United States v. Phillips , 64 M.J. 410 ( 2007 )

UNITED STATES, Appellee
v.
Darryl S. PHILLIPS, Major
U.S. Marine Corps, Appellant
No. 06-0600
Crim. App. No. 200400865
United States Court of Appeals for the Armed Forces
Argued January 10, 2007
Decided March 26, 2007
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued).
For Appellee: Lieutenant Craig A. Poulson, JAGC, USN (argued);
Commander P. C. LeBlanc, JAGC, USN (on brief); Commander C. N.
Purnell, JAGC, USN.
Military Judge: S. M. Immel
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Phillips, No. 06-0600/MC
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of conspiracy to
steal government property, willful dereliction of duty,
destruction of nonmilitary government property, larceny of
government property, wrongful appropriation of government
property, conduct unbecoming an officer, obstructing justice
(four specifications), obtaining services by false pretense
(three specifications), obtaining personal services at
government expense, and fraternization, in violation of Articles
81, 92, 109, 121, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 892, 909, 921, 934 (2000). The
offenses primarily involved the creation of shell companies and
fraudulent charges of more than $400,000 on government credit
cards.
The sentence adjudged by the court-martial included a
reprimand, confinement for five years, dismissal, and a $400,000
fine. The sentence also contained a contingent confinement
provision under Rule for Courts-Martial (R.C.M.) 1003(b)(3): if
the fine was not paid, Appellant would be required to serve an
additional five years of confinement. The convening authority
approved the sentence, but disapproved that portion of the fine
in excess of $300,000, and suspended for a period of twenty-four
months execution of that portion of the sentence adjudging a
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fine in excess of $200,000. The convening authority ordered the
sentence executed, except for that part of the sentence
extending to dismissal.
Subsequently, the Commanding General, Marine Corps Base,
Camp Pendleton (commanding officer), ordered a fine enforcement
hearing under R.C.M. 1113(d)(3) to determine whether Appellant’s
failure to pay the approved fine was due to indigence. After
the hearing, the commanding officer ordered Appellant to serve
an additional five years of confinement for willful failure to
pay the unsuspended fine.
The United States Navy-Marine Corps Court of Criminal
Appeals set aside the findings of guilty as to the charges of
conspiracy to steal government property and destruction of
nonmilitary government property, and affirmed the remaining
findings. United States v. Phillips, No. NMCCA 200400865, 2006
CCA LEXIS 61, at *39, 2006 WL 650022, at *13 (N-M. Ct. Crim.
App. Mar. 16, 2006) (unpublished). The court reassessed the
sentence in light of its actions, and affirmed the sentence as
approved by the convening authority. 2006 CCA LEXIS 61, at *39-
*40, 2006 WL 650022, at *13.
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER A SUBSTITUTE CONVENING AUTHORITY CAN
ORDER ADDITIONAL CONFINEMENT EXECUTED FOR
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FAILURE TO PAY AN ADJUDGED FINE AFTER THE
SENTENCE HAS BEEN APPROVED AND EXECUTED.
II. IF APPELLANT’S CONTINGENT CONFINEMENT WAS
WITH PROPER AUTHORITY, WHETHER IT WAS
APPROPRIATE IN LIGHT OF OTHER POSSIBLE
PUNISHMENTS ADEQUATE TO MEET THE
GOVERNMENT’S NEED.
We hold that the commanding officer who executed the
contingent confinement provision was authorized to do so. We
further hold that the commanding officer was not required to
consider alternatives to contingent confinement after concluding
that Appellant was not indigent.
I. BACKGROUND
A. FINES AND CONTINGENT CONFINEMENT
As part of the sentence, a court-martial “may adjudge a
fine in lieu of or in addition to forfeitures.” R.C.M.
1003(b)(3). The rule contains the following authority to impose
contingent confinement:
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.
Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), requires
the convening authority to take action on the sentence of the
court-martial. The convening authority has broad power under
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Article 60(c)(2), UCMJ, to “approve, disapprove, commute, or
suspend the sentence in whole or in part.”
When taking action on the sentence, the convening
authority’s “approval or disapproval shall be explicitly
stated.” R.C.M. 1107(d)(1). “If only part of the sentence is
approved, the action shall state which parts are approved.”
R.C.M. 1107(f)(4)(A). “[W]hen appropriate,” the action shall
state “whether an approved sentence is to be executed or whether
all or any part of the sentence is to be suspended.” R.C.M.
1107(f)(4)(B).
Certain portions of a sentence may take effect prior to the
convening authority’s action. See, e.g., Article 57(a)(1),
UCMJ, 10 U.S.C. § 857(a)(1) (2000) (forfeitures of pay and
allowances; reduction in rank); Article 57(b), UCMJ
(confinement). A fine, however, 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. Article
57(c), UCMJ; Article 71(c)(2), UCMJ, 10 U.S.C. § 871(c)(2)
(2000); R.C.M. 1113(b). See, e.g., United States v. Palmer, 59
M.J. 362, 363 (C.A.A.F. 2004) (the appellant was informed by
letter that he had thirty days from date of convening
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authority’s action on sentence to pay fine, and subsequently the
appellant was granted an additional thirty-day extension of time
to pay).
After the convening authority takes action on the results
of a general court-martial, the convening authority forwards the
record to the Judge Advocate General concerned to initiate
appellate review. Articles 65(a), 66, 69(a), UCMJ, 10 U.S.C. §
865(a), 866, 869(a) (2000); R.C.M. 1111(a)(1). The convening
authority may recall or modify his or her action in a general
court-martial at any time prior to forwarding the record for
review so long as the modification does not result in action
less favorable to the accused than the earlier action. R.C.M.
1107(f)(2). After the convening authority has taken action on
the sentence and has forwarded the record for review, reviewing
authorities may return the case to the convening authority with
direction to take further action in the case. Id.The question of who may convert contingent confinement into
actual confinement in the event of failure to make timely
payment is not addressed in the UCMJ, and is covered only
obliquely in the Manual for Courts Martial, United States (MCM).
As we noted in Palmer, 59 M.J. at 366 n.7, the MCM suffers from
a “lack[] [of] specific guidance regarding the procedures
applicable to a delinquent, but not indigent accused.” In
particular, the MCM does not identify the proper authority to
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execute contingent confinement, referring only to “the authority
considering imposition of confinement” in the context of
addressing claims of indigency:
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.
R.C.M. 1113(d)(3). We have recognized, however, that 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 R.C.M. 1113(d)(3).
Palmer, 59 M.J. at 364 n.5. 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. Id.Under R.C.M. 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
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no alternative punishment is adequate to meet the government’s
interest in punishment. Id. If an accused cannot demonstrate
indigence, the authority considering confinement need not
consider alternatives before executing contingent confinement.
Palmer, 59 M.J. at 365-66. 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. See id. at 366.
B. CONTINGENT CONFINEMENT IN THE PRESENT CASE
The convening authority in Appellant’s court-martial took
his action on the sentence under Article 60(c), UCMJ, on June
10, 2004. As noted at the outset of this opinion, the convening
authority approved the adjudged fine in part, suspended part of
the fine, and approved the balance of the sentence, including
the contingent confinement provision.
On June 10, 2005, the commanding officer notified Appellant
of his failure to pay the fine, and stated his intent to conduct
a fine enforcement hearing under R.C.M. 1113(d)(3) if the fine
was not paid in full by June 16, 2005. When Appellant failed to
pay the fine in full, the commanding officer ordered a fine
enforcement hearing under R.C.M. 1113(d)(3) to determine whether
the contingent confinement provision of Appellant’s sentence
should be converted to actual confinement due to Appellant’s
failure to pay.
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The fine enforcement hearing officer determined, based on a
preponderance of the evidence presented at the hearing, that
Appellant was not indigent. The hearing officer found that,
although Appellant had remitted payments totaling $790 in
partial fulfillment of his debt, he failed to make bona fide
efforts to pay the fine, and had engaged in asset-shifting to
avoid payment. The hearing officer noted that Appellant had
offered to repay the fine under an installment plan upon his
release from confinement. However, he concluded that neither
Appellant’s proposed payment plan nor any other alternative to
confinement was adequate to meet the Government’s interest in
carrying out the adjudged sentence.
The staff judge advocate considered the hearing officer’s
findings, and recommended, based on Appellant’s “subterfuge,
previous conduct designed to remove assets from his control, and
his willful failure to take reasonable steps to liquidate assets
to pay his fine,” that the five-year period of contingent
confinement be executed. After considering the results of
trial, fine enforcement hearing report, staff judge advocate’s
recommendation, and matters submitted by defense counsel, the
commanding officer ordered execution of the contingent
confinement provision “for contumacious conduct (i.e., willful
failure to pay).”
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The Court of Criminal Appeals held that R.C.M. 1107(d)(1)
did not prohibit the execution of the fine enforcement provision
in this case, and that the Commanding General, Marine Corps
Base, Camp Pendleton, was the proper authority to act in this
matter. Phillips, 2006 CCA LEXIS 61, at *39, 2006 WL 650022, at
*13.
II. DISCUSSION
A. AUTHORITY TO EXECUTE CONTINGENT CONFINEMENT
The first granted issue requires us to determine whether
the convening authority’s action on June 10, 2004, approving the
sentence under Article 60(c), UCMJ, precluded a different
officer from converting the contingent confinement provision of
the sentence into actual confinement when Appellant failed to
pay the fine. We review this question of law de novo.
Appellant argues that the Government’s window to order him
into contingent confinement expired on the date the convening
authority ordered the sentence executed because the convening
authority did not expressly convert contingent confinement to
actual confinement at that time. According to Appellant, the
commanding officer could not impose contingent confinement after
the sentence was executed and the record forwarded for review,
citing R.C.M. 1107(f)(2) (permitting a convening authority to
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modify his or her action at any time before forwarding the
record for review).
If the contingent confinement provision of an appellant’s
sentence could be executed only at the same time a fine takes
effect, a convening authority would have to determine that an
accused willfully failed to pay a fine under R.C.M. 1113(d)(3)
even before the fine was due. See Article 57(c), UCMJ. The
texts of the applicable rules and statutes do not mandate such a
conclusion, and we decline to interpret those provisions in a
manner that would generate an unreasonable result.
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. The procedural requirements of R.C.M. 1113(d)(3)
ensured that due process was satisfied before confinement was
ordered in the present case.
R.C.M. 1113(d)(3) also 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.
In this case, a year passed between the date of execution
of Appellant’s sentence and the date he was ordered to pay the
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unsuspended fine. When he failed to pay the fine, the
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 the 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; he acted as
“the authority considering imposition of confinement” under
R.C.M. 1113(d)(3). We find no error in the execution of
contingent confinement in this case.
B. CONSIDERATION OF ALTERNATIVE PUNISHMENTS
The second granted issue requires us to determine whether
the commanding officer was obligated to consider alternative
punishments before ordering Appellant into contingent
confinement. We review the decision to convert a fine into
confinement for abuse of discretion. Palmer, 59 M.J. at 366.
The fine enforcement hearing officer determined that
Appellant was not indigent, and the staff judge advocate and the
commanding officer accepted his conclusion. The determination
that Appellant was not indigent is not at issue in the present
appeal under the granted issues.*
*
Appellant, in his reply brief, raised the question of whether
the length of the contingent confinement period was appropriate
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The authority considering imposition of contingent
confinement is not required by R.C.M. 1113(d)(3) or any other
provision of the MCM to consider alternatives to confinement for
a nonindigent accused. Because Appellant failed to establish
that he is indigent, the commanding officer was not required to
consider whether Appellant’s proposed payment plan or any
alternative punishment would be adequate to meet the
Government’s interests. Compare Palmer, 59 M.J. at 365 (no
requirement to consider whether the appellant’s proposed payment
plan would satisfy ends of justice where the appellant was not
indigent and was “engaged in conduct designed to remove assets
from his control and did not take reasonable steps to liquidate
assets to make timely payment”), with United States v. Tuggle,
34 M.J. 89, 92 (C.M.A. 1992) (error in failing to consider
alternatives to confinement where the appellant’s “financial
in view of subsequent adjustments in the fine. See R.C.M.
1003(b)(3) (describing contingent confinement as a “fixed period
considered an equivalent punishment to the fine”). The issue of
whether the contingent confinement period imposed in this case
constituted an “equivalent punishment” is not within the scope
of the granted issues, and we decline to address it. We take
this opportunity, however, to note the need for guidance on
contingent confinement procedures in cases involving delinquent,
nonindigent servicemembers. See Palmer, 59 M.J. at 366 n.7.
Such guidance should address the considerations applicable to
the imposition of contingent confinement when the original fine
has been substantially reduced by partial payment, subsequent
official action, or both.
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limitations clearly could have placed him at some level of
indigence”).
III. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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