New CGCCA opinion on failure to pay just debts

The Coast Guard Court released a divided opinion today dealing with failure to pay just debts. United States v. Lindsey, No. 1295 (C.G. Ct. Crim. App. June 12, 2009). The opinion isn't yet on the court's web site, so I've posted it here. I can't tell for sure, but I assume that it's a published decision.

Writing for herself and Judge Lodge, Chief Judge McClelland holds that to establish the offense of failure to pay just debts, the dishonorable conduct constituting the offense must occur after the debt becomes due and payable. Because the providence inquiry in Petty Officer Lindsey's case didn't establish such dishonorable conduct after his unauthorized government credit card debt became due and payable, the majority set aside the conviction despite the accused's guilty plea.

The majority analyzes the issue through hypothetical scenarios:

A person buys a car on credit, then incurs another debt knowing that current income, expenses and car payment will make it impossible to repay the new debt as scheduled. The debtor's plan is to complain of imaginary defects in the car and stop paying on the car loan for as long as possible without having the car repossessed, then recommence paying on the car loan and stop paying on the new debt, and continue to temporize, not meeting both debt obligations. The debtor implements the plan by falsely complaining about the car, but before the next payment is due, has a change of heart, sells the car and pays off the loan. The false complaint might have supported a charge of dishonorable failure to pay a debt if, in fact, the debtor had failed to make the payment when due and continued the scheme. However, because of the course change, the offense was not committed. Now consider the same hypothetical, but when the debtor sells the car, the proceeds are insufficient to fully repay the car loan, and the debtor does fail to pay the debt in full when due. Surely some further dishonorable conduct is required before the debtor may be found guilty of dishonorable failure to pay a debt.

The majority concluded: "In our view, dishonorableness occurring wholly before the debt is due should not be enough to criminalize nonpayment of a debt." Rather, "unconscionable delay, or some other fact supporting a finding of dishonorableness after payment was due, is essential." While the majority set aside this finding of guilty, it nevertheless affirmed the sentence, reasoning that evidence of the failure to pay just debt would have constituted proper aggravation to the affirmed conviction of violating an order concerning proper use of his government credit card.

Judge Kenney dissented from the portion of the majority's opinion setting aside the dishonorable failure to pay just debts conviction. Contrary to the majority, Judge Kenney concludes "that dishonorable conduct committed solely prior to the debt becoming due and payable can transform subsequent inaction or indifference into conduct fulfilling the elements of the offense." In support of this view, Judge Kenney offers "a slight variation of the hypothetical posed by the majority": "a failure to pay after the debt is due and payable would be dishonorable if the evidence reveals that the accused had no intention of ever paying the debt at the time the obligation was incurred, or prior to the debt becoming due, through deceit, evasion, false promises, or other distinctly culpable circumstances, created a situation that made it impossible for the accused to pay."