

   
   
   
   U.S. v. Mitchell



IN THE CASE OF
UNITED STATES, Appellee
v.
Johnathan W. MITCHELL, Private
U.S. Marine Corps, Appellant
 
No. 97-0935
Crim. App. No. 95-2031
 
United States Court of Appeals for the Armed
Forces
Argued March 4, 1999
Decided September 27, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and EFFRON, JJ., joined.
SULLIVAN, J., filed a concurring opinion.

Counsel
For Appellant: Lieutenant Dale O. Harris,
JAGC, USNR (argued); Lieutenant Lisa C. Guffey, JAGC, USNR, Lieutenant
E. K. Rubiella, JAGC, USNR, and Johnathan W. Mitchell (Pro se).
For Appellee: Major Mark K. Jamison,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, Commander D.
H. Myers, JAGC, USN, and Lieutenant Janice K. OGrady, JAGC,
USNR (on brief); Colonel Charles Wm. Dorman, USMC, and Lieutenant
Commander Paul Jones, JAGC, USNR.
Military Judge: E. D. Clark

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of the Court.
This case involves the question whether a convening
authority lawfully vacated a suspended sentence based on appellants failure
to make full restitution as required by a pretrial agreement.1
For the reasons set out below, we hold that the convening authoritys action
in this case was lawful.
Appellant has two convictions by general courts-martial.
This case involves the suspension of a portion of the punishment imposed
by his second court-martial and the subsequent vacation of that suspended
punishment.
At his first general court-martial, on October
7, 1986, appellant was convicted of an unauthorized absence and nine specifications
of bad checks, in violation of Articles 86 and 123a, Uniform Code of Military
Justice, 10 USC §§ 886 and 923a, respectively. The approved sentence
provided for a bad-conduct discharge, confinement for 18 months, partial
forfeiture of pay for 18 months, and reduction to the lowest enlisted grade.
The confinement in excess of 13 months was suspended for 12 months from
the date of trial.
After appellant was released from confinement
and placed on appellate leave pending completion of appellate review of
his first court-martial conviction, he cashed over $30,000 in bad checks.
Some were drawn on his depleted bank account. Others were forgeries, written
on the account of Carlos Rodriguez, whose identification card appellant
had altered. Appellant was apprehended and confined in the Navy brig at
Yokosuka, Japan. He escaped from the brig and remained absent for about
5½ years, until customs agents apprehended him on May 27, 1993,
as he was entering the United States from Canada in Buffalo, New York.
Appellant was then charged with desertion,
escape from confinement, forgery, bad checks, wrongful possession of a
fraudulent identification card, and tampering with an identification card,
in violation of Articles 85, 95, 123, 123a, and 134, UCMJ, 10 USC §§
885, 895, 923, 923a, and 934, respectively. The charges were referred to
a general court-martial.
Before his second general court-martial convened,
appellant negotiated a pretrial agreement in which he offered to plead
guilty and to make full restitution for the bad checks. In return, the
convening authority agreed to suspend any confinement in excess of 60 months
and to suspend any fine for the period of confinement plus 12 months from
appellants release from confinement. The pretrial agreement includes the
following restitution provision:

That I [appellant] agree to make full restitution
for the checks identified in the charges and specifications in the amount
specified below [$30,733.62]. That I will make restitution before the one
year anniversary date on which findings are announced. I understand and
agree that restitution is a specific condition I have offered to induce
the convening authority into accepting the sentence limitations of this
agreement. I also represent to the convening authority that I have the
financial resources and am able to make full restitution. I understand
that my representation is a material part of this agreement. I understand
and agree that if full restitution is not made before the one year anniversary
date on which findings are announced, in the amount specified below, that
the convening authority may conduct a vacation hearing in accordance with
Article 72 of the Uniform Code of Military Justice and Rule[] for Courts-Martial
1109, Manual for Courts-Martial (1984), to determine if this condition
has been met. I understand that I have the burden to prove full restitution
has been made.

The second general court-martial convicted appellant,
in accordance with his pleas, of the offenses set out above.2
During the sentencing hearing, appellant made an unsworn statement in which
he described his activities during his period of absence. He described
a "securities business that [he] established, founded, created at home
in Nassau, in the Bahamas." He also described a car rental business in
England. He suggested, without saying so specifically, that these two enterprises
were successful, growing businesses. He unequivocally stated that the combination
of these business assets and money in bank accounts was sufficient to make
restitution for all the bad checks.
The court-martial sentenced appellant to a
dishonorable discharge, confinement for 10 years, and total forfeitures.
In accordance with the pretrial agreement, the convening authority approved
the sentence but suspended confinement in excess of 60 months for the period
of confinement plus 12 months from the date of release from confinement.
The convening authority also reduced the total forfeitures to forfeiture
of $543 pay per month upon appellants release from confinement.
On November 28, 1994, appellant requested a
3-month extension of the period for making restitution. On December 20,
1994, the convening authority denied the requested extension but agreed
not to vacate the suspension of confinement until the date of the convening
authoritys action.
On February 10, 1995, the staff judge advocate
(SJA) advised the convening authority that he was not bound by the agreement
to suspend the confinement because appellant had failed to make the promised
restitution. The convening authority finally took action on May 5, 1995,
17 months after the trial, and suspended confinement in excess of 60 months
in accordance with the pretrial agreement. However, because appellant had
failed to make restitution as promised, the convening authority ordered
a vacation hearing in accordance with Article 72, UCMJ, 10 USC
§ 872.
The vacation hearing was conducted on June
5-8, 1995. Appellant declined to have detailed military counsel for the
first 2 days of his hearing and insisted on proceeding pro se.
For the 3rd and 4th days of the hearing, appellant
requested and received detailed counsel to act as his "co-counsel." At
the hearing, appellant asserted that when the pretrial agreement was negotiated,
he believed he had the means to make restitution, but when he attempted
to liquidate his overseas interests, he was unable to obtain sufficient
funds to make full restitution. He made restitution in the amount of $4,102.28,
far short of the $30,733.62 promised.
At the vacation hearing, appellant relied primarily
on his own testimony to support his claim that he was indigent. He testified
that at the time of his second general court-martial, his assets consisted
of a vehicle worth $10,000-12,000, a bank account worth about $3,000, and
"furnishings" worth about $4,000-6,000. Appellant testified that his car
rental business and securities business were one-man operations that closed
down when he was confined. They were seized by his creditors to satisfy
outstanding debts. He testified that the bank applied the money in the
bank accounts against his debts. He produced a letter from his sister corroborating
his testimony that his car rental business was "now defunct." Finally,
he produced his Ledger Brig Account, showing a zero balance. Appellant
produced no documentary evidence showing the value of his assets at the
time of trial. He presented no documentary evidence showing the seizure
of his businesses and bank accounts or the disposition of his assets.
The hearing officer contacted appellants father
in Nassau and interviewed him by telephone. Appellants father testified
that he was unable to financially assist appellant, and that appellants
creditors were trying to collect some of appellants debts from him. Appellants
father told the hearing officer that appellant owed $5,000 to Buckingham
University, in England, where he studied law, and about $30,000 to American
Express.
The hearing officer concluded that appellant
"did not make a sufficient bonafide effort to acquire funds in light of
the resource alternatives he represented to the Government in his pretrial
agreement." He also concluded that appellant "was less than straightforward
with the Government in representing the status of his finances."
The hearing officer recommended that appellant
be credited with 8 months against confinement for his partial restitution.
On September 6, 1995, the SJA recommended that the suspended sentence be
vacated. The convening authority rejected the hearing officers recommendation
for partial credit and vacated the suspended confinement in a supplemental
order dated September 8, 1995. The Court of Criminal Appeals affirmed the
findings and sentence and held that the convening authoritys vacation
action was lawful. 46 MJ 840 (1997).
Appellant now asserts that the convening authoritys
failure to honor the pretrial agreement violates public policy because
he is indigent and unable to make restitution as promised, citing Bearden
v. Georgia, 461 U.S. 660 (1983). The Government asserts that appellants
failure to make restitution as promised authorized the convening authority
to vacate the suspended sentence. The Government argues that Bearden
is not applicable to this case because it involved a fine imposed as a
sentence instead of a plea agreement bargained for by appellant.
Restitution is a permissible term of a pretrial
agreement. See RCM 705(c)(2)(C), Manual for Courts-Martial, United
States (1998 ed.);3 United
States v. Olson, 25 MJ 293 (CMA 1987). In Bearden, supra
at 672, the Supreme Court addressed both fines and restitution, holding
as follows:



We hold, therefore, that in revocation proceedings
for failure to pay a fine or restitution, a sentencing court must inquire
into the reasons for the failure to pay. If the probationer willfully refused
to pay or failed to make sufficient bona fide efforts legally to acquire
the resources to pay, the court may revoke probation and sentence the defendant
to imprisonment within the authorized range of its sentencing authority.
If the probationer could not pay despite sufficient bona fide efforts to
acquire the resources to do so, the court must consider alternative measures
of punishment other than imprisonment. Only if alternative measures are
not adequate to meet the States interests in punishment and deterrence
may the court imprison a probationer who has made sufficient bona fide
efforts to pay.



In United States v. Tuggle, 34 MJ 89, 92
(CMA 1992), this Court held that imposing confinement as a sanction for
failure to pay a fine violates the Due Process Clause if the probationer
has made good faith efforts to pay but cannot because of indigency. With
respect to fines, Bearden is incorporated in RCM 1113(d)(3). See
Drafters Analysis of RCM 1113(d)(3), Manual, supra at A21-86. Both
Bearden and Tuggle involved confinement imposed as part of
a sentence, rather than a negotiated plea agreement.
In Spriggs v. United States, 40 MJ 158
(CMA 1994), this Court considered a writ-appeal in which a probationer
had failed to remain in a sex offender program at his own expense, because
of indigence. This Court considered the probationers indigence but decided
that it was not necessary "to decide whether there [was] any legal impediment
to the Governments vacating the suspension if the reason for his failure
was financial inability." Instead, this Court held that completion of the
sex offender program could have taken up to 15 years, and that suspension
for this period was an "unreasonably long" period of probation, which is
prohibited by RCM 1108(d). Id. at 162. In a separate concurring
opinion, then-Judge Cox opined: "I would apply the same standards articulated
in Bearden . . . concerning enforcement of fines subject to other
terms and conditions of suspended sentences which require financial ability
in order to comply." Id. at 164.
The drafters of RCM 705(c)(2)(C) recognized
that "[e]nforcement of a restitution clause may raise problems if the accused,
despite good faith efforts, is unable to comply." Drafters Analysis of
RCM 705(c)(2)(C), Manual, supra at A21-39. To date, neither this
Court nor the Supreme Court has squarely addressed the question whether
the suspension of a sentence may be vacated for failure to make restitution,
where restitution was voluntarily proposed by an accused in a pretrial
agreement as a condition of suspension, and where the accused was unable
to carry out his part of the bargain.
Two service courts have addressed this issue.
In United States v. Foust, 25 MJ 647, 649 (1987), the Army Court
of Military Review distinguished between restitution imposed as part of
a sentence and restitution required by a pretrial agreement. It held that
a pretrial agreement requiring restitution could be enforced even if the
accused, acting in good faith, was unable to make restitution through no
fault of his own. The court explained its rationale as follows:



A promise to provide restitution is not the
same as an adjudged fine, nor is it the same as non-negotiated restitution
as part of an adjudged sentence. We emphasize that a provision for restitution
in a pretrial agreement is a provision to which an accused must freely
agree. Indeed, here appellant is the one who offered restitution as part
of the agreement.
. . . . To ensure the integrity of the trial
process, when an accused voluntarily offers and agrees to a restitution
provision in a pretrial agreement, it must be enforced.



Id. at 649. The Navy-Marine Corps Court
of Criminal Appeals cited Foust and adopted its rationale in this
case. 46 MJ at 842. Neither this Court nor the service courts have addressed
the question whether Bearden and Tuggle apply if the appellant
misrepresented his financial ability in order to obtain the pretrial agreement.
The underlying premise of the Supreme Courts
decision in Bearden and our decisions in Tuggle and Spriggs
is that the probationer is unable, through no fault of his own, to comply
with the terms of probation. Consistent application of this premise requires
that a probationer who cannot comply with a pretrial agreement through
his own fault not be permitted to use indigency to excuse his failure to
comply with the agreement. The linchpin of the analysis under Bearden,
Tuggle, and Spriggs is good faith.
In this case, appellant provided sketchy evidence
of his net worth at the time of his court-martial and incomplete evidence
at his vacation hearing. Even if his trial testimony about the value of
his assets is accepted at face value, i.e., a vehicle worth $12,000,
a bank account worth $3,000, and "furnishings" worth $4,000, these assets
were inadequate to make full restitution. At trial, he presented no bank
records, tax records, or income and earnings statements to document the
value of his assets. He did not explain how he expected his one-man businesses
to continue operating while he was confined.
At his vacation hearing, appellant testified
that all the assets were seized to pay debts, suggesting that at the time
of trial his businesses were heavily indebted. He presented no documentary
evidence to show whether there were any assets remaining after the debts
were satisfied and, if so, what happened to those assets.
We hold that the Due Process Clause does not
protect an accused who offers to make full restitution, knowing full well
that he cannot; nor does it protect an accused who fails to take timely
and reasonable steps to safeguard his assets so that he can make restitution
as promised. Based on the record before him, the convening authority was
justified in concluding that appellant either bargained in bad faith by
misrepresenting his net worth, or he failed to take reasonable steps to
safeguard his assets and convert them to cash after he was convicted and
sentenced. The record reflects that appellant either made a bargain that
he knew he could not keep, or he allowed his assets to be dissipated instead
of taking prompt and reasonable measures to secure them. Either alternative
constitutes bad faith. Accordingly, we conclude that the convening authority
lawfully vacated appellants suspended sentence.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 This Court granted
review of the following issue:
WHETHER REVOCATION OF APPELLANTS
SUSPENDED CONFINEMENT FOR FAILURE TO MAKE FULL RESTITUTION WITHIN A YEAR
OF THE ANNOUNCEMENT OF FINDINGS WAS LAWFUL ABSENT EVIDENCE AND FINDINGS
THAT HE WAS RESPONSIBLE FOR THE FAILURE.
2
Appellant was found not guilty of desertion
but guilty of the lesser-included offense of unauthorized absence.
3
The current version of RCM 705(c)(2)(C) is unchanged from the version in
effect at the time of appellants trial.
 
 
SULLIVAN, Judge (concurring):
"A deal is a deal" sums up this case. Appellant
failed to live up to his pretrial agreement by paying full restitution.
Therefore, the convening authority lawfully vacated appellants suspended
sentence.

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