Case No. VSO-0138, 26 DOE ¶ 82,786 (H.O. Gray July 25, 1997)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX's.

July 25, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: February 28, 1997

Case Number: VSO-0138

This Opinion addresses the eligibility of XXXXXXXX (the Individual) for access authorization. The regulations governing the Individual's eligibility are found at 10 C.F.R., Part 710. In light of these regulations and the testimony discussed below, it is my opinion that the Individual's access authorization should be restored.

Background

Approximately seven months before this hearing, the Individual entered a plea of no contest to a single count of unlawful sexual intercourse with a minor.(1)As a result of his plea, he was informed in a Notification Letter from the Department of Energy (the Department) that his access authorization was suspended.(2) According to the Notification Letter, the plea raises a security concern that creates a substantial doubt about his continued eligibility for access authorization. The security concern is that the Individual:

engaged in … unusual conduct or is subject to any circumstances which tend to show that [he] is not honest, reliable, or trustworthy; or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security. Such conduct or circumstances include … criminal behavior.

10 C.F.R. § 710.8(l).

The Individual requested a hearing to present information in support of his claim of eligibility for access authorization. At the hearing, as throughout the administrative review process, he unequivocally denied ever having any sexual contact with the complainant.(3) Ten persons testified for the Individual at the hearing: the district attorney who prosecuted the Individual; the physician who examined the alleged victim; a private investigator who spoke with the alleged victim during the pendency of the criminal matter; and seven friends of the Individual. I will refer to these seven friends by number, as Witnesses 1 through 7. A personnel security specialist testified for the Department.

Facts

The following facts are not in dispute. The Individual is a divorced male in his forties.(4)Approximately fifteen months before the hearing, the Individual was arrested at his home by officers of the local police force.(5)Originally, he was charged with one count of unlawful intercourse with a minor and unlawful oral copulation with a minor.(6)Subsequently, the complaint was amended to four felony counts: forcible rape, unlawful intercourse with a minor, forcible oral copulation, and unlawful oral copulation with a minor.(7)

The charges referred to an alleged incident on the day of the Individual's arrest. The complainant was a female, at the time aged seventeen years and three months, who lived near the Individual.(8)After the Individual was booked and released on bail, he promptly notified his supervisor and the Department's security office of his arrest.(9)

Pursuant to an agreement with the prosecutor, the Individual entered a plea of no contest to a reduced charge of misdemeanor unlawful intercourse with a minor. He was sentenced to 30 days in jail and 36 months informal probation, with all the jail time suspended in return for 30 days of community service.(10)The Individual had been regularly updating the security office on the status of the charges against him.(11)After he notified the security office of his no contest plea, the Notification Letter was issued suspending his access authorization.

Analysis

Criterion L

A decision on an Individual's eligibility for access authorization is to be a comprehensive, common-sense judgment, made after consideration of all the relevant information. 10 C.F.R. § 710.7(a). Thus, in evaluating an allegation of criminal behavior under Criterion L, the fact that an Individual was acquitted, that the charges were dropped, dismissed, or reduced, or that the case was dismissed, does not negate the security concerns arising from the possibility that the underlying conduct actually occurred.

The Individual's Claim of Innocence

The facts in this case clearly give rise to a security concern. The Individual pleaded no contest to a serious criminal charge, and accepted a record of conviction and punishment for it. In support of his eligibility for access authorization, the Individual maintains that he did not have sexual relations of any kind with the complainant.

The Individual explained that, while maintaining his innocence of the charges, he pleaded no contest because he did not want to bear the risk of a conviction in criminal trial.(12)Under the applicable law, the uncorroborated testimony of the complainant was enough to sustain a conviction for felony rape, with potential penalties including a prison sentence.(13)By pleading no contest to a misdemeanor charge, the Individual suffered no penalties other than thirty days of community service and payment of costs. In his testimony at the hearing, the prosecutor stated that taking the no contest plea was, in his opinion, a "quite reasonable" course of action for the Individual.(14)

In evaluating the Individual's contention that he did not engage in any sexual relations with the complainant, it is important to note that there are no witnesses, and there is no evidence, that either directly supports, or directly contradicts, the complainant's allegation.(15)In order to evaluate the Individual's claim of innocence, I will consider the totality of testimony presented at the hearing. The four areas of testimony that I will discuss below concern: 1) the strength of the criminal case against the Individual; 2) the character of the complainant; 3) the behavior of the complainant's mother; and 4) the character of the Individual.

I will first discuss testimony about the criminal prosecution that was entered at the hearing. The prosecutor, who was assigned to his office's Sexual Assault Unit at the time, testified at the hearing that there was "no corroboration" for the complainant's allegation, and that the sole basis for the prosecution was the complainant's statement.(16)

The prosecutor also testified that there was no physical evidence of sexual activity between the Individual and the complainant. Further, he noted that there were no signs of trauma on the complainant, which he stated is atypical in cases of forcible rape.(17)A few hours after the rape allegedly occurred, both the Individual and the complainant were examined for evidence at a local hospital.(18)No residue of semen was found on the bodies of either the Individual or complainant. In addition, swabs, slides, and samples of clothing, fingernail scrapings, fiber, and hair from both the Individual and the complainant were sent to the police forensics laboratory. The prosecutor testified that none of these samples provided evidence of sexual contact between the Individual and the complainant.(19)The physician who examined the complainant also testified at the hearing that his examination produced no evidence of sexual activity.(20)

At the hearing, the prosecutor conceded that the case against the Individual was not strong. He acknowledged that at the time the case was pending, he felt it was in "big-time trouble," and he had serious doubts about obtaining a conviction.(21)In addition, he reported that the judge at a preliminary hearing told him there were "big problems with the case" and that he ought to settle it.(22)As a result of the weakness of the case against the Individual, the prosecutor offered him a plea bargain that he characterized as "about as far down as I could go.(23)He also described the sentence given the Individual as "unusually light" for the crime.(24)

I find both the prosecutor and the physician to be credible, impartial witnesses for the Individual. Their testimony establishes that there was no physical evidence against the Individual. The absence of physical evidence significantly reduces the probability that the Individual committed the crime he was charged with. To further assess that probability, I will evaluate testimony about the characters of the complainant, the complainant's mother, and the Individual.

The character of the complainant, as described at the hearing, raises serious questions about her veracity. The testimony of the prosecutor about the complainant is ambiguous. He testified that he had a medical report indicating that the complainant was severely mentally retarded to the extent that he did not believe she was capable of fabricating a story.(25)At the hearing, however, he described her as "street-wise" and acknowledged he did not perceive a level of retardation that the medical report initially led him to believe existed.(26)A private investigator, who had been retained by the Individual, also talked with the complainant shortly after the charges had been filed. During the hearing, he provided his impression of the complainant. He said he believed that her mental functioning was adequate, that she understood what he was asking her, and that she was able to articulate an appropriate response to his questions.(27)

Further light on the complainant's mental state is provided by Witness 7, who lived near the complainant and frequently spoke with her. He described the complainant as eccentric and given to prevarication. He characterized the complainant as living in a "fantasy land.(28)For example, he recounted that she frequently fabricated stories of being pursued by both neighbors and extraterrestrial beings, although she never mentioned the Individual in this context.(29)

On the basis of the testimony of the prosecutor, the private investigator, and Witness 7, I conclude that the prosecutor was wrong in his assumption that the complainant was incapable of fabricating a story. Moreover, in addition to the complainant's general trait of fantasizing, there was testimony that she fabricated the allegation of rape. The private investigator testified that when he called the complainant and asked if the Individual had done anything to her, she answered no, and said something that sounded like "This is all a bunch of bull.(30)When the investigator asked if he could speak to her in person, she told him he could not because her mother was coming home soon. When the investigator called at a later date, the complainant's mother answered the telephone and forbade him from speaking with the complainant.(31)Furthermore, Witness 7 testified that he asked the complainant, while the charges were pending, if the rape had actually occurred, and she told him it had not. According to Witness 7, the complainant admitted that her mother wanted to press the charges so she could sue the Individual and make some money.(32)

Testimony about the complainant's mother provides further support for the Individual's claim that the allegations against him were fabricated. The Individual testified that shortly after the alleged rape he was given a message from the complainant's mother, through Witness 7, that she would drop the charges if he paid her $10,000.(33)Witness 7 corroborated this testimony.(34)Furthermore, Witness 7 testified that soon after a conversation with the complainant, he received a telephone call from the complainant's mother threatening to have him killed unless he stopped "bothering" her daughter.(35)The prosecutor testified at the hearing that when he confronted the victim about this, she conceded that her mother was soliciting funds from the Individual to drop the case.(36)At the hearing, the prosecutor characterized the complainant's mother as "overbearing," engaged in "completely inappropriate" behavior, and having "her own goals [about the proceeding] … including trying to get money out of [the Individual].(37)

The testimony about the complainant and her mother further reduces the probability that the charges were true, and strongly supports the Individual's claim of innocence. The complainant's admission that the allegation against the Individual was false is corroborated by both the private investigator and Witness 7. Furthermore, testimony about the complainant's mother, corroborated by both the prosecutor and Witness 7, raises the distinct possibility that she was using the allegation to attempt to extort money from the Individual.

In addition, testimony about the character of the Individual and the nature of his prior interactions with the complainant further supports his claim of innocence. The Individual described his relationship with the complainant before the allegation as courteous but distant.(38)He testified that there were only two occasions when the complainant had been in his house, where the crime allegedly occurred: once when he allowed her to use his telephone, and once when he employed her to rake his lawn, and she walked through his house.(39)

Witness 7, who lived in the Individual's neighborhood and knew both the Individual and the complainant, corroborated the Individual's account of the relationship between the Individual and the complainant. According to Witness 7, when the complainant and her friend came to the Individual's door, it was more to ask Witness 7 for a ride than to visit the Individual. Furthermore, Witness 7 stated that the Individual would turn down the complainant's requests for a ride from the Individual.(40)When the complainant came to the Individual's door, Witness 7 observed no flirtatious behavior by the Individual, and little interaction between the Individual and complainant.(41)

In addition to the testimony that there was no inappropriate behavior between the Individual and the complainant, there was testimony indicating that the Individual was neither promiscuous nor violent. For example, the Department's security specialist explained a computerized report that her office had obtained, which recorded criminal charges and convictions for a seven-year period. She observed that the report showed no other criminal charges for the Individual.(42)

The testimony from the character witnesses consistently described the Individual as a man of honesty and integrity. Of the seven character witnesses that testified, six had extensive social contacts with the Individual.(43)All testified that they had never noticed the Individual inappropriately associating with, or expressing an interest in either the complainant or minor females in general.(44)Witnesses 1, 2, and 5 know the Individual from activities involving a mutual hobby.(45)Each had been to the Individual's house many times without observing any indications of sexual interest in girls on the part of the Individual. Witnesses 3 and 6 are female friends of the Individual. Both are of approximately the same age as the Individual. Witness 3 met the Individual in a college class about seven years ago.(46)During both the class and a subsequent friendship she says she spent significant time with the Individual.(47)Witness 6 describes the Individual as a "close friend.(48)She participates in cultural activities with the Individual and, like Witness 3, has spent considerable time with him. She says that, at one time, the Individual expressed a desire to have a closer relationship. Although the closer relationship did not happen, she testified that the Individual never tried to pressure her. She described the Individual as a "perfect gentleman.(49)

I find the character witnesses to be credible in their testimony about the Individual. Their collective testimony establishes that the Individual does not have a predilection for sex with minors, or for sexually promiscuous or violent and aggressive behavior.

Conclusion

In a case under 10 C.F.R. Part 710, an individual has the burden of going forward with testimony to rebut, refute, explain, extenuate, or mitigate the allegations. The ultimate burden of persuasion rests on an individual to show that granting or restoring access authorization would not endanger the national defense and would be clearly consistent with the national interest. This standard implies a strong presumption against the granting or restoration of an individual's access authorization. Consequently, security determinations should err, if they must, on the side of denials. Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,751 at 85,527 (1995).

The Individual has met the burden of persuasion. He established that there was no physical evidence or eye-witness testimony supporting the complainant's allegation. Furthermore, he provided credible testimony indicating that the complainant often fabricated stories. Consequently, he has provided clearly convincing testimony that his plea of no contest was not an admission of guilt but rather an attempt to avoid the risks and burdens of a criminal prosecution. In order to meet the heavy burden of persuasion, he has presented sufficient corroborating testimony to support his claim that he did not engage in sexual contact with the complainant. See Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 (1996).

He has brought forward significant testimony from a wide range of witnesses, including the attorney who prosecuted the case against him, the physician who examined the complainant, a private investigator knowledgeable about the case, and seven long-time friends. I find the prosecutor and physician particularly persuasive, because they have no interest in the outcome of this proceeding. In addition, the Individual's friends who testified knew him not only at work, but in different free-time contexts: a shared hobby, classes, and cultural activities.

As a whole, the testimony of all the Individual's witnesses provides a significant increase in knowledge about the charges that gave rise to the security concern, beyond what was available at the time the Notification Letter was issued. Taking into consideration all the testimony now available in this case, I believe that the Individual did not commit the offenses with which he was charged. Therefore, in view of the criteria set forth in 10 C.F.R. Part 710, it is my opinion that the Individual has resolved the security concern raised by the Notification Letter. In the absence of any security concern, I believe that granting the Individual access authorization would not endanger the common defense and would be clearly consistent with the national interest. It is therefore my opinion that the Individual's access authorization should be restored.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: July 25, 1997

(1) Hearing Exhibit (Exh.) 5; Exh. 8.

(2) Exh. 4.

(3) Tr. 197, Exh. 8, Letters "To whom it may concern"; Exh. 17, PSI 6; 17-18.

(4) Exh. 17, Personnel Security Interview (PSI), 4; 32-3.

(5) PSI 5; Transcript of hearing (Tr.) 184-85.

(6) Exh. 11, "Complaint - Criminal."

(7) Exh. 18, "First Amended Complaint - Criminal." The prosecutor explained that the first complaint was based on the police report, which did not indicate any resistance on the part of the complainant. The prosecutor amended the complaint when the complainant told him she told the Individual "no" to sexual conduct. Tr. 49-51.

(8) Exh. 18.

(9) Tr. 85-7; 147; 186.

(10) Exh. 7, "Probation Order and Terms."

(11) Exh. 8, notes from Individual "To whom it may concern."

(12) Exh. 8, Note from Individual "To whom it may concern;" Tr., 200. A plea of no contest, also known as nolo contendere, is a plea "by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it." Black's Law Dictionary 945 (1979).

(13) Tr. 56.

(14) Tr. 59.

(15) By the time of the hearing, the complainant was deceased. Tr. 61, 129.

(16) Tr. 68-69.

(17) Tr. 53-4.

(18) Individual's Exhibit 1, "Report - Suspected Sexual Assault."

(19) Tr. 53-4; 55; 64.

(20) Tr. 178.

(21) Tr. 57.

(22) Tr. 66.

(23)" Tr. 56.

(24) Tr. 66-67.

(25) Tr. 55.

(26) Ibid.

(27) Tr. 140.

(28)" Tr. 120; 128.

(29) Tr. 121-22; 128-28.

(30)" Tr. 134; Individual's Exhibit 1, "Investigation Report."

(31) Tr. 137; Individual's Exhibit 1, supra.

(32) Tr. 116-17.

(33) Tr. 117; 188.

(34) Tr. 117.

(35) Tr. 117-18.

(36) Tr. 56.

(37)" Tr. 62-3.

(38) Tr. 197-98.

(39) Tr. 204.

(40) Tr. 123.

(41) Tr. 124; 127.

(42) Exh. 12, "Background Verification"; Tr. 160-63.

(43) Tr. 12; 39; 79; 96; 103; 113.

(44) Tr. 14; 40; 88-90; 97; 104; 124,

(45) Tr. 10; 28; 95.

(46) Tr. 37.

(47) Tr. 38-9.

(48)" Tr. 102.

(49)" Tr. 108-09.