ISCR Case 10-00530.h1

Case Headnote

ISCR Case No. 10-00530.h1

deniedJul 25, 2011· Hon. James F. Duffy· hearing

Summary

A 24-year-old commercial diver was denied a security clearance under Guideline J (Criminal Conduct) due to a history of criminal offenses. The primary concerns stemmed from his involvement in two burglaries of a commercial welding business in 2006. During the first incident, he entered the building and stole a plasma cutting torch. In the second, he participated in stealing a dirt bike, golf cart, and all-terrain vehicle. He was later apprehended by the business owner and subsequently cooperated with police, leading to a dropped burglary charge after an agreement not to pursue kidnapping charges against the owner.

Further criminal conduct included a January 2008 arrest for operating a stolen motorcycle without a license and attaching an unassigned tag. While the grand theft charge was dropped, he pled no contest to the misdemeanor charges of operating a motorcycle without a license and attaching an unassigned registration plate, receiving community service, a fine, and probation, which he successfully completed.

In 2009, he was arrested and charged with driving with a suspended license and operating an unsafe vehicle. He pled no contest to the charge of no valid driver’s license. The judge found his claim of believing his license was reinstated lacked credibility. Ultimately, the applicant failed to mitigate the security concerns raised by his repeated criminal conduct, resulting in the denial of his security clearance.

Why the Applicant Was Denied

The applicant committed two burglaries in 2006, which raised significant security concerns.
He engaged in further criminal conduct, including operating a motorcycle without a license and driving with a suspended license.
The applicant's claims of misunderstanding regarding his driver's license status were not credible.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAllegations or Admissions of Criminal Conduct

Mitigating

AG ¶ 32(a)rejectedTime Elapsed Since Criminal BehaviorAlthough the applicant committed the burglaries five years ago, he engaged in further criminal conduct since then.
AG ¶ 32(c)appliedEvidence That the Person Did Not Commit the OffenseThe judge found the applicant did not commit grand theft motor vehicle.
AG ¶ 32(d)rejectedEvidence of Successful RehabilitationThe applicant's continued criminal behavior undermined claims of rehabilitation.

Key Rule Quoted

“Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.”
AG ¶ 30

Procedural Posture

SOR issuedOct 28, 2010
Answer filedNov 16, 2010Applicant initially did not request a hearing.
Hearing heldApr 26, 2011
Decision dateJul 25, 2011

Cite For

Disqualifying Conditions Under Guideline J Due to Criminal Conduct
Credibility Assessments in Evaluating Claims of Misunderstanding Regarding Legal Status
The Impact of Ongoing Criminal Behavior on Claims of Rehabilitation

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

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 2006, Applicant and four or five other individuals twice burglarized a commercial welding business. None of the burglars were employed at that business. None of them were armed with weapons during the burglaries. Both burglaries occurred in the evening. The business had a six-foot chain link fence surrounding two structures. The first break-in occurred on about March 18, 2006. A section of the fence was pulled down and a crowbar was used to pry open the front door of the building. Applicant was not involved in prying open the door, but he entered the building. On this occasion, Applicant stole a plasma cutting torch. Another burglar stole an air compressor and others took various tools, a 12-pack of beer, and $2 from the cash box. Applicant took the plasma cutting torch to a friend’s house where it remained until turned over to the police. The second break-in took place on about April 9, 2006. The fence was cut completely and rolled back. By the time Applicant arrived at the detached garage, the break-in had already occurred. They entered the garage. During this incident, Applicant and the other burglars stole a dirt bike, golf cart, and all-terrain vehicle (ATV). The golf cart and ATV were driven about three or four miles from the welding business. The dirt bike was loaded onto the back of a pickup truck. The golf cart and dirt bike were hidden in the woods near one of the burglar’s house. On the afternoon following the second burglary, Applicant and another burglar went to the hiding place in the woods and were apprehended at gunpoint by the owner and an employee of the welding business. The owner and employee had followed the tracks of the vehicles to the hiding place, and they hid in the woods waiting for the burglars to return. They held Applicant and other burglar for 9 to 12 hours and, at some point, transported them back to the welding business in the trunk of a car. Applicant and other burglar were cooperative with the owner, but claimed they did not steal the property. Applicant stated the owner and employee threatening them while they were being held. The owner photocopied Applicant’s and other burglar’s driver’s licenses and released them. Within a couple of days, the police contacted Applicant to question him about the burglaries. He cooperated with the police. He was arrested and charged with burglary of a structure, a felony. Eventually, Applicant entered into an agreement that the burglary charge against him would be dropped if he did not pursue kidnapping charges against the owner and employee of the welding business. He paid some fees and the burglary charge was dropped.	Against Applicant	Trespassing or Burglary	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	In January 2008, the police stopped Applicant on the motorcycle for not wearing protective eyewear. When he was stopped, his face shield was retracted in his motorcycle helmet. During the traffic stop, the police determined the motorcycle was stolen. Applicant was arrested and charged with grand theft motor vehicle, no driver’s license for motorcycle operation, and attaching tag/sticker not assigned. The grand theft charge was later dropped. The prosecutor’s Announcement of No Information for that grand theft charge stated, 'The actual theft of the vehicle occurred too far in the past to prove he had knowing possession of a stolen vehicle.' In February 2008, Applicant pled no contest to the amended charges of operating a motorcycle without license and attaching a registration license plate not assigned. Both of those offenses were misdemeanors. For these offenses, he was awarded 30 hours of community service, fined $295, and six months’ probation for each offense that ran concurrently. He successfully completed his probation.	Against Applicant	Traffic Offense Pattern	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.c	In 2009, Applicant was arrested and charged with driving a vehicle while his license was suspended and driving an unsafe vehicle. Applicant claimed he thought his driver’s license was reinstated before his arrest because the toll violations were paid. I did not find that claim credible. Although he presented documents concerning the payment of the toll violations, none of them confirmed that the toll violations were paid before his arrest. Furthermore, even if the toll violations were paid before his arrest, such action would not have resulted in reinstatement of his driver’s license. Action by the department of motor vehicles – instead of the state toll agency – was needed to reinstate his license. He pled no contest to the charge of no valid driver’s license. Substantial evidence exists to establish he committed that offense.	Against Applicant	Probation or Court Order Violation	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

In 2006, Applicant and four or five other individuals twice burglarized a commercial welding business. None of the burglars were employed at that business. None of them were armed with weapons during the burglaries. Both burglaries occurred in the evening. The business had a six-foot chain link fence surrounding two structures. The first break-in occurred on about March 18, 2006. A section of the fence was pulled down and a crowbar was used to pry open the front door of the building. Applicant was not involved in prying open the door, but he entered the building. On this occasion, Applicant stole a plasma cutting torch. Another burglar stole an air compressor and others took various tools, a 12-pack of beer, and $2 from the cash box. Applicant took the plasma cutting torch to a friend’s house where it remained until turned over to the police. The second break-in took place on about April 9, 2006. The fence was cut completely and rolled back. By the time Applicant arrived at the detached garage, the break-in had already occurred. They entered the garage. During this incident, Applicant and the other burglars stole a dirt bike, golf cart, and all-terrain vehicle (ATV). The golf cart and ATV were driven about three or four miles from the welding business. The dirt bike was loaded onto the back of a pickup truck. The golf cart and dirt bike were hidden in the woods near one of the burglar’s house. On the afternoon following the second burglary, Applicant and another burglar went to the hiding place in the woods and were apprehended at gunpoint by the owner and an employee of the welding business. The owner and employee had followed the tracks of the vehicles to the hiding place, and they hid in the woods waiting for the burglars to return. They held Applicant and other burglar for 9 to 12 hours and, at some point, transported them back to the welding business in the trunk of a car. Applicant and other burglar were cooperative with the owner, but claimed they did not steal the property. Applicant stated the owner and employee threatening them while they were being held. The owner photocopied Applicant’s and other burglar’s driver’s licenses and released them. Within a couple of days, the police contacted Applicant to question him about the burglaries. He cooperated with the police. He was arrested and charged with burglary of a structure, a felony. Eventually, Applicant entered into an agreement that the burglary charge against him would be dropped if he did not pursue kidnapping charges against the owner and employee of the welding business. He paid some fees and the burglary charge was dropped.

Against Applicant

Trespassing or Burglary

Conduct No Charge

Denied

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

(c) currently on parole or probation

—

1.b

In January 2008, the police stopped Applicant on the motorcycle for not wearing protective eyewear. When he was stopped, his face shield was retracted in his motorcycle helmet. During the traffic stop, the police determined the motorcycle was stolen. Applicant was arrested and charged with grand theft motor vehicle, no driver’s license for motorcycle operation, and attaching tag/sticker not assigned. The grand theft charge was later dropped. The prosecutor’s Announcement of No Information for that grand theft charge stated, 'The actual theft of the vehicle occurred too far in the past to prove he had knowing possession of a stolen vehicle.' In February 2008, Applicant pled no contest to the amended charges of operating a motorcycle without license and attaching a registration license plate not assigned. Both of those offenses were misdemeanors. For these offenses, he was awarded 30 hours of community service, fined $295, and six months’ probation for each offense that ran concurrently. He successfully completed his probation.

Against Applicant

Traffic Offense Pattern

Convicted

Denied

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

(c) currently on parole or probation

—

1.c

In 2009, Applicant was arrested and charged with driving a vehicle while his license was suspended and driving an unsafe vehicle. Applicant claimed he thought his driver’s license was reinstated before his arrest because the toll violations were paid. I did not find that claim credible. Although he presented documents concerning the payment of the toll violations, none of them confirmed that the toll violations were paid before his arrest. Furthermore, even if the toll violations were paid before his arrest, such action would not have resulted in reinstatement of his driver’s license. Action by the department of motor vehicles – instead of the state toll agency – was needed to reinstate his license. He pled no contest to the charge of no valid driver’s license. Substantial evidence exists to establish he committed that offense.

Against Applicant

Probation or Court Order Violation

Convicted

Denied

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

(c) currently on parole or probation

—

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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

PROCEDURAL RULINGS

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

DECISION

FOOTNOTES