United States v. Palmer

IN THE CASE OF
UNITED STATES, Appellee
v.
Alphonso C. PALMER, Staff Sergeant
U.S. Air Force, Appellant
No. 03-0173
Crim. App. No. 34379
United States Court of Appeals for the Armed Forces
Argued November 18, 2003
Decided April 1, 2004
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Sandra K. Whittington (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea and Captain James M.
Winner (on brief); Major Maria A. Fried.
For Appellee: Captain Kevin P. Stiens (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief);
Lieutenant Colonel Lance B. Sigmon.
Military Judge: Robert G. Gibson
This opinion is subject to editorial correction before final publication.
United States v. Palmer, No. 03-0173/AF
Judge ERDMANN delivered the opinion of the Court:
Appellant, Staff Sergeant Alphonso C. Palmer, separately
conspired with two employees of the Naval Exchange to illegally
obtain automotive parts and tires from the Naval Exchange, which
Palmer would then use or sell in his private business
enterprises. The items Palmer unlawfully obtained exceeded
$100,000.00 in value. He was found guilty of two specifications
each of conspiracy and larceny, violations of Articles 81 and
121, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 881and 921 (2000), respectively.
He was sentenced to a bad-conduct discharge, confinement
for 30 months, total forfeitures, reduction to the lowest
enlisted grade, and a fine in the amount of $30,000.00. The
sentence also provided that if the fine was not paid, Palmer
would be subject to an additional 12 months of confinement.
This fine and the provision for contingent confinement gave rise
to the two issues we granted for review:
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
WHEN IT DEEMED APPELLANT'S FAILURE TO PAY HIS ADJUDGED
DEBT AS WILLFUL AND APPROVED THE CONTINGENT
CONFINEMENT FOR 95 DAYS DESPITE THE GOVERNMENT HAVING
RECEIVED A $3,000.00 PARTIAL PAYMENT TOWARDS THE FINE.
II.
WHETHER THE INITIAL GOVERNMENT ACCEPTANCE OF
APPELLANT'S $3,000.00 PARTIAL FINE PAYMENT ON MARCH 9,
2001, WHICH OCCURRED AFTER THE CONVENING AUTHORITY'S
REMISSION OF THE UNPAID BALANCE OF THE ADJUDGED FINE
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AND APPROVAL OF AN ADDITIONAL 95 DAYS OF CONFINEMENT,
EITHER (1) NEGATED THE CONVENING AUTHORITY'S ACTION
REMITTING THE UNPAID BALANCE OF THE ADJUDGED FINE AND
APPROVING ADDITIONAL CONFINEMENT, OR (2) SHOULD HAVE
REDUCED THE ADDITIONAL CONFINEMENT TO 58 DAYS.
We affirm the decision of the Air Force Court of Criminal
Appeals. The Court of Criminal Appeals did not err in its
treatment of Palmer’s failure to pay his debt, his March 9, 2001
partial payment or the execution of the contingent confinement.
FACTS
On December 31, 2000, the convening authority approved the
sentence including the $30,000.00 fine and the contingent
confinement. On that same day, the convening authority informed
Palmer by letter that he had 30 days to pay the fine to the
Hickham Air Force Base Finance and Accounting Office and that
after 30 days the amount due would be considered delinquent.
On January 29, 2001, Palmer requested an additional 30 days
within which to pay the fine. He was granted an extension until
February 9. On the extended due date of February 9, Palmer made
a partial payment of $5,000.00. On February 13 he made a second
payment in the amount of $17,175.00, leaving an unpaid balance
on the fine of $7,825.00.
Because the fine had not been paid in full by the extended
February 9 due date, the convening authority ordered a hearing
pursuant to Rule for Courts-Martial 1113(d)(3) [R.C.M.] to
determine whether the conditional confinement should be
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United States v. Palmer, No. 03-0173/AF
executed. A hearing officer conducted the hearing on February
14 and found: (1) at the time of the contingent confinement
hearing, Palmer was “delinquent in [the] payment of his fine[]
in the amount of $7,825.00”; (2) Palmer “failed to show by a
preponderance of the evidence that his failure to pay [was] due
to indigence or that he made a good faith effort to pay”; and
(3) there was evidence that Palmer had “an intent to hide assets
and deprive the Government of monies owed.”1 Despite these
findings, the hearing officer recommended that Palmer be given
until 8:00 a.m. on March 1 to pay the balance of the fine, and
that if the balance was not paid by that time then he should
serve an additional 95 days of confinement.2
In a February 28 memorandum, the convening authority
informed Palmer that he had adopted the hearing officer’s
recommendations. The memorandum specifically stated that Palmer
had until 8:00 a.m., March 1 to pay the remaining $7,825.00 and
if it was not paid, the convening authority would execute
1
Palmer owned two vehicles with a cumulative loan value of
$14,175; he transferred ownership of two other vehicles to
relatives in Samoa for personal reasons; he was part owner of a
business called “Momo’s Tires” that had business inventory
available for liquidation; and Palmer’s wife sold their car
stereo business in July 2000 on contract for $150,000.00.
2
In a statement dated February 13, 2001, attached to the
contingent confinement hearing record, Palmer stated that he
anticipated that he could pay the balance of the fine within the
next two weeks.
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United States v. Palmer, No. 03-0173/AF
additional confinement proportional to the amount of the fine
remaining unpaid.
On March 8, after no further payments on the fine had been
received, the convening authority remitted the unpaid $7,825.00
balance of the fine and executed an additional 95 days of
confinement in lieu of the fine.3 Perhaps unaware of either the
February 28 memorandum or the March 8 action, Palmer made a
partial payment on March 9 in the amount of $3,000.00 to the
Hickham AFB Finance and Accounting Office.
On March 22 the convening authority rejected the $3,000.00
payment. In a memorandum to Palmer, the convening authority
informed Palmer that the remission of the unpaid balance of the
fine and the execution of the additional days of confinement had
not changed and that the $3,000.00 payment from March 9 would be
returned. Subsequently, Palmer received a $2,342.34 payment
from the Government, which represented the rejected $3,000.00
payment less an amount for other debts Palmer owed the United
States.
3
The members adjudged contingent confinement for 12 months in
the event the fine was not paid. The 95 days of confinement
recommended by the contingent confinement hearing officer and
executed by the convening authority was proportional to the
amount of the fine remaining unpaid when the convening authority
acted.
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United States v. Palmer, No. 03-0173/AF
DISCUSSION
Pursuant to the authority Congress has given him to
establish punishments, Article 56, UCMJ, 10 U.S.C. § 856 (2000),
the President has provided that a court-martial “may adjudge a
fine in lieu of or in addition to forfeitures.” R.C.M.
1003(b)(3). The rule further provides that “[i]n 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.”4 Id.Before contingent confinement can be executed, the
convening authority must afford the person fined notice and an
4
The unpaid portion of Palmer’s fine was remitted pursuant to
Department of the Air Force Instruction 51-201, Administration
of Military Justice, §§ 9.9.2, 9.9.5.11 (Nov. 26, 2003) [AFI 51-
201], both of which indicate that the additional confinement is
a “substitute” for the fine. This opinion does not address
whether the convening authority may execute contingent
confinement without remitting any unpaid portion of an approved
fine or providing for remission of the unpaid portion of a fine
upon service of a contingent period of confinement.
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United States v. Palmer, No. 03-0173/AF
opportunity to be heard.5 R.C.M. 1113(d)(3). 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.” Id. 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.” Id.
See United States v. Tuggle, 34 M.J. 89, 91 (C.M.A. 1992);
United States v. Soriano, 22 M.J. 453, 454 (C.M.A. 1986).
There is no dispute that Palmer was afforded those due
process rights to which he was entitled. Nonetheless, citing
5
In this case, the Commander, 15th Air Base Wing, Hickham Air
Force Base, took all the actions relevant to the granted issue.
Although his authority to take these actions has not been
challenged in the course of this appeal, we note that those
actions were taken in three capacities. Initially, this
commander took action on the record of trial in his capacity as
the general court-martial convening authority over the court-
martial. See Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M.
1107. Thereafter, in taking actions relating to nonpayment of
the fine, specifically ordering the contingent confinement
hearing and executing the contingent confinement, the commander
acted as the “authority considering imposition of confinement”
under R.C.M. 1113(d)(3) pursuant to AFI 51-201, § 9.9.5.2 as the
commander exercising general court-martial authority over
Palmer. Finally, in remitting the unpaid balance of Palmer’s
fine, the commander was exercising the Article 74, UCMJ, 10
U.S.C. § 874 (2000), authority of the Secretary of the Air
Force, as delegated under AFI 51-201, § 11.17.
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Tuggle, 34 M.J. at 92-93, Palmer argues that even though he was
technically not indigent he was entitled to consideration of
something short of contingent confinement because he made good
faith efforts to pay the fine and those efforts required the
convening authority to consider what payment plan or resolution
would best satisfy the ends of justice. Tuggle, 34 M.J. at 92.
Palmer further asserts that when the Government accepted the
$3,000.00 on March 9 there was a constructive waiver of the
March 1 deadline and a constructive retraction of the convening
authority’s March 8 order. We disagree.
In regard to Palmer’s argument that he acted in good faith,
the hearing officer found that Palmer had “failed to show by a
preponderance of the evidence that . . . he made a good faith
effort to pay.” We are not persuaded that the hearing officer’s
finding was clearly erroneous. There is a substantial basis in
the hearing record to conclude that, rather than making good
faith efforts to timely pay the fine, Palmer engaged in conduct
designed to remove assets from his control and did not take
reasonable steps to liquidate assets to make timely payment.
Further, Palmer’s history of payment on the fine does not
support his contention that he made payments in good faith. He
made no payments until the last day of his first extension, at
which time he paid only one-sixth ($5,000.00) of the amount due.
Palmer’s second payment, which was after the extended due date
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United States v. Palmer, No. 03-0173/AF
of February 9, was again only a partial payment and left a
substantial portion of the fine unpaid. Even the final
$3,000.00 was less than the amount due and tendered at a time
when, as far as Palmer knew, he was already a month beyond the
extended due date. The R.C.M. 1113(d)(3) hearing record and
payment history do not support Palmer’s contention that he was
acting in a good faith effort to fulfill his obligation to pay
the fine.
Palmer’s reliance on Tuggle is misplaced. After a hearing
officer had determined Tuggle was not indigent and had not made
good faith efforts to pay the fine, Tuggle approached the
convening authority requesting a monthly payment plan in lieu of
serving the contingent period of confinement. The convening
authority, however, executed the contingent confinement.
This Court held that the convening authority erred as a
matter of law when he did not “consider whether the installment
payment plan would satisfy the ends of justice in [that] case.”
Id. at 92. Two factors served as a predicate to that holding.
First, this Court noted that “Tuggle’s financial limitations
clearly could have placed him at some level of indigence.” Id.
Second, the Court found that the Government had alternatives
available to meet its penal interests. Id.
In this case we find nothing in the record to cause us to
question the finding that Palmer was not indigent. This
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conclusion is bolstered by the fact that at no point during this
appeal did Palmer claim that he was in fact indigent and his
appellate defense counsel’s concession during argument that he
was “technically” not indigent. Additionally, at the time the
fine was approved Palmer did not approach the convening
authority and request a payment plan or schedule to accommodate
his financial situation. Instead, Palmer requested a reduction
in the fine in his post-trial submissions and later an extension
of the due date. Even though he received several extensions, he
made only one timely payment and each of his payments was in an
amount substantially less than the full amount due.
Under these circumstances, the convening authority was not
obligated to withdraw or amend his action of March 8 when Palmer
made his final untimely payment of $3,000.00. This belated
payment did nothing to alter or excuse the fact that Palmer did
not comply with the payment terms established by the convening
authority and the “acceptance” of this payment did not vest
Palmer with any new substantive rights. After the convening
authority remitted the unpaid balance of the fine and executed
the contingent confinement on March 8, Palmer’s fine-related
debt to the United States was extinguished. The finance
office’s administrative “acceptance” of the $3,000.00 on March 9
did not resurrect the fine or alter the convening authority’s
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March 8 action. On March 9 there was simply no fine against
which to apply the untimely $3,000.00 payment.6
In his memorandum of March 22 the convening authority set
forth the background facts relating to Palmer’s fine, his
payment history, and the contingent confinement hearing.
Following this summary, the convening authority stated, “My
action [remitting the fine and executing the confinement]
stands[.]”7 In our view this reflects that the convening
authority gave due consideration to whether the ends of justice
would be served by revoking his action of March 8 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 $3,000.00, less deductions for debts to
the United States. See generally 5 U.S.C. § 5514(a)(1) (2000).
Absent indigence, Palmer’s untimely, unilateral efforts to
make partial payment on his fine did not create any obligation
6
As we hold that the convening authority did not abuse his
discretion by refusing the March 9 $3,000.00 payment, we need
not address Palmer’s argument that the contingent confinement
should have been reduced to 58 days to reflect the receipt of
the $3,000.00.
7
We note that the Manual for Courts-Martial, United States (2002
ed.) lacks specific guidance regarding the procedures applicable
to a delinquent, but not indigent accused. In light of the more
substantial civilian experience in this area, the President
might well consider further amplification in lieu of case-by-
case appellate review of such matters.
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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 Palmer
to repeatedly interrupt the effective administration of justice
without fulfilling the obligations imposed upon him pursuant to
a lawful sentence and process.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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