Month: October 2019

All those who are hired for a federal position must undergo some form of basic background investigation to determine if an individual is “reliable, trustworthy, of good conduct and character, and loyal to the United States.” This goes for military personnel, government employees, or even governmental contractors.

Naturally, many people question what kind of information may become available to the government once investigators begin looking into personal, criminal, and financial history. Since many people living in the District of Columbia and Maryland work for the federal government and often need security clearances, it is important to know what impact certain crimes, like DUI, misdemeanors, and felonies, may have on the clearance process.

Levels of Security Clearance

Depending on the nature of the position, a different level of security clearance may be required. There are a few different layers to the various security clearances. It begins with three main classifications: non-sensitive positions, public trust positions, and national security positions. Non-sensitive and public trust positions require the lowest level of background check – usually conducted through an automated system.

Within national security checks, there are a further three levels of classification: confidential, secret, and top secret. Confidential is the lowest level and is usually required for positions in which one would have access to information that may cause some damage to national security. Secret classifications are for those positions with access to information, which could cause serious damage to national security, while top secret is a security clearance needed for those who will have access to information, which would cause exceptionally grave damage to national security. Security clearances must be reinvestigated – confidential clearances must be reviewed every 15 years while secret and top-secret clearances must be renewed every 10 and 5 years, respectively.

How does A DUI Impact a Security Clearance?

There is both good news and bad news. The good news is that being arrested, charged, or convicted of a DUI does not automatically mean you are ineligible for securing, or renewing, a security clearance. The bad news, however, is that it can have serious implications and, therefore, negatively impact the security clearance process.

The assigned security officer is tasked with taking a holistic approach to each applicant. This means elements such as time passed between incident(s), low incident frequency, outstanding circumstances related to the event, and any treatment programs to address substance abuse problems can help mitigate concerns that a DUI case may cast on one’s character or judgment.

As always, in the case in which an applicant’s security clearance is canceled or denied due to a DUI, there is an appeal process.

How do Misdemeanor and Felony Cases Impact a Security Clearance?

There are three categories of applicants who are immediately disqualified from receiving a security clearance:

  1. A person who is currently a user or addicted to a controlled substance.
  2. Any individual deemed mentally incompetent.
  3. An individual dishonorably discharged from the military.

Outside these three circumstances, having a criminal conviction does not directly eliminate one from receiving a clearance, although it certainly will hurt the applicant’s chances.

A major issue with misdemeanors is if there is a clear and identifiable pattern of offenses. This will inherently call into question the applicant’s ability to follow the rule of law, along with the individual’s judgment, reliability, or trustworthiness.

Problems with court-ordered rehabilitation or parole on a misdemeanor case may also reflect negatively. It is important to note that for the SF-86 form, which is the standard form filled out for security clearance applications, even a minor traffic incident in which law enforcement restricts the applicant’s personal freedom, is taken into custody or is released with a promise of appearing in court at a later date, are all considered misdemeanor arrests. Exceptions can be made for fines under $300, not involving drugs or alcohol.

If the applicant has a felony case against them, this could pose even larger barriers to a security clearance than a misdemeanor charge. The SF-86 asks questions related to any potential involvement of the applicant in a felony case, which features alcohol, drugs, firearms, or explosives. It follows up with a question on if this has occurred within the last 7 years, if the applicant was court-martialed (if military at time of incident) or is currently awaiting pending court action. When it comes to felony cases, security officers will view crimes involving either dishonesty (fraud, theft, embezzlement, etc.) and those which may expose the applicant to potential blackmail, in the harshest light.

For further questions relating to your security clearance application or how your criminal record may impact this process, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or D.C. look at your case.

In many cases around the country, teens have been convicted for exchanging photos with their significant others. It’s quite easy to simply state sexting should be stopped. However, it’s difficult to state that an adolescent teen sending a photo of themselves to their significant other should receive a 10- year sentence and a felony conviction. It’s also quite a stretch to believe somehow this is protecting children from exploitation.

On August 28th, 2019, the Maryland Court of Appeals upheld a lower court’s decision to convict a 16-year-old girl with distributing child pornography and displaying an obscene item to a minor. According to the court ruling, In re: S.K., the girl shared a video of herself, filmed by a third party, with two of her close friends. In the video, the defendant was performing fellatio on an unidentified male.

A falling out between friends lead to one of them reporting the video to the school resource officer from the Charles County Sheriff’s Office. The officer filed a police report, including a written statement from the defendant which admits she was in the video and she sent it to her friends. The state’s attorney office then filed three counts of criminal charges.

At the conclusion of the hearing, count 1, filming a minor engaging in sexual conduct, was dismissed because there was no evidence presented that the defendant was filming the video. At the end of closing argument, the juvenile court found the defendant guilty as to counts 2 and 3.

The Problem with this Ruling

The laws that the defendant was charged with were written and passed with the intent to protect minors against exploitation and abuse at the hands of adults. These laws should not be used to convict teenagers of engaging in normal, healthy activities for people their age. Activities which are becoming increasingly common with the technological advances of the past decade and the technical know-how of today’s teenagers. In upholding this ruling, the courts are essentially convicting the defendant as her own pornographer, as the defense attorney argued on appeal. By entering the defendant into the criminal justice system, the court is acting counterintuitively to what the law’s original intent was – to protect minors.

Where the Majority Opinion got it Wrong

In the majority opinion, Judge Joseph M. Getty cites the Washington State Supreme Court case State v. Gray to make the point that it is the court’s duty is to interpret the law as written and, if unambiguous, apply its meaning to the facts at hand. Getty then goes on to conclude that the statutes are unambiguous and determines that the guilty ruling is to be upheld.

The definition of unambiguous is “not open to more than one interpretation.” The fact that there wasn’t a unanimous ruling in Maryland Court of Appeals, the lone dissenter being Judge Michele D. Hotten, logically concludes that the Maryland law on child pornography is open to more than one interpretation and thus, open to judicial interpretation. At this time, Judge Getty should have concluded that the Maryland General Assembly could not have meant for the laws to be used to charge minors with violations of law, as the laws were written at a time prior to the smartphone phenomenon of teenage sexting and based on the plethora of legal writings that differentiate teenage sexting from child pornography.

Judge Getty’s opinion did include a recommendation for Maryland to update their child pornography laws to exclude minors, as the Maryland General Assembly is one of 21 state legislatures who have not done this already. States that have updated their laws have incorporated separate offenses applied to minors, affirmative defenses for minors, and lower penalties if the minor is found delinquent, such as educational classes or community service. While the sentiment of this suggestion is nice, it does nothing to help the defendant in this case.

Future Implications

Based on this ruling, as well as Judge Getty’s recommendation to change the law, it is likely that the Maryland legislature will amend this statute in the near future to include specifications for minors and how they share images and videos in the modern age. Until this amendment is passed, teenagers across Maryland could continue to face the negative implications of an outdated and unjust law. In order to avoid facing similar charges as S.K., minors should avoid taking and sending explicit photos and videos. It’s important to remember that after you send the image or video once, you can’t control where it goes next.

Last but not least, it’s important to know the laws in your state and to contact a knowledgeable attorney to go over any defenses you may be able to explore. Contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or the District of Columbia provide a free, confidential evaluation of your case.

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