We now hold that, based on the plain language of the rule as well as the history of a fine as punishment, it is not unlawful to impose a fine where there is no unjust enrichment.46 Our inquiry does not end here, however, because we must now decide whether the $75,000 fine imposed on Appellant violated the Excessive Fines Clause of the Eighth Amendment.
B.
The Eighth Amendment
The
Eighth Amendment provides that “[e]xcessive bail shall not be required
nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”47 In United
States v. Bajakajian,48 the Supreme
Court set out a two-pronged analysis for determining whether the
Excessive
Fines Clause is violated. First, a court
must determine if the fine falls within the Excessive Fines Clause and,
if so,
whether the fine is excessive.49
In this case, Appellant claims that, although his crimes were serious, the $75,000 fine is not proportional to the offenses, especially considering the other punishments imposed on Appellant. We must first determine whether the $75,000 fine is a fine within the meaning of the Excessive Fines Clause.50 This first prong of the Excessive Fines Clause analysis is clearly met in this case. As the Supreme Court explained, “at the time the Constitution was adopted, ‘the word “fine” was understood to mean a payment to a sovereign as punishment for some offense.’”51 The $75,000 fine was directly imposed on Appellant as part of his sentence and was to be paid to the government as punishment for committing the offense.
The next question is whether the $75,000 fine was excessive. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.”52 Therefore, if a fine is “grossly disproportionate to the gravity of a defendant’s offense,” it violates the Excessive Fines Clause.53 This proportionality analysis under the Excessive Fines Clause is conducted on a case-by-case basis and is distinguishable from the determination of sentence appropriateness required by Article 66.54
Although counseling against a strict proportionality between the amount of punitive forfeiture and the gravity of a criminal offense, because such judgment is better left to the legislature, the Supreme Court articulated various factors to be analyzed in determining whether a fine was grossly disproportionate.55 First, a court should look to the nature of the offense and then question whether it is related to any other illegal activities by the accused.56 Second, the court should assess whether the accused “fit[s] into the class of persons for whom the statute was principally designed.”57 Third, if the maximum sentence under the Federal Sentencing Guidelines is relatively low, then this confirms a “minimal level of culpability.”58 Finally, a court should determine the level of harm caused by the accused’s offense by asking both who is affected by the offense and the magnitude of harm to those affected.59 In Bajakajian, for example, the Supreme Court stated that only the Government was harmed by the failure of an international traveler to report that he was traveling with $357,144, in violation of a statute that required him to report more than $10,000.60 The Court also concluded that the harm to the Government was minimal.61 Comparing the gravity of the harm caused by defendant’s failure to accurately report the amount of money he was carrying with the fine the Government sought to impose, which was the entire $357,144, the Supreme Court concluded the forfeiture would be “grossly disproportionate to the gravity of his offense.”62
Applying the factors from Bajakajian, we now conclude that the $75,000 fine imposed on Appellant was not “grossly disproportionate to the gravity of his offense.”63 First, the nature of Appellant’s offense was severe -- the repeated rape and forcible sodomy of his six-year-old daughter. There is no way to measure the psychological and mental effect this abuse will have on MS for the rest of her life. At trial, MS’s mother testified that, after the abuse, MS had no self-esteem, was always “very weepy,” started to wet her bed at night and her pants at school, began to have frequent nightmares, and expressed a desire to kill herself. MS then began attending counseling. A medical exam conducted on MS revealed that MS’s body was so physically traumatized that she suffered from significant physical defects. The nature of Appellant’s crime was extremely severe and far from the relatively harmless nature of the failure to report the value of the currency the defendant was carrying in Bajakajian.
Second,
there is no doubt Appellant falls into “the class of persons for whom
[Articles
120 and 125 were] principally designed” -– those individuals who commit
rape
and forcible sodomy.64 Third, the congressionally-prescribed maximum
punishment authorized for rape under Article 120 is the most severe
sentence
known to the law: death.65 This penalty in no way “confirm[s] a minimum
level of culpability,”66
and instead
indicates that Congress and the President intended to punish these
offenses
severely. Appellant was sentenced to
thirty
years of confinement, the $75,000 fine, a dishonorable discharge, and
reduction
to E-1. Appellant’s sentence was
significantly less than the maximum authorized for his offenses. Finally, as discussed above, the harm caused
to MS by Appellant’s offenses is extremely severe.
The Sentencing Guidelines for the federal
civilian system are instructive to our proportionality review in this
case.67
Under the United States Sentencing Guidelines, had Appellant
been tried
in the civilian system, his offense of criminal sexual abuse with a
minor under
the age of twelve at the time of the offense would have authorized a
fine
anywhere between $17,500 and $175,000.68 Comparing
the gravity of the repeated rape
and forcible sodomy of Appellant’s
six-year-old daughter
with the $75,000 fine, we conclude that the fine is in no way “grossly
disproportionate to the gravity of his offense.”69
Therefore, based on the facts of this case, Appellant’s sentence
did not
violate the Excessive Fines Clause.
C. Due Process Concerns
In this case, we need not answer any Due Process concerns that may arise in other cases when fines are imposed on an accused as part of his sentence and contingent confinement is imposed for failure to pay.70 In United States v. Tuggle,71 we held, based on R.C.M. 113(d)(3), that the Due Process Clause is violated when confinement is imposed as a sanction for failure to pay a fine where the probationer has made good-faith efforts to pay but cannot because of indigency and the court below denied the accused the opportunity to make a good-faith effort to pay. In this case, the convening authority did not approve the portion of the military judge’s sentence that provided for five years of contingent confinement for the failure to pay his fine. Moreover, Appellant has neither attempted to pay this fine nor asserted that he is unable to do so. Therefore, we need not reach any questions regarding due process concerns in this case.72
DECISION
The decision of the United States Army Court of Criminal Appeals is affirmed.
1 10 U.S.C. §§
920, 925 (2000).
2 United States v. Stebbins,
No. ARMY
20000497 (A. Ct. Crim. App. Aug. 20, 2003) (unpublished).
3 National
Defense Authorization Act for Fiscal Year 1998, Pub. L. No.
105-85, § 581(b), 111
Stat. 1759 (1997).
4 143 Cong.
Rec. H10961 (
5 Exec. Order No.
13,262, 67 Fed. Reg. 18,773, 18,779 (
6 United
States v. Stebbins, 59 M.J. 463, 463 (C.A.A.F. 2004)(order
granting review).
7 See
R.C.M. 1003(b)(3) discussion.
9 60 M.J. 83,
86 (C.A.A.F. 2004).
10 Pub. L. No.
105-85, §
581(b), 111 Stat. at 1759; see also Ronghi, 60 M.J. at
84.
11 10 U.S.C. § 856a(a)
(2000).
15 See
60 M.J. at 84 (emphasis
added).
16 Article
120(a), UCMJ, 10 U.S.C. §
920(a) (2000); see also Article 118, UCMJ, 10 U.S.C. § 918 (2000).
18 See Article
56, UCMJ; see also Article 18, UCMJ, 10 U.S.C. §
818 (2000) (establishing jurisdiction of general
courts-martial to adjudge punishment “under such limitations as the
President
may prescribe”).
20 MCM
(2002 ed.), pt. IV, ¶
45.e.(1).
22 Exec. Order 13,262 § 6.b, 67 Fed.
Reg. 18,773, 18,779 (
23 Ronghi, 60 M.J. at
85 (emphasis omitted).
24 See Coker
v. Georgia, 433
26 Willenbring v.
Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998).
27
28 R.C.M.
1003(b)(3) discussion (emphasis added).
31 MCM
(1949 ed.), ¶ 117c, § B
(emphasis added).
32 William
Winthrop, Military Law and Precedents 419 (2d ed. 1920)[hereinafter
33
34
35
36 See,
e.g., War Department Technical Manual 27-255, Military Justice
Procedure ¶ 125b (1945) (asserting that
“[f]ines should not be imposed on military personnel . . . ,
except
perhaps in the case of aggravated embezzlements or other frauds by a
disbursing
officer, for instance, where a large sum is necessary to make good the
defalcation”); Seminars on the 1949 Manual for Courts-Martial
96
(Dec. 1948), microformed on OCLC
No. 31272962 88-026,
at F2/2 (Law
Library Microform Consortium) (noting that although “a fine may be
adjudged
against any enlisted person, in lieu of forfeitures, for any offense
listed in
the Table of Maximum Punishments, . . . [t]hose provisions [regarding
unjust
enrichment] were inserted as authority for the imposition of a fine in
lieu of
forfeitures in the case, for example, of embezzlement by a finance
officer or
in the case of black marketeering”); Colonel Charles L. Decker, Legal
and
Legislative Basis, Manual for Courts-Martial United States
182
(1951), available at http://www.loc.gov/rr/frd/Military_Law/CM-manual_1951.html
(stating that those against whom a fine should be adjudged as “unjustly
enriched”
for their offenses include “of course, . . . the finance officer who
absconds
with government funds, and the black marketeer”).
37
38
40
41
42 Cumulative
Pocket Part to the Manual for Courts-Martial,
43 7 C.M.A. 3, 5, 21 C.M.R.
129, 131 (1956).
44 9 C.M.A.
332, 337 n.5, 26 C.M.R. 112, 117 n.5 (1958).
45 See United
States v. Parini, 12 M.J. 679, 684-85 (A.C.M.R. 1981) (noting that
there
“is no legal requirement that such [unjust] enrichment accrue before a
fine can
be legitimately imposed” and upholding a $15,000 fine for convictions
of
indecent assault and conduct unbecoming an officer); United States
v. Galvan,
9 C.M.R. 156 (A.B.R. 1953) (upholding a $1,000 fine for drunken driving
and
leaving the scene of an accident); United States v. Ashley, 48
C.M.R.
102, 105 (A.F.C.M.R. 1973) (approving a fine of $10,000 for willful
disobedience of orders); United States v. Kehrli, 44 C.M.R.
582, 584-85
(A.F.C.M.R. 1971)(affirming a fine of $15,000 for drug-related
offenses); United
States v. Finlay, 6 M.J. 727, 729 (A.C.M.R. 1978) (reducing a fine
of
$30,000 to $2,000 for a conviction for unauthorized absences); United
States
v. Czeck, 28 M.J. 563, 564-65 (N.M.C.M.R. 1989) (affirming a fine
of $2,682
for wrongful use of a controlled substance, failure to obey a
regulation and
conspiracy).
46 Holding
that a fine may be a legal punishment in certain situations in no way
implies
that it is an appropriate punishment in all cases.
Therefore, our holding does not disturb the
holdings of the Courts of Criminal Appeals that conclude a fine is
inappropriate in some situations. See,
e.g., United States v. Price, No. ACM 33389, 1999 WL
385748, at *2
(A.F. Ct. Crim. App. May 27, 1999) (unpublished) (noting that fines can
be
given where there is no unjust enrichment, but reducing an
“inappropriate”
$5,000 to the amount that the appellant was unjustly enriched, $600); United
States v. Word, No. NMCMR 880316, 1988 CMR LEXIS 415, at *1
(N.M.C.M.R.
June 21, 1988) (unpublished) (setting aside a fine as “an
inappropriate, albeit
legal, punishment” where there was no indication the accused was
unjustly
enriched under the circumstances); United States v. Espineira,
No. NMCMR 881410, 1988 CMR LEXIS 680, at *1
(N.M.C.M.R. Sept. 7, 1988)
(unpublished) (disapproving the fine where there was no evidence of
unjust
enrichment or “any other good reason for the fine”).
50 In United
States v. Reed, 54 M.J. 37, 44-45 (C.A.A.F. 2000), we applied the
Supreme
Court’s analysis and determined that the impending loss of retirement
benefits
is a collateral consequence rather than a fine for purposes of the
Excessive
Fines Clause. Therefore, we did not need
to reach the second prong of the Supreme Court’s analysis and held that
the
Excessive Fines Clause was not violated.
51 Bajakajian,
524 U.S. at 327-28 (quoting Browning-Ferris Indus. of Vt., Inc. v.
Kelco
Disposal, Inc., 492 U.S. 257, 265 (1989)).
54 See
Article 66, UCMJ; 10 U.S.C. §
866 (2000).
64 Bajakajian,
524
66 Bajakajian,
524
67 See
68 See id.
§ 2A3.1(b)(2)(A),
§ 5E1.2. The potential
fine against Appellant, had he been tried in a civilian court, may have
been
increased even further to $200,000 because his daughter was “in the
custody,
care, or supervisory control of [Appellant].”
70 Nor need we
consider whether a military judge or convening authority may
appropriately
condition the imposition of a fine on satisfaction of a condition not
expressly
provided for under the UCMJ. In this
case, the military judge recommended to the convening authority that he
disapprove the fine on the condition that Appellant establish
a trust fund for his victim. However,
the convening authority did not adopt that recommendation.
71 34 M.J. 89, 92-93 (C.M.A.
1992).
72 This case
illustrates that due process concerns may arise when military judges
impose
fines because of the absence of any guidance in the UCMJ on the
appropriate
range of minimum and maximum fines for certain offenses.
We invite the Joint Services Committee to
consider whether the Manual should include standards for the
imposition
of fines.