United States v. Stebbins , 61 M.J. 366 ( 2005 )

UNITED STATES, Appellee
v.
John H. STEBBINS, Staff Sergeant
U.S. Army, Appellant
No. 03-0678
Crim. App. No. 20000497
United States Court of Appeals for the Armed Forces
Argued January 26, 2005
Decided August 30, 2005
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.
United States v. Stebbins, No. 03-0678/AR
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
November 6, 1997,3 and the President signed the bill into law on
November 18, 1997.4 But the President did not amend the Manual
for Courts-Martial (MCM or Manual) to incorporate the punishment
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Aug. 20, 2003) (unpublished).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 (Dec. 15, 1997).
2
United States v. Stebbins, No. 03-0678/AR
until April 11, 2002.5 Appellant now claims that LWOP was not an
authorized punishment for his offenses. We granted review to
determine whether:
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.
5
Exec. Order No. 13,262, 67 Fed. Reg. 18,773, 18,779 (Apr. 11,
2002).
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.
8
Stebbins, 59 M.J. at 463.
3
United States v. Stebbins, No. 03-0678/AR
BACKGROUND
Appellant enlisted in the Army on June 4, 1996, for a term
of six years. His military record reflects exceptional service
as an Army Ranger, and he was awarded a Silver Star for his
heroism in Mogadishu, Somalia, in the incident that later became
the basis of the book and movie Black Hawk Down.
Unfortunately, the heroism Appellant displayed on the
battlefield did not translate into his home life. Sometime
around October 1, 1998, when Appellant and his family lived at
Fort Benning, Georgia, he began sexually abusing his six-year-
old daughter, MS. Appellant approached MS and asked her whether
she had seen him in bed with his wife. After she replied that
she had, Appellant made MS remove her clothes, lie face down on
the bed and spread her legs. He then raped her. Appellant
admits that he raped MS at least two more times before September
30, 1999. Before raping MS for a third time, Appellant also
forcibly sodomized her.
Appellant’s offenses were discovered on March 17, 1999,
after Appellant and his wife separated and were living apart.
In response to an argument Appellant and his wife had over the
telephone, MS, who was then seven, told her mother that she was
“mad at him” and that she “hate[d] him” “[b]ecause he did sex to
me.” When questioned by her mother, MS indicated that Appellant
4
United States v. Stebbins, No. 03-0678/AR
had penetrated her genitals and anus and had placed his penis in
her mouth.
DISCUSSION
I. LWOP is an Authorized Punishment for Rape After November
18, 1997
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 November 6,
1997, which the President signed into law on November 18, 1997,
the President did not incorporate this punishment into the MCM
until April 11, 2002.
In United States v. Ronghi,9 we held that LWOP was an
authorized punishment for premeditated murders committed after
November 18, 1997. Although Ronghi did not address the
availability of LWOP for any other offenses, we find the
reasoning in that case controlling in this case. Applying its
principles to the offense of rape committed after November 18,
1997, we now hold that LWOP was authorized for Appellant’s
offenses.
Article 56a of the UCMJ, enacted on November 18, 1997,10
states that a court-martial may adjudge a sentence of LWOP for
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.
5
United States v. Stebbins, No. 03-0678/AR
“any offense for which a sentence of confinement for life may be
adjudged.”11 Under Article 120, UCMJ, the maximum punishment for
the offense of rape is “death or such other punishment as a
court-martial may direct.”12 Because confinement for life is a
lesser punishment than death, Congress authorized confinement
for life as a possible punishment for rape as “such other
punishment as a court-martial may direct.”13 Therefore, when
Congress adopted Article 56a, it intended to authorize LWOP as
another available sentence for a rape that occurred after
November 18, 1997.
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
11
10 U.S.C. § 856a(a) (2000).
12
10 U.S.C. § 920.
13
Id.
14
10 U.S.C. § 918 (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).
6
United States v. Stebbins, No. 03-0678/AR
limiting LWOP’s availability, it was an authorized sentence”
when Appellant committed his offenses between October 1, 1998,
and September 30, 1999.17
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
17
60 M.J. at 84.
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”).
19
60 M.J. at 85.
20
MCM (2002 ed.), pt. IV, ¶ 45.e.(1).
7
United States v. Stebbins, No. 03-0678/AR
rape case.21 Additionally, the President explicitly recognized
LWOP as an authorized sentence “only” for “offenses committed
after November 18, 1997.”22 Appellant committed his offenses in
1998 and 1999. Finally, as we found in Ronghi, R.C.M. 1003,
which lists the kinds of punishments that a court-martial may
impose, does not proscribe LWOP as a form of punishment.
Although R.C.M. 1003 does not specifically list LWOP, it
“nevertheless allow[s] LWOP, because it is not a new form of
punishment, but simply a longer term of confinement than
military law had previously allowed a court-martial to
adjudge.”23
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
21
See Ronghi, 60 M.J. at 85.
22
Exec. Order 13,262 § 6.b, 67 Fed. Reg. 18,773, 18,779 (Apr.
11, 2000).
23
Ronghi, 60 M.J. at 85 (emphasis omitted).
24
See Coker v. Georgia, 433 U.S. 584, 599 (1977).
25
Id. at 592.
8
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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
26
Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998).
27
Id. at 178 (internal quotation marks and citations omitted).
9
United States v. Stebbins, No. 03-0678/AR
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 November 18, 1997. Accordingly, the pretrial agreement is
not null and void because Appellant was correctly instructed by
the military judge as well as defense counsel that LWOP was an
available punishment for rape. Additionally, there was no
material misunderstanding when he signed the pretrial agreement.
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
October 2, 2000, the convening authority approved the fine,
without approving either the contingent confinement or
establishment of the trust fund.
10
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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
28
R.C.M. 1003(b)(3) discussion (emphasis added).
29
R.C.M. 1003(a).
30
R.C.M. 1003(b)(3).
11
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“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 United
States for some amount illegally diverted to private purposes.”32
Therefore, the 1921 MCM, U.S. Army, notes that a fine is
“especially recognized” as a form of punishment in Article of
War 94, Frauds Against the Government,33 and the 1928 MCM, U.S.
Army, states that a fine is “expressly recognized” as a form of
31
MCM (1949 ed.), ¶ 117c, § B (emphasis added).
32
William Winthrop, Military Law and Precedents 419 (2d ed.
1920)[hereinafter Winthrop].
33
MCM, U.S. Army (1921 ed.), ¶ 317.
12
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punishment in both Article of War 94, and Article of War 80,
Dealing in Captured or Abandoned Property.34 Also, the 1949 Army
and Air Force editions of the Manual included the “unjust
enrichment” language with the following qualifier: that an
accused should not be adjudged a fine in the absence of unjust
enrichment for “an offense of which he is convicted involving
loss to the United States or violative of military directives.”35
Therefore, it is clear that the drafters of these pre-UCMJ
editions of the Manual for Courts-Martial viewed fines as the
appropriate punishment for those offenses that clearly involved
the need to make the government whole for money or property
taken from it.36
34
MCM, U.S. Army (1928 ed.), ¶ 103g.
35
MCM, U.S. Army (1949 ed.), ¶ 117c, § B; MCM, U.S. Air Force
(1949 ed.), ¶ 117c, § B.
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
13
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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
“of course, . . . the finance officer who absconds with
government funds, and the black marketeer”).
37
Winthrop, supra note 32, at 419.
38
MCM, U.S. Army (1921 ed.), ¶ 310.
39
Id. ¶ 311.
14
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. . . 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
40
MCM, U.S. Army (1928 ed.), ¶ 103g.
41
MCM, U.S. Army (1949 ed.), ¶ 117c, § B.
15
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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 United States as consistent with the
President’s authorization to impose fines in cases that may not
involve “unjust enrichment.”
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
42
Cumulative Pocket Part to the Manual for Courts-Martial,
United States Army (1951 ed.) ¶ 126h (1956).
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).
16
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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,
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
17
United States v. Stebbins, No. 03-0678/AR
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
where there was no evidence of unjust enrichment or “any other
good reason for the fine”).
47
U.S. Const. amend. VIII.
48
524 U.S. 321 (1998).
49
Id. at 329.
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. Id. at 44.
18
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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
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)).
52
Id. at 334.
53
Id.
54
See Article 66, UCMJ; 10 U.S.C. § 866 (2000).
19
United States v. Stebbins, No. 03-0678/AR
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
55
Bajakajian, at 337-40.
56
Id. at 337-38.
57
Id. at 338.
58
Id. at 338-39.
59
Id. at 339.
60
Id.
61
Id.
20
United States v. Stebbins, No. 03-0678/AR
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
62
Id. at 334.
63
Id.
21
United States v. Stebbins, No. 03-0678/AR
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
64
Bajakajian, 524 U.S. at 338.
65
10 U.S.C. § 920.
66
Bajakajian, 524 U.S. at 339.
67
See U.S. Sentencing Guidelines Manual § 5E1.2 (2004).
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].” Id.
§ 2A3.1(b)(3).
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United States v. Stebbins, No. 03-0678/AR
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
69
Id. at 334.
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).
23
United States v. Stebbins, No. 03-0678/AR
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.
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.
24