Conjugal visits and the Joint Ethics Reg

It's still early in the fiscal year, but FY 2007 has already generated some interesting fact patterns. United States v. Crafter, __ M.J. ___, No. 06-0116/AF (C.A.A.F. Nov. 27, 2006), involves a prison guard charged with violating the Joint Ethics Reg by accepting payment for helping an inmate arrange a conjugal visit. (Technically, it probably wasn’t a conjugal visit, since the visitor wasn’t married to the inmate. But, to again quote Roxy Music, “Dim the lights; you can guess the rest.”) Alas, in an effort to keep CAAFlog PG rated, I will forgo all of the obvious puns and cheap jokes.

The issue before CAAF was whether the specification failed to state an offense. The spec alleged that Crafter violated the Joint Ethics Reg by “wrongfully accepting currency for arranging for . . . 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 . . . Inmate [G].” [It isn’t immediately obvious why CAAF is so solicitous of Inmate [G]’s privacy. Crafter was convicted of accepting a bribe from Inmate [G] and yet the opinion seems to protect “G” as if he were a victim.] At trial, the defense didn’t move to dismiss the spec for failure to state an offense. But before the Air Force Court, the defense raised that issue for the first time. The Air Force Court rejected that argument in two sentences. See United States v. Crafter, No. ACM 35476, slip op. at 1-2 (A.F. Ct. Crim. App. Sept. 28, 2005) (unpublished), available at https://afcca.law.af.mil/content/afcca_opinions/cp/crafter-35476.pc2.pdf. CAAF took almost four pages to do the same.

The key question before CAAF was whether the spec’s allegation that Crafter “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.” CAAF noted that the word “for” could mean at least two things in this context, either: (1) that Inmate G essentially tipped Crafter after the event to thank him for his previously gratuitous assistance; or (2) that Inmate G bribed Crafter before the event to secure his assistance. The former reading would not state the offense of violating the Joint Ethics Reg while the latter would.

CAAF then set out the rule that while a facially deficient spec can’t be saved by the evidence presented at trial or a reg cited in the spec, an ambiguous or vague spec can. CAAF then noted that the spec referred to paragraph 5-400.a of the Joint Ethics Reg, which “prohibits DOD employees from accepting money to ‘influence’ official conduct or ‘induce’ unlawful conduct.” By citing that provision, CAAF reasoned, the spec clarified “that Appellant was charged with accepting money with the intent to influence or induce his actions.”

CAAF also concluded that the defense was on notice of the true nature of the charge. The trial defense counsel argued that the evidence of bribery was insufficient. And the military judge instructed the members, without defense objection, on the elements of bribery. Ergo Crafter loses.

CAAF’s holding seems clearly correct. If Crafter is remembered for anything other than is salacious facts, it will be for the dichotomy between fatally deficient specs (not salvagable by reference to a reg cited in the spec or evidence presented at trial) and an ambiguous or vague spec (salvagable by these means).

--Dwight Sullivan