United States v. Crafter ( 2006 )

UNITED STATES, Appellee
v.
John E. CRAFTER, Staff Sergeant
U.S. Air Force, Appellant
No. 06-0116
Crim. App. No. 35476
United States Court of Appeals for the Armed Forces
Argued October 17, 2006
Decided November 27, 2006
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Patrick E. Neighbors (argued); James M.
Winner, Esq., Lieutenant Colonel Mark R. Strickland, Major
Anniece Barber, and Major Sandra K. Whittington (on brief).
For Appellee: Major Carrie E. Wolf (argued); Colonel Gerald R.
Bruce, Lieutenant Colonel Robert V. Combs, and Major Jin-Hwa L.
Frazier (on brief).
Military Judge: Kevin P. Koehler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Crafter, No. 06-0116/AF
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of dereliction of
duty, disobeying a lawful regulation, and making a false
official statement, in violation of Articles 92 and 107, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 907 (2000).
The sentence adjudged by the court-martial and approved by the
convening authority included a bad-conduct discharge,
confinement for four months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. The Air
Force Court of Criminal Appeals affirmed. United States v.
Crafter, No. ACM 35476 (A.F. Ct. Crim. App. Sept. 28, 2005)
(unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER SPECIFICATION 2 OF CHARGE I FAILS TO
STATE AN OFFENSE BECAUSE APPELLANT’S CONDUCT
ALLEGED THEREIN DOES NOT VIOLATE THE SPECIFIED
REGULATION.
For the reasons set forth below, we affirm.
I. BACKGROUND
The granted issue asks whether Specification 2 of Charge 1,
as drafted, constituted a criminal offense. Appellant contends
that the specification fails to allege facts essential to prove
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a violation of the Department of Defense (DoD) regulation
concerning bribery.
The specification at issue concerns arrangements made by
Appellant, a prison guard, for a male prisoner and the
prisoner’s female friend to meet in a private room. The
specification alleged that Appellant:
[D]id, at or near Seymour Johnson Air Force Base, on
or about 9 May 9 2002, violate a lawful general
regulation, to wit: the Joint Ethics Regulation,
Department of Defense Directive 5500.7-R, Chapter 5,
paragraph 5-400(a), dated 30 August 1993, by
wrongfully accepting currency of some value for
arranging for Federal Prison Camp Inmate [G] to meet
in private with his friend [Ms. ADP] at a billeting
room at the Southern Pines Inn, a willful violation of
[his] lawful duties to supervise the work of the said
Federal Prison Camp Inmate [G].
The Joint Ethics Regulation cited in the specification
regulates the subject of bribery by DoD personnel and provides
in pertinent part that DoD personnel are:
prohibited from, directly or indirectly, giving, offering,
promising, demanding, seeking, receiving, accepting, or
agreeing to receive anything of value to influence any
official act, . . . [or] to induce committing or omitting
any act in violation of a lawful duty . . . .
DoD 5500.7-R, Joint Ethics Regulation, ch. 5, § 4, para. 5-400.a
(Aug. 30, 1993) [hereinafter JER para. 5-400.a].
At trial the prosecution introduced evidence of Appellant’s
pretrial admissions that Inmate G had offered him $100.00 to
obtain a room for the inmate’s meeting with Ms. ADP, and that he
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had received $60.00 for doing so. Appellant acknowledged that
after paying for the room he retained $36.00.
The defense expressly recognized that the subject of
bribery was at issue in the case. The defense did not move to
dismiss the specification for failure to state an offense, see
Rule for Courts-Martial (R.C.M.) 907(b)(1)(B), but instead
argued to the members of the court-martial panel that they
should not view the transaction between Inmate G and Appellant
as a bribe. The Government, in its closing statement, contended
that Appellant not only agreed to receive money in exchange for
arranging the private meeting between Inmate G and Ms. ADP, but
was motivated to arrange the meeting by his desire to make
money.
After giving counsel the opportunity to review and comment
on the proposed instructions, the military judge instructed the
members, without objection from counsel, that JER para. 5-400.a
“provides in part that all DoD employees are prohibited from
receiving or agreeing to receive anything of value to induce
committing or omitting any act in violation of a lawful duty.”
The military judge subsequently read the entire text of JER
para. 5-400.a into the record. The court-martial found
Appellant guilty of the specification at issue, among other
offenses. Defense counsel did not object to the sufficiency of
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the specification or to the instructions on that charge at any
time before or during trial.
Before the Court of Criminal Appeals, Appellant alleged for
the first time that the specification failed to state an
offense. The court concluded that the specification stated an
offense. Crafter, No. ACM 35476, slip op. at 1-2. The court
also held the evidence introduced at trial was legally and
factually sufficient to support Appellant’s conviction of
bribery in violation of the regulation. Id. at 2.
In the present appeal, the granted issue concerns only the
text of the specification -- i.e., whether the specification as
drafted alleged a criminal offense, not whether the evidence
introduced at trial was legally sufficient to prove a violation
of the regulation.
II. LEGAL SUFFICIENCY OF A SPECIFICATION
A specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as
to give the accused notice and protection against double
jeopardy. United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)
(citing R.C.M. 307(c)(3)). Failure to object does not waive the
issue of a specification’s legal sufficiency. R.C.M. 905(e).
If, however, a specification has not been challenged prior to
findings and sentence, the sufficiency of the specification may
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be sustained “if the necessary facts appear in any form or by
fair construction can be found within the terms of the
specification.” United States v. Mayo, 12 M.J. 286, 288 (C.M.A.
1982) (citations and quotation marks omitted). The question of
whether a specification states an offense is a question of law,
which this Court reviews de novo. See Dear, 40 M.J. at 197;
Mayo, 12 M.J. at 288.
III. DISCUSSION
The question raised by the present appeal is whether the
specification properly alleged all the elements of bribery in
violation of the regulation. In particular, we must determine
whether the declaration in the specification that Appellant
accepted money “for” arranging Inmate G’s private meeting with
Ms. ADP is sufficient to allege intent to influence or induce an
official act, an element of the offense at issue.
The word “for” has many meanings. See, e.g., Black’s Law
Dictionary 644 (6th ed. 1990) (defining “for” to encompass
multiple meanings, including “[t]he cause, motive or occasion of
an act . . . .”). In the factual context of this case, the word
“for” could refer to circumstances either predating or post-
dating an event. Accordingly, the specification in this case
was susceptible to at least two different meanings. Under one
interpretation, the word “for” could have been read to refer to
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an after-the-fact payment in a situation where Appellant
arranged the meeting without having in place any agreement or
understanding that he would be paid for his efforts. On this
reading, the specification would not have alleged intent to
receive money. Absent such an allegation, the specification
would have failed to allege the necessary element of intent to
“influence” or “induce” an official act.
Under an alternative interpretation, the word “for” could
have been understood to refer to a quid pro quo; that is, that
Appellant accepted money in exchange for arranging the meeting.
On this reading, the specification would have properly alleged
the element of intent to influence or induce his conduct in
arranging the meeting.
A specification that is susceptible to multiple meanings is
different from a specification that is facially deficient.
Although a facially deficient specification cannot be saved by
reference to proof at trial or to a rule referenced in the
specification, see Mayo, 12 M.J. at 288 (holding that elements
of offense cannot be implied from a declaration that conduct was
in violation of statute), it is appropriate to consider such
matters in the case of a specification susceptible to multiple
meanings. For example, in United States v. Russell, 47 M.J.
412, 413 (C.A.A.F. 1998), the appellant argued that
specifications alleging that he “wrongfully” transmitted and
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United States v. Crafter, No. 06-0116/AF
received child pornography, in violation of 18 U.S.C. § 2252(a)
(1994), were fatally deficient in that they failed to allege
that he knowingly possessed such materials. We held that the
term “wrongfully,” as used in the specifications, was broad
enough to imply guilty knowledge. Id. In addition, we
concluded that the appellant was on notice of the guilty
knowledge requirement since the specifications cited 18 U.S.C. §
2252(a), which requires that an accused act “knowingly,” and the
military judge instructed the members that they must find that
the accused acted knowingly. Id.In the present case, as in Russell, the specification at
issue cites the rule allegedly violated by Appellant: JER para.
5-400.a, which prohibits DoD employees from accepting money to
“influence” official conduct or “induce” unlawful conduct. The
citation to JER para. 5-400.a clarifies that Appellant was
charged with accepting money with the intent to influence or
induce his actions. See Russell, 47 M.J. at 413.
Moreover, here, as in Russell, the record demonstrates that
Appellant was on notice of the charge. First, defense counsel
affirmatively addressed the element of whether Appellant had the
intent to induce or influence an official act, arguing to the
panel that the evidence was insufficient. Second, the military
judge instructed the members -- without defense objection -- on
the elements of the offense of bribery, including the
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requirement that Appellant acted with intent to influence or
induce. These two factors, taken together, underscore that at
trial the defense was not misled and did not regard the
specification as fatally deficient.
We have long recognized that:
[t]he true test of the sufficiency of [a
specification] is not whether it could have been made
more definite and certain, but whether it contains the
elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be
prepared to meet; and, in case any other proceedings
are taken against him for a similar offense, whether
the record shows with accuracy to what extent he may
plead a former acquittal or conviction.
United States v. Sell, 3 C.M.A. 202, 206, 11 C.M.R. 202,
206 (1953). Although Specification 2 of Charge 1, charging
Appellant with bribery under JER para. 5-400.a, could have
been drafted with greater precision, the circumstances of
this case demonstrate that the necessary facts can be found
under a fair construction of the specification. See Mayo,
12 M.J. at 288. Because Appellant was on notice of the
charge against him, and the record shows that he was tried
and convicted of bribery, the specification was not fatally
defective.
IV. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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