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ISCR Case 16-00427 — CASE

ISCR Case 16-00427denied

Case Headnote

ISCR Case No. 16-00427

deniedApr 20, 2017· Hon. Edward W. Loughran· hearing

Summary

A 35-year-old male applicant was denied eligibility for a Common Access Card (CAC) under Guideline J (Criminal Conduct) due to a history of serious criminal allegations and a lack of mitigating evidence.

The applicant's criminal record included an arrest in February 2000 for attempted burglary of a vehicle and evading arrest, followed by a theft charge in March 2000, both related to breaking into cars. He admitted to these offenses. More significantly, in March 2004, the applicant was arrested and charged with capital murder, held on a $1 million bail, and released four months later on reduced bail. In 2009, the District Attorney declined prosecution due to insufficient evidence.

Despite the lack of conviction, the judge found substantial evidence suggesting the applicant's involvement in the death of his then-girlfriend's eight-month-old child. This child had sustained severe, force-related fractures two and a half months prior to death, injuries inconsistent with the girlfriend's explanation of a fall. The judge concluded that the applicant's criminal history, coupled with the unmitigated concerns surrounding the child's death, demonstrated a lack of reliability and trustworthiness, leading to the denial of his CAC eligibility.

Why the Applicant Was Denied

The applicant's criminal history included serious offenses that raised questions about his reliability and trustworthiness.
The judge found substantial evidence suggesting the applicant's involvement in the death of a child, despite the absence of a conviction.
The applicant failed to provide sufficient evidence of rehabilitation or mitigating circumstances.

Conditions Referenced

Disqualifying

AG ¶ 2.araisedCriminal or Dishonest Conduct
AG ¶ 2.braisedSerious Crime or Multiple Lesser Offenses
AG ¶ 2.craisedCircumstances Relevant to Unacceptable Risk

Key Rule Quoted

“A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk.”

Procedural Posture

SOR issuedMay 16, 2016
Answer filedAug 17, 2016
Hearing heldJan 24, 2017
Decision dateApr 20, 2017

Cite For

Denial of CAC Eligibility Due to Serious Criminal History Under Guideline J
Substantial Evidence Standard in Criminal Conduct Cases
Lack of Mitigating Circumstances in Cases Involving Serious Offenses

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations of criminal or dishonest conduct, determining that the applicant's history raised unacceptable risks for CAC eligibility. The applicant's criminal history included serious charges, and the judge concluded that the applicant did not mitigate the concerns raised.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested in February 2000 and charged with attempted burglary of a vehicle and evading arrest. He was 18 years old at the time. In March 2000, he was arrested and charged with theft. The charges from February and March 2000 are related as they involve Applicant breaking into, or attempting to break into, two cars on the same day in February 2000. Applicant does not deny committing the offenses.	Against Applicant	Theft or Larceny	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	Applicant was arrested in March 2004 and charged with capital murder. He was held on $1 million bail. He was released about four months later on a reduced bail. In 2009, the District Attorney notified Applicant through his attorney: The [County] District Attorney’s Office had declined prosecution of [Applicant] on the capital murder charge he has pending. The case has insufficient evidence to indict and/or prosecute [Applicant].	Against Applicant	Homicide	Dismissed or Nolle Prossed	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	The deceased was the eight-month-old child of Applicant’s girlfriend at the time. Applicant was not the father of the child, but his girlfriend was pregnant with Applicant’s oldest child. In December 2003, about two and a half months before the child’s death, the child’s right femur and top of the right tibia were fractured, consistent with spiral fractures. The treating doctor indicated that the injuries would have required a lot of force, like a twist or a direct blow. The girlfriend reported that four days before the child was treated for her fractures, the child was playing with a baby mobile at the girlfriend’s mother’s house when the child fell off a couch. The police took pictures of the couch and the mobile, which was at Applicant’s home. No charges were filed.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

Descriptive standardized rendering of a decided public case (Guideline J). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) CAC Case No. 16-00427 ) Applicant for CAC Eligibility )

For Government: Bryan J. Olmos, Esq., Department Counsel For Applicant: Pro se

04/20/2017 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant did not mitigate Common Access Card (CAC) credentialing concerns raised under the criminal or dishonest conduct supplemental adjudicative standards. CAC eligibility is denied.

Statement of the Case

On May 16, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing credentialing concerns for CAC eligibility pursuant to Homeland Security Presidential Directive – 12 (HSPD-12). The DOD was unable to find that granting Applicant CAC eligibility did not pose an unacceptable risk. The action was taken under the Adjudicative Standards found in DOD Instruction (DODI) 5200.46, DOD Investigative and Adjudicative Guidelines for Issuing the CAC, dated September 9, 2014, and the procedures set out in Enclosure 3 of DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). The concerns raised under the Adjudicative Standards of DODI 5200.46 are criminal or dishonest conduct.

Applicant responded to the SOR on August 17, 2016, and requested a hearing before an administrative judge. The case was assigned to me on December 1, 2016. On December 8, 2016, Department Counsel amended SOR ¶ 1.cby deleting the language “of a Peace Officer or Fireman (Capital Felony).” The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 20, 2016, scheduling the hearing for January 24, 2017. The hearing was convened as scheduled. Government Exhibits (GE) 1 through 6 were admitted in evidence without objection. Applicant testified, and submitted Applicant’s Exhibit (AE) A, which was admitted without objection. DOHA received the hearing transcript (Tr.) on February 3, 2017.

FINDINGS OF FACT

Applicant is 35 years old. He has worked for his current employer since 2011. He attended community college, but he did not earn a degree. He is married with a child from a previous relationship (discussed below), two children with his wife, and his wife was pregnant as of the date of the hearing.1

Applicant was arrested in February 2000 and charged with attempted burglary of a vehicle and evading arrest. He was 18 years old at the time. In March 2000, he was arrested and charged with theft. The charges from February and March 2000 are related as they involve Applicant breaking into, or attempting to beak into, two cars on the same day in February 2000. Applicant does not deny committing the offenses.2

Applicant was arrested in March 2004 and charged with capital murder. He was held on $1 million bail. He was released about four months later on a reduced bail.3 In 2009, the District Attorney notified Applicant through his attorney:

The [County] District Attorney’s Office had declined prosecution of [Applicant] on the capital murder charge he has pending. The case has insufficient evidence to indict and/or prosecute [Applicant].4

The deceased was the eight-month-old child of Applicant’s girlfriend at the time. Applicant was not the father of the child, but his girlfriend was pregnant with Applicant’s oldest child. In December 2003, about two and a half months before the child’s death, the child’s right femur and top of the right tibia were fractured, consistent with spiral fractures. The treating doctor indicated that the injuries would have required a lot of force, like a twist or a direct blow. The girlfriend reported that four days before the child was treated for her fractures, the child was playing with a baby mobile at the girlfriend’s mother’s house when the child fell off a couch. The police took pictures of the couch and the mobile, which was at Applicant’s home. No charges were filed. In February 2003, the girlfriend was arrested for an unrelated felony charge of possession of a controlled substance.5

Applicant went to his girlfriend’s mother’s house after work for a family get together on the day of the child’s death. Several people in the house were playing cards and involved in other activities. Individuals at the house reported that the child seemed happy and normal, except she cried for a period while Applicant held her.6

Applicant left the house with the child between about 7:00 and 7:30 p.m., and went to a friend’s house to drop off a DVD he had borrowed. He then went to his house to pick up some items for the get together. He stated that he fed the child a “chewed up” Girl Scout cookie at his house, when the child started choking. He stated that he lifted the child’s arm and patted her on the back until she stopped choking. The police detective who interviewed Applicant at the hospital wrote that Applicant stated the child spit out the cookie. Applicant’s written statement does not state that the child spit out the cookie, it simply states that “[s]he stopped choking.” Applicant testified that the child did not spit out the cookie, that she either swallowed part of it or had only sucked on the cookie. The police later searched the house and discovered an opened box of Girl Scout cookies on the kitchen counter. There was a single partially eaten cookie beside the box of cookies. The detective “searched the kitchen area, but did not find any evidence that the child ‘spit-up’ the cookie.”7

Applicant returned with the child to his girlfriend’s mother’s house. While there he and the mother changed the child’s diaper. He stated that the child was not out of his sight after he returned to the house, and he did not notice anything wrong with the child as they changed her diaper. When Applicant, the girlfriend, and the child were leaving the house, the child had a seizure. They took the child to the hospital. It was noted that the child had bruising throughout the body, abrasions, what appeared to be human bite- marks on the right arm and chest, and massive bleeding in the head. The doctor opined that the injuries were caused by the child being shaken excessively. The child died five days later.8

The autopsy revealed that the child “died as the result of blunt force injuries.” The blunt force injuries were:

a. Contusions of the head, trunk, and extremities. b. Crusted abrasions of the trunk. c. Subscapular hemorrhages of the right frontal and left frontolateral areas. d. Subdural and subarachnoid hemorrhages. e. Retinal and perioptic hemorrhages. f. Diffuse axonal injury. g. Healing left rib fractures. h. Healing fracture of the right femur. i. Healing fracture of the right tibia and fibula. j. Deep muscular hemorrhages surrounding the right humerus.

The autopsy also revealed:

[A] 2 inch by 1/8 inch crescentic contusion on the right upper chest which is consistent with a bite mark. A ¾ inch by ¾ inch contusion is on the left upper abdomen. A ½ inch by 3/8 inch, roughly crescentic contusion is on the right upper abdomen. A ¾ inch by 1/16 inch crusted abrasion is on the left posterior shoulder. A 3/16 inch by less than 1/6 inch crusted abrasion is on the left upper back. A 1/4 inch by 1/4 inch crusted abrasion is on the right posterior shoulder. A 3/8 inch by 1/4 inch crusted abrasion is on the right midback. A 1/2 inch by 1/4 inch crusted abrasion is on the right midback.

A 1-1/8 inch by 7/8 inch irregular contusion is on the right forearm. A 1 inch by 3/4 inch contusion is on the right forearm. A 1-1/4 inch by 7/8 inch contusion is on the right thigh.9

After the autopsy, the pathologist opined to the police detective that the child’s injuries were most likely inflicted a short time before she was taken to the hospital, but an exact dating of the injuries would require further testing.10

A forensic analysis was conducted of the bite-marks on the child’s arm and chest and compared them with Applicant’s teeth. The forensic dentist who conducted the analysis concluded:

1. The pattern injury has all the characteristics seen in a typical single arch bite-mark. 2. It is possible that [Applicant] could have generated the bite-mark but there is insufficient individual characteristics in the bite-mark itself to say to any degree of medical certainty that [Applicant] was the only person who could have generated this bite-mark.

Note: The definition as stated in the guidelines used by the American Board of Forensic Odontology describes the use of “possible” when:

Suspect could have done it; may or may not have. Teeth like the suspect’s could be expected to create a mark like the one examined but so could other dentitions. The criterion for this term is explained by the ABFO as: Criteria: there is a nonspecific similarity or a similarity of class characteristics; match points are general and/or few, and there is no incompatible inconsistencies that would serve to exclude.11

Applicant denied killing the child. He stated that he believes his ex-girlfriend killed her child or she knows who did. Nobody else was ever charged with the crime. He testified that he could not have broken the child’s ribs because the autopsy report showed that the fractured ribs had been healing for “over six to eight weeks” and that was “before he was even in the picture.” That testimony is contradicted by the police report of the leg fractures, which shows that in December 2003, about two and a half months before the child’s death, the child’s mobile was at Applicant’s home. He later admitted that he was involved with the mother when the fractures occurred. Applicant and his ex-girlfriend did not remain together after he was arrested. Their child was placed in Applicant’s mother’s custody. Applicant went to court in 2014 and obtained joint custody of the child.12

Applicant has had steady employment since 2011. He has not been arrested for any offense since the 2004 arrest for murder.13

POLICIES

Every CAC eligibility decision must be a fair and impartial overall commonsense decision based on all available evidence, both favorable and unfavorable. The specific issues raised are listed in DODI 5200.46, Enclosure 4, Appendix 1, Basic Adjudicative Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain CAC eligibility.

Factors to be applied consistently to all information available include: (1) the nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) contributing external conditions; and (6) the absence or presence of efforts towards rehabilitation. (DODI 5200.46, Enclosure 4, ¶ 1)

ANALYSIS

Criminal or Dishonest Conduct

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2 provides:

A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk.

a. An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.blists several conditions that could raise a CAC concern and may be disqualifying. The following are potentially applicable in this case:

(1) A single serious crime or multiple lesser offenses which put the safety of people at risk or threaten the protection of property or information. A person’s convictions for burglary may indicate that granting a CAC poses an unacceptable risk to the U.S. Government’s physical assets and to employees’ personal property on a U.S. Government facility;

(2) Charges or admission of criminal conduct relating to the safety of people and proper protection of property or information systems, regardless of whether the person was formally charged, formally prosecuted, or convicted; and

(3) Dishonest acts (e.g., theft, accepting bribes, falsifying claims, perjury, forgery, or attempting to obtain identity documentation without proper authorization).

Applicant’s criminal history is sufficient to establish all of the above disqualifying conditions.

DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.clists circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk. The following may be relevant:

(1) The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur; (2) Charges were dismissed or evidence was provided that the person did not commit the offense and details and reasons support his or her innocence; and

(4) Evidence has been supplied of successful rehabilitation, including but not limited to remorse or restitution, job training or higher education, good employment record, constructive community involvement, or passage of time without recurrence.

Applicant admittedly committed the car-burglary offenses. He denied killing the baby in 2004. The state had sufficient evidence to establish a prima facie case against him, but insufficient evidence to continue the case. Criminal cases have the beyond a reasonable doubt standard, and it is possible that someone else killed the baby. Nonetheless, I find there is substantial evidence14 that Applicant killed the baby. He has not convinced me of his innocence. I base that on all the evidence, including:

 Applicant was the only one alone with the baby after he left the house.  People at the house reported that the child seemed happy and normal before leaving with Applicant, except she cried for a period while Applicant held her.  The forensic dentist could not positively identify Applicant as leaving the bite- marks, but “[t]eeth like the [Applicant’s] could be expected to create a mark like the one examined but so could other dentitions.”  Applicant’s inconsistent statements. (e.g., when he stated that he could not have fractured the child’s ribs because he was not with the ex-girlfriend at the time, and whether the child spit out the cookie.)

The above mitigating circumstances are not established. I also considered the factors in DODI 5200.46, Enclosure 4, ¶ 1.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Criminal or Dishonest Conduct: Against Applicant

Subparagraphs 1.a-1.c: Against Applicant

14 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” ISCR Case No. 10-09035 at

CONCLUSION

In light of all of the circumstances presented by the record in this case, granting Applicant CAC eligibility poses an unacceptable risk. CAC eligibility is denied.

_______________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Tr. at 14, 62, 66, 72-73; GE 1. 2 Tr. at 20; Applicant’s response to SOR; GE 3, 5, 6. 3 Tr. at 13, 59; GE 4-6. 4 AE A. 5 Tr. at 14-17, 22, 62; GE 4. 6 Tr. at 15, 18-19, 25-26, 69-70; GE 4. 7 Tr. at 15, 29-47, 71-72; GE 4. 8 Tr. at 15, 47-54, 58-62; GE 4. 9 GE 4. 10 GE 4. 11 GE 4. 12 Tr. at 13-15, 19-22, 62-69; Applicant’s response to SOR; GE 4. 13 Tr. at 72-73; GE 1. 5 (App. Bd. Jun. 13, 2014) (citing Directive ¶¶ E3.1.14; E3.1.32.1). “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994); ISCR Case No. 04-07187 at 5 (App. Bd. Nov. 17, 2006).