                         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(unpublished).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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United States v. Crafter, No. 06-0116/AF


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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United States v. Crafter, No. 06-0116/AF


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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United States v. Crafter, No. 06-0116/AF


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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United States v. Crafter, No. 06-0116/AF


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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United States v. Crafter, No. 06-0116/AF


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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