ISCR Case 08-09941.h1

Case Headnote

ISCR Case No. 08-09941.h1

deniedJul 1, 2008· Hon. Thomas M. Crean· hearing

Summary

A 56-year-old production test supervisor for a defense contractor was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) due to two incidents of criminal sexual behavior. The first incident occurred in January 2004, when the applicant exposed himself and masturbated in front of an undercover police officer in a park. The second incident, in December 2006, involved the applicant masturbating nude in his kitchen with open doors, visible to a passing juvenile.

For the 2006 incident, the applicant was arrested for lewd and lascivious acts in the presence of a minor, a felony, but later pled guilty to a third-degree child abuse misdemeanor. He was sentenced to five years probation and ordered to attend sex offender therapy group counseling.

Despite the applicant's admissions and some evidence of rehabilitation, the judge determined that the security concerns were not sufficiently mitigated. The denial was based on the applicant's ongoing probation and the recent nature of the offenses, indicating insufficient evidence that the behavior would not recur.

Why the Applicant Was Denied

The applicant admitted to two incidents of criminal sexual behavior, which raised significant security concerns.
The applicant is currently on probation for his offenses, indicating ongoing risk.
The judge found that the applicant did not provide sufficient evidence of successful rehabilitation or that the behavior would not recur.

Conditions Referenced

Disqualifying

AG ¶ 13(a)raisedSexual Behavior of a Criminal Nature
AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(d)raisedIndividual Is Currently on Parole or Probation

Mitigating

AG ¶ 14(b)rejectedThe Sexual Behavior Happened so Long Ago, so Infrequently, or Under Such Unusual CircumstancesThe incidents occurred within a recent timeframe and the applicant is still on probation.
AG ¶ 32(a)rejectedSo Much Time Has Elapsed Since the Criminal Behavior HappenedThe applicant's offenses occurred within the last few years, and he has not demonstrated sufficient rehabilitation.
AG ¶ 32(d)rejectedEvidence of Successful RehabilitationWhile the applicant completed a treatment program, it was too soon to determine successful rehabilitation.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedDec 4, 2009
Answer filedDec 17, 2009
Hearing heldMar 11, 2010
Decision dateApr 27, 2010

Cite For

Security Concerns Related to Criminal Sexual Behavior Under Guideline D and J
The Impact of Ongoing Probation on Security Clearance Eligibility
The Importance of Demonstrating Successful Rehabilitation for Mitigating Security Concerns

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

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	The applicant was arrested for exposure of his sexual organs in January 2004. An undercover police officer's report states that the officer was on patrol in a local park. While near a picnic grove, the applicant walked up to him, with his penis exposed, and started to masturbate. He asked the officer 'let's see what you got.' The officer identified himself and arrested the applicant. (SOR ¶ 1.a)	Against Applicant	Criminal Sexual Conduct	Admitted	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted	—	—
2.a	A neighborhood juvenile was passing by the applicant's house on the afternoon of December 24, 2006. The garage door and the door from the garage to the kitchen were open. The juvenile observed the applicant standing in his kitchen nude and facing him. The applicant was masturbating his erect penis. The juvenile went home and reported what he had seen to his parents. His mother and another neighbor drove by the applicant's house and observed the garage door and the kitchen doors open and the applicant standing nude in the kitchen. The juvenile's parents then notified the police. The applicant was arrested for lewd and lascivious acts in the presence of a minor, a felony, on December 27, 2006. The applicant pled guilty to a third degree child abuse misdemeanor, and was sentenced to five years probation, and to attend sex offender therapy group counseling. (SOR ¶ 1.b)	Against Applicant	Criminal Sexual Conduct	Admitted	(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted	—	—

Allegation

Finding

Type

Response

Disqualifying (¶13)

Mitigating applied (¶14)

Mitigation

2.a

The applicant was arrested for exposure of his sexual organs in January 2004. An undercover police officer's report states that the officer was on patrol in a local park. While near a picnic grove, the applicant walked up to him, with his penis exposed, and started to masturbate. He asked the officer 'let's see what you got.' The officer identified himself and arrested the applicant. (SOR ¶ 1.a)

Against Applicant

Criminal Sexual Conduct

Admitted

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

—

2.a

A neighborhood juvenile was passing by the applicant's house on the afternoon of December 24, 2006. The garage door and the door from the garage to the kitchen were open. The juvenile observed the applicant standing in his kitchen nude and facing him. The applicant was masturbating his erect penis. The juvenile went home and reported what he had seen to his parents. His mother and another neighbor drove by the applicant's house and observed the garage door and the kitchen doors open and the applicant standing nude in the kitchen. The juvenile's parents then notified the police. The applicant was arrested for lewd and lascivious acts in the presence of a minor, a felony, on December 27, 2006. The applicant pled guilty to a third degree child abuse misdemeanor, and was sentenced to five years probation, and to attend sex offender therapy group counseling. (SOR ¶ 1.b)

Against Applicant

Criminal Sexual Conduct

Admitted

(a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested for exposure of his sexual organs in January 2004. An undercover police officer's report states that the officer was on patrol in a local park. While near a picnic grove, the Applicant walked up to him, with his penis exposed, and started to masturbate. He asked the officer "let's see what you got." The officer identified himself and arrested Applicant. (Gov. Ex 4, Arrest report, dated January 13, 2004)	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	A neighborhood juvenile was passing by Applicant's house on the afternoon of December 24, 2006. The garage door and the door from the garage to the kitchen were open. The juvenile observed the Applicant standing in his kitchen nude and facing him. Applicant was masturbating his erect penis. The juvenile went home and reported what he had seen to his parents. His mother and another neighbor drove by Applicant's house and observed the garage door and the kitchen doors open and Applicant standing nude in the kitchen. The juvenile's parents then notified the police. Applicant was not at home when the police came to his house. They arrested him for lewd and lascivious acts in the presence of a minor, a felony, on December 27, 2006. Applicant pled guilty to a third degree child abuse misdemeanor, and was sentenced to five years probation, and to attend sex offender therapy group counseling. (Gov. Ex. 5, Police Incident Report, dated December 27, 2006; Gov. Ex. 6, Statute, Lewdness, Indecent Exposure; Gov. Ex. 7, Statute, Abuse of Children)	Against Applicant	Sexual Offense Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (d) violation of parole/probation or failure to complete a court program	—	—
1.c	Applicant's admissions were considered in my findings of fact. Applicant admits and the information clearly establishes that he committed the criminal act of indecent exposure and the criminal act of sexual action before a child by exposing himself to a police officer and being nude while masturbating in his kitchen with the outside doors open. (AG ¶ 12) Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulation. (AG ¶ 30)	Against Applicant	Sexual Offense Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was arrested for exposure of his sexual organs in January 2004. An undercover police officer's report states that the officer was on patrol in a local park. While near a picnic grove, the Applicant walked up to him, with his penis exposed, and started to masturbate. He asked the officer "let's see what you got." The officer identified himself and arrested Applicant. (Gov. Ex 4, Arrest report, dated January 13, 2004)

Against Applicant

Sexual Offense Criminal

Conduct No Charge

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

—

1.b

A neighborhood juvenile was passing by Applicant's house on the afternoon of December 24, 2006. The garage door and the door from the garage to the kitchen were open. The juvenile observed the Applicant standing in his kitchen nude and facing him. Applicant was masturbating his erect penis. The juvenile went home and reported what he had seen to his parents. His mother and another neighbor drove by Applicant's house and observed the garage door and the kitchen doors open and Applicant standing nude in the kitchen. The juvenile's parents then notified the police. Applicant was not at home when the police came to his house. They arrested him for lewd and lascivious acts in the presence of a minor, a felony, on December 27, 2006. Applicant pled guilty to a third degree child abuse misdemeanor, and was sentenced to five years probation, and to attend sex offender therapy group counseling. (Gov. Ex. 5, Police Incident Report, dated December 27, 2006; Gov. Ex. 6, Statute, Lewdness, Indecent Exposure; Gov. Ex. 7, Statute, Abuse of Children)

Against Applicant

Sexual Offense Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(d) violation of parole/probation or failure to complete a court program

—

1.c

Applicant's admissions were considered in my findings of fact. Applicant admits and the information clearly establishes that he committed the criminal act of indecent exposure and the criminal act of sexual action before a child by exposing himself to a police officer and being nude while masturbating in his kitchen with the outside doors open. (AG ¶ 12) Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulation. (AG ¶ 30)

Against Applicant

Sexual Offense Criminal

Conduct No Charge

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON ANALYSIS

FORMAL FINDINGS

CONCLUSION