2007
United
States v. Phillips, 64 M.J. 410 (as part of the
sentence, a court-martial may adjudge a fine in lieu of or in addition
to forfeitures; RCM 1003(b)(3) provides that in 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).
(a fine does not become due
until ordered into execution by the convening authority; unless a
different date or payment schedule is set forth in the convening
authority’s action or otherwise agreed to by the convening authority,
payment of the fine is due on the date that the convening authority
takes action on the sentence).
(confinement may not be
executed for failure to pay a fine if the accused demonstrates that the
accused has made good faith efforts to pay but cannot because of
indigency, unless the authority considering imposition of confinement
determines, after giving the accused notice and opportunity to be
heard, that there is no other punishment adequate to meet the
government’s interest in appropriate punishment).
(a commanding officer
empowered to order contingent confinement is not acting in the capacity
of the convening authority who approved the results of the
court-martial under Article 60(c), UCMJ, but as the authority
considering imposition of confinement for nonpayment of the fine under
RCM 1113(d)(3); exercise of the authority to impose contingent
confinement by the officer serving as a person’s commanding officer
subsequent to action under Article 60(c), UCMJ, does not violate the
MCM).
(under RCM 1113(d)(3), an
accused who fails to pay an executed fine is entitled to the
opportunity to show indigence and demonstrate past good faith efforts
to pay before being ordered into confinement for failure to pay; if the
accused demonstrates indigence, the authority considering confinement
must determine, after notice to the accused and a hearing, that no
alternative punishment is adequate to meet the government’s interest in
punishment; if an accused cannot demonstrate indigence, the authority
considering confinement need not consider alternatives before executing
contingent confinement; the authority considering confinement may
choose to consider alternative punishments as a matter of discretion in
the case of a nonindigent accused, but is not required to do so).
(contingent confinement is an
enforcement mechanism that may be included in a sentence to a fine,
allowing the proper authority to order into confinement an accused who
fails to pay the fine; RCM 1113(d)(3) makes it clear that the predicate
to converting contingent to actual confinement is the failure by a
servicemember to pay a fine that is due; inasmuch as a fine is not due
until the sentence is executed, contingent confinement may be executed
only after: (1) the fine is executed, (2) the
accused has an opportunity to pay, and (3) fails to do so).
(a convening authority’s
action approving a sentence that includes contingent confinement for
the failure to pay a fine does not preclude a different officer from
converting the contingent confinement provision of the sentence into
actual confinement when appellant fails to pay the fine; in this case,
when appellant failed to pay the fine, his commanding officer properly
ordered a fine enforcement hearing, determined that appellant was not
indigent, and ordered him into contingent confinement for willful
failure to pay; although appellant characterizes his commanding officer
as a “substitute” convening authority, the commanding officer did not
execute contingent confinement in the capacity of a “substitute” for
the convening authority over appellant’s court-martial; rather, he
acted as “the authority considering imposition of confinement” under
RCM 1113(d)(3), and as such, there was no error in the execution of
contingent confinement).
(where an appellant who has
failed to pay a fine does not establish that he is indigent at his fine
enforcement hearing, the authority considering the imposition of
contingent confinement is not required by RCM 1113(d)(3) or any other
provision of the MCM to consider alternatives to confinement before
ordering appellant into contingent confinement; in this case, because
appellant failed to establish that he was indigent, his commanding
officer was not required to consider whether his proposed payment plan
or any alternative punishment would be adequate to meet the
government’s interests).
2004
United
States v. Palmer, 59 MJ 362 (pursuant to the authority
Congress has given him to establish punishments, Article 56, UCMJ, the
President has provided that a court-martial may adjudge a fine in lieu
of or in
addition to forfeitures; RCM 1003(b)(3) provides that in 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).
(before contingent confinement
can be
executed, the convening authority must afford the person fined notice
and an
opportunity to be heard; 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; if
the service member demonstrates that he cannot pay the fine because of
indigency, the contingent confinement may not be executed for failure
to pay a
fine unless the authority considering imposition of confinement
determines that
there is no other punishment adequate to meet the Government’s interest
in
appropriate punishment).
(in this case, appellant was
afforded
those due process rights to which he was entitled before the convening
authority remitted the unpaid balance of the fine and executed the
contingent
confinement proportional to the amount of the fine remaining unpaid
when the
convening authority acted; there is a substantial basis in the hearing
record
to conclude that, rather than making good faith efforts to timely pay
the fine,
appellant engaged in conduct designed to remove assets from his control
and did
not take reasonable steps to liquidate assets to make timely payment;
further,
appellant’s history of payment on the fine does not support his
contention that
he made payments in good faith).
(we find nothing in the record
to cause
us to question the finding that appellant was not indigent;
additionally, at
the time the fine was approved appellant did not approach the convening
authority and request a payment plan or schedule to accommodate his
financial
situation; under these circumstances, the convening authority was not
obligated
to withdraw or amend his action remitting the fine and executing the
contingent
confinement when appellant made an additional, untimely, partial
payment after
the action was taken; this belated payment did nothing to alter or
excuse the
fact that appellant did not comply with the payment terms established
by the
convening authority; the temporary administrative “acceptance” of this
belated
payment by the finance office did not vest appellant with any new
substantive
rights, resurrect the fine, or alter the convening authority’s action;
there
was simply no fine against which to apply the untimely payment).