                         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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United States v. Phillips, No. 06-0600/MC


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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United States v. Phillips, No. 06-0600/MC


           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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United States v. Phillips, No. 06-0600/MC


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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United States v. Phillips, No. 06-0600/MC


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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United States v. Phillips, No. 06-0600/MC


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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United States v. Phillips, No. 06-0600/MC


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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United States v. Phillips, No. 06-0600/MC


     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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United States v. Phillips, No. 06-0600/MC

       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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United States v. Phillips, No. 06-0600/MC

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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United States v. Phillips, No. 06-0600/MC

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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United States v. Phillips, No. 06-0600/MC

     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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United States v. Phillips, No. 06-0600/MC

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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