                       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Aug. 20, 2003) (unpublished).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).

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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.

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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




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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.



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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).

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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).

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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.


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United States v. Stebbins, No. 03-0678/AR


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).



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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.




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United States v. Stebbins, No. 03-0678/AR


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).

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United States v. Stebbins, No. 03-0678/AR


“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.



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United States v. Stebbins, No. 03-0678/AR


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

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United States v. Stebbins, No. 03-0678/AR


      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.

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United States v. Stebbins, No. 03-0678/AR


. . . 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.


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United States v. Stebbins, No. 03-0678/AR


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).

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United States v. Stebbins, No. 03-0678/AR


      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

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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.


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United States v. Stebbins, No. 03-0678/AR


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).

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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.

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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.



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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).




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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.

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