U.S. v. Palmer, 59 M.J. 362

Trial Stages: Sentence and Punishment: Fine / Contingent Confinement

1. 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
2. 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
3. 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
4. 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
5. after appellant made an untimely, partial payment following the convening authority’s action remitting the fine and executing the contingent confinement, the convening authority gave due consideration to whether the ends of justice would be served by revoking his action 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 payment, less deductions for debts to the United States; absent indigence, appellant’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 appellant to repeatedly interrupt the effective administration of justice without fulfilling the obligations imposed upon him pursuant to a lawful sentence and process