Security Clearance Revocation Hearings

Posted on February 21, 2012 by admin

If you are employed by the Federal government, as a military member, a civilian employee, or a government contractor, you are likely required to possess some level of a security clearance.  Today, virtually all Federal government positions are required to maintain at least eligibility for a security clearance.  The initial step in obtaining a clearance is the completion of the security clearance application, known as the SF-86.  Depending on the level of clearance sought, the government will investigate your background to determine your eligibility.  Even after you are granted a clearance, the government may seek to revoke that clearance for a wide variety of reasons.

The consequences of failing to obtain or losing one’s security clearance can be severe as it will likely lead to your termination from Federal employment.  In addition, the government could bring criminal charges for submitting a false statement under the U.S. Code.  The maximum possible punishment for this offense is 5 years in prison and a $250,000 fine.  If the government attempts to revoke your clearance, you will receive a letter from the agency involved.  This letter will detail the basis for the government’s proposed action and will explain the rights you have in connection with the process.  You will first have the opportunity to submit written matters in rebuttal to the proposed action.  This is your first chance to challenge the factual basis of the proposed revocation and you should take advantage of this opportunity to correct any inaccurate statements and provide any supporting documentation.  While you can do this without an attorney, the assistance of an experienced national security lawyer may assist you in the process.

There are several reasons why an individual’s application may be denied or why an existing clearance may be revoked.  The reasons include:  drug involvement, sexual behavior, other criminal conduct, foreign influence or preference, personal conduct, alcohol or drug involvement, and emotional, mental or personality disorders.  The most common reason for security clearance revocations is for financial reasons.  Essentially, the concern is that if an individual is in significant debt, that person may be more susceptible to bribery in order to satisfy outstanding debts.  With the economic downturn of the last several years, many honest employees have had to defend their clearances as credit card debt and housing foreclosures have escalated.

The Application Process

If you are submitting your first clearance application or seeking renewal of an existing clearance, the first step in the process is completing the SF-86.  The form is completed on-line today and it can be a tedious process to gather all the required information and complete the questionnaire accurately.  The applicant will then be interviewed personally by an investigator, usually a contractor hired to conduct the investigations.  The investigator will also interview your references, run a credit and criminal background check, and verify the information you provided in your application.  If all goes well, your clearance will be issued, generally within six months of your application.  However, if things do not go well, you may receive a notice of the government’s intent to deny your clearance.  This letter will contain what is known as a Statement of Reasons (SOR) that details the specific reasons for the denial.  As mentioned above, you will then have the chance to submit rebuttal materials for consideration.

The Appeal and Hearing Procedure

If you have received notification that the government is attempting to revoke your security clearance, you will be advised of the hearing procedure by your respective adjudication agency.  The agency involved will depend on your employer.  An Administrative Judge presides over the hearing and the record of the hearing will be transcribed by a court reporter.  The government may or may not be represented by a lawyer and you have the right to have a lawyer represent you during the hearing.  The procedure is similar to a civil or criminal trial with opening statements, direct and cross examination of witnesses, presentation of evidence, and closing argument.  There is, however, no jury and the judge will make a recommendation to the agency based on the evidence presented.  The hearing is generally held in the geographic area of your employer but it may be held via video teleconference with the judge participating from another location.  After the hearing, the judge will prepare a recommended decision and forward it to the agency that will make the final decision.

If you have concerns over your security clearance or have been notified that the government is seeking to revoke your clearance, you should contact an experienced security clearance attorney to discuss the specific facts of your case.

Posted in Criminal Defense, Military Law | Tagged | Leave a comment

Synthetic Marijuana (aka Spice)

Posted on January 7, 2012 by admin

Manufacturers of synthetic marijuana (widely referred to as “Spice”) have responded to recent state and Federal laws criminalizing the use and possession of the herb by slightly altering the chemical compounds involved in the manufacturing process to avoid using the banned substances.  The manufacturing process entails spraying synthetic compounds on herbs that mimic the active ingredient in marijuana.  Recent media reports, including this article in the Washington Post, detail the problems now faced by lawmakers and prosecutors as chemists tinker with the formulas used to create the substance.  The article reports that Virginia’s forensic lab recently tested over 400 samples, only 100 of which contained banned compounds.  Other reports indicate that new versions of the herbal products are returning to store shelves under various trade names and brands.

The alteration of the chemical compounds presents challenges to criminal prosecutors who must prove that the substance actually contains one of the banned ingredients.  Nearly all of the states and the Federal government have some ban on chemicals used in the substances.  The Federal government is seeking to add to the number of chemical structures that would be illegal.

The military generally has a broader prohibition on the use of such substances as service regulations prohibit the use of any controlled substance “analogues” such as designer drugs, natural substances, or chemicals, that is used with the intent to induce “excitement, intoxication and stupefaction of the central nervous system.” Before the chemical compounds used in Spice were listed as controlled substances under the Federal Controlled Substances Act, such cases were usually prosecuted as an orders violation under U.C.M.J. Article 92.  As a result of the alteration of the compounds, the military may well go back to charging this offense as an orders violation to avoid the necessity of proving the specific compound in a particular sample included one of the banned compounds.

If you are being investigated or have been charged with using or possessing an illegal drug, you should consult with an experienced criminal defense attorney to discuss the particular facts of your case.

Posted in Criminal Defense, Military Law | Tagged , , , | Leave a comment

Non-Vessel Operating Common Carriers and Negotiated Rate Arrangements

Posted on January 6, 2012 by admin

Image via Wikipedia

As previously discussed in this post, non-vessel operating common carriers (NVOCCs) licensed by the Federal Maritime Commission (FMC) may now utilize an exemption from the requirement to publish rates in a tariff by entering a Negotiated Rate Arrangement (NRA) with shipper customers.  This option may result in significant savings in tariff publication expenses and increased confidentially assuming the NVO meets certain conditions detailed below.

As background, the FMC’s regulations implementing the Shipping Act previously required all NVO’s to publish rates in a tariff.  Many in the ocean transportation industry questioned the continued utility of tariffs in today’s modern shipping environment.  Maintaining an up-to-date tariff with all rates covering all services, cargo and ports can prove a challenging and expensive undertaking.  In addition, violations of the tariff publication rules could subject an offender to a maximum penalty of $30,000 per knowing and willful violation.

In April 2011, a final rule became effective authorizing the use of NRAs.  An NRA is a written and binding arrangement between a shipper and a licensed NVO to provide a specific transportation service between origin and destination for a stated quantity of cargo.  The transportation may occur on and after a particular date or within a specified time period.  If an NVO uses a NRA and meets the conditions described below, it is exempt from publishing its rate in a public tariff.

As a threshold issue, in order to use an NRA the NVO must first be licensed by the FMC.  Second, the NVO must post a prominent notice in its rules tariff and bill of lading that the rate is pursuant to a NRA.  Third, the NVO must provide the public with free electronic access to its rules tariff that states it will use NRAs.  A rules tariff is still required but the expense and maintenance required for this is significantly less than that for a full rates tariff.  Fourth (and a key requirement), the NVO and the shipper customer must agree to the NRA in writing before the cargo is received for shipment.  While there is no specific format required by the FMC to document the agreement (a detailed email is sufficient so long as it indicates confirmation and consent of both the NVO and the shipper), it should include all the details of the shipment.  Finally, the NVO must keep documentation of the NRA on file for 5 years and must make that documentation available promptly to the FMC if requested.

Eric Roper is a former trial attorney with the FMC’s Bureau of Enforcement and currently holds the rank of Commander in the Reserve Component of the U.S. Navy’s Judge Advocate General’s Corps.  His practice includes representing clients in the maritime transportation industry.

Posted in Maritime Transportation | Tagged | Leave a comment

UPDATE: Spice allegations in the military

Posted on November 7, 2011 by admin

Image via Wikipedia

The military continues to target and prosecute service members under the Uniform Code of Military Justice (UCMJ) who are accused of using or selling Spice, a type of synthetic marijuana.  The continued emphasis on this type of prosecution in the military serves as a reminder of the importance of seeking the immediate assistance of a criminal defense lawyer if you are questioned or suspected of having used Spice or any other controlled substance.

Many media articles have recently reported the results of Navy investigations in San Diego that led to 64 sailors being disciplined and processed for administrative separations from ships assigned to the Navy’s Third Fleet.  Similar cases have been reported at other military commands around the country including the service academies.  Although many of the media reports state that the accused members “will be” kicked out of the military service under a zero-tolerance policy, all military members who are accused of a criminal offense have rights afforded to them under the UCMJ and applicable service regulations.  Any reference to zero-tolerance refers to the policy of all the military services to initiate administrative separation proceedings for members who are accused of unlawfully using drugs.  It does not, however, mean that the members will automatically be discharged from the service.

If you are suspected and questioned about the wrongful use of any controlled substance, you are first entitled to remain silent and to consult with a criminal defense lawyer before answering any questions from law enforcement or command security personnel.  Although Navy and Marine Corps members assigned to or embarked on a vessel do not have the right to refuse non-judicial punishment (NJP), they do have the right to an administrative separation board and to representation by a criminal defense lawyer if the military attempts to separate them with an other than honorable (OTH) discharge.  If you are notified of an administrative separation for drug abuse, you should not waive any of your rights, including the right to the board, before you talk with a defense lawyer.

If you have questions about a case involving Spice or any other controlled substance, you may contact the Law Office of Eric Roper for a free, confidential initial consultation.

Posted in Criminal Defense, Military Law | Tagged , , | 1 Comment

The knowledge element in Florida drug prosecutions

Posted on October 10, 2011 by admin

Image via Wikipedia

Criminal defense lawyers, prosecutors and judges continue to litigate charges brought under Florida Statute Section 893.13, which makes it unlawful for any person to sell, deliver or possess with the intent to sell a controlled substance.  If a defendant is convicted of this offense, he can be sentenced to up to 15 years in prison.  The spate of litigation follows the decision by a Federal judge in Florida earlier this year holding Section 893.13 unconstitutional as a violation of the Due Process Clause of the U.S. Constitution.  The case was Shelton v. Department of Corrections and it has created a surge of similar motions at the trial court level.  The Federal case will be appealed to the Eleventh Circuit and potentially to the U.S. Supreme Court but the decision has already had a profound impact on how these cases are tried in state courts throughout Florida even though such Federal opinions are normally not binding on state court judges.

Shelton v. Department of Corrections

Mackle Sheldon was arrested in 2004 and charged with several crimes in state court, among them the delivery of cocaine in violation of Section 893.13.  Sheldon was convicted of most of the offenses, including the count pertaining to the cocaine, and was sentenced to 18 years in prison.  After exhausting his state court appeals, Sheldon’s criminal defense lawyer sought relief from Federal court.  The Federal judge held that Section 893.13 was unconstitutional because it did not punish the intentional or knowing possession or delivery of drugs.  Instead, it sought to punish even an unintentional or unknowing activity.  Under this statute, a person who picked up her roommate’s gym bag  by mistake and without knowledge that it contained marijuana might be convicted of this offense.  The decision reinforced one fundamental concept in American law: that individuals can only be punished if they are proven to have knowingly and intentionally committed a crime.  This mental state is referred to as the mens rea, literally “a guilty mind”.  To be sure, there are offenses (called “strict liability”) where knowledge is not an element the government is required to prove.  Typically, strict liability offenses are upheld so long as the punishment is not severe, does not result in a substantial stigma, and the offense seeks to regulate inherently dangerous conduct; none of which factors the court found applicable to Sheldon.

Legislative history of Section 893.13 and recent litigation

The Florida legislature enacted the amendment to Section 893.13 in 2002 in response to a Florida Supreme Court case in which a criminal conviction was overturned because the jury was not instructed that knowledge was an element of the crime of possession of a controlled substance.  Taking the rare step of identifying the case by name, the legislature amended the statute to expressly remove any knowledge element from the law, instead requiring the defendant to prove his lack of knowledge as an affirmative defense.  Following the Sheldon decision, several state trial court judges have granted motions filed by defense attorneys dismissing counts charging Section 893.13 offenses.  Some of these cases have been certified for a direct appeal to the Florida Supreme Court due to the large impact of the Shelton decision.

If you have been charged with a violation of Section 893.13, you should consult with an experienced criminal defense lawyer about the effect of the Shelton decision on your case.  If you have already been convicted of this offense, there may still be options for you to seek relief including seek Federal habeas corpus relief, appealing your conviction if done within 30 days of sentence, or seeking post-conviction relief if beyond 30 days from conviction.

Posted in Criminal Defense | Tagged , | Leave a comment

Urine Matters: Military drug testing and when its too late for a “take back”

Posted on October 7, 2011 by Eric Roper

Consider the following hypothetical case.  You are home watching TV when you hear a knock at the front door.  Answering the door, you find a uniformed police officer who asks if he may come inside and take a look around because neighbors have reported smelling what they believed to be burning marijuana coming from your apartment.  Without thinking what a criminal defense lawyer’s advice would be in that situation, you consent to this request.  The officer enters the apartment and immediately notices three large potted marijuana plants growing beside the fireplace.  Is it too late at that point to withdraw your previously given consent to enter the home?  What if the plants are located in a back room and you withdraw your consent before the officer enters that room?

A case recently decided by the U.S. Air Force Court of Criminal Appeals sheds some light on this issue in the context of the military’s drug testing program.  In this case, an Airman consented to provide a urine sample for drug testing.  The sample was given and shipped off to the drug testing laboratory.  Before the sample was tested, however, the Airman revoked his previously given consent to search the sample.  The sample was tested anyway and the results were positive for the presence of cocaine.

At trial, the Airman’s defense lawyer moved to suppress the results of the test as a violation of the Fourth Amendment’s protection against unreasonable searches and seizures.  The military judge granted the motion and found that the testing of the sample after the revocation of consent violated the Fourth Amendment.  The government appealed and the appellate court reversed.

Although the court agreed that military members have a reasonable expectation of privacy in the collection and testing of their urine, it held that this search did not violate the Fourth Amendment because the expectation of privacy did not continue once the sample was provided.  The court analogized this situation to that of someone who takes their garbage out to the curb for pick up, thereby voluntarily abandoning any reasonable expectation of privacy in the contents.  Urine, the court held, is a waste product which will ultimately be destroyed and in which there is no continuing reasonable expectation of privacy.

If you have questions about your legal rights, you should consult an experienced military criminal defense lawyer.

Posted in Criminal Defense, Military Law | Tagged , | Leave a comment

The Right to Refuse Non-Judicial Punishment under the U.C.M.J.

Posted on April 29, 2011 by Eric Roper

Article 15 of the Uniform Code of Military Justice (UCMJ) provides the authority for a Commanding Officer to impose non-judicial punishment (NJP). Subject to some limitations, individuals facing NJP have the right to refuse NJP and to consult with a criminal defense lawyer before making such a decision. Contrary to popular belief, however, there is no right to demand a trial by court-martial.

A Federal judge in Virginia recently dismissed criminal charges against 5 Marines who were charged in Federal court with driving under the influence of alcohol after the Marines had already been punished for the same offenses at NJP. Some of the defendants had consulted with a military criminal defense lawyer before electing to receive NJP while others waived their right to consult with counsel. In each case, the court held that the Marines’ did not receive sufficient information to make a voluntary, knowing and intelligent waiver of their right to refuse NJP. The court reasoned that the military JAG lawyers provided to those Marines that did elect to consult with counsel were prohibited under service regulations from forming an attorney-client relationship and that this prevented the Marines from making a fully-informed decision whether or not to accept NJP.

As noted before on this blog, a Federal criminal prosecution is not prohibited under the Double Jeopardy clause of the U.S. Constitution where the same charge was previously the subject of an NJP. Federal prosecution is, however, prohibited following a trial by court-martial since the court-martial is a criminal proceeding and the same sovereign (i.e. the Federal government) is the prosecuting agency. In dismissing the charges against the Marines, the court held that they did not receive sufficient information about the possible prosecution of the same charge in civilian court or of the possible consequences of such a prosecution. The court stated:

“An accused servicemember must be aware of all of the likely consequences — both military and civilian, as well as the interplay between them …”

The decision whether or not to accept NJP is an important one as it can have serious consequences both in the military and in a civilian court. If you have questions about an NJP case, you should consult with an experienced criminal defense lawyer familiar with both the military and civilian systems.

Posted in Criminal Defense, Military Law | Tagged , | Leave a comment

Warrantless Searches, Drug Dogs, and Private Residences

Posted on April 15, 2011 by Eric Roper

The Florida Supreme Court, in a 5-2 opinion, recently ruled that a warrantless “sniff test” by a drug detection dog at the front door of a private residence was an unreasonable search under the Fourth Amendment. In 2006, police received an anonymous tip that a private home was being used to grow marijuana. Acting without a warrant, police showed up at the residence with a drug detection dog and walked the dog up to the front door where the dog alerted to the presence of narcotics. An officer at the door also smelled marijuana. The police then left the residence and obtained a search warrant based on the dog’s alert and the officer’s observations. Police returned to the home with the warrant and searched the home finding marijuana plants inside. Before trial, the defendant’s criminal defense lawyer moved to suppress the evidence seized from the home, claiming that the search warrant was invalid because the initial “sniff test” was unconstitutional. The trial court agreed and suppressed the evidence but the government appealed.

In ruling in favor of the defense, the court distinguished prior U.S. Supreme Court cases which upheld the use of drug dog “sniff tests” in other settings such as airport luggage screenings and exterior vehicle alerts at checkpoints and lawful traffic stops. The court found that the use of such tests at a private residence warranted a higher level of scrutiny since the home enjoys special protection under the Fourth Amendment.

Posted in Criminal Defense | Tagged | Leave a comment

Miranda and Custodial Interrogations

Posted on April 15, 2011 by Eric Roper


Should a criminal defense lawyer file a motion to suppress incriminating statements recorded by police when the defendants were being held in the back of a patrol car? That is the question raised by the recent arrest of two University of Florida basketball players and a team manager in St. Augustine, Florida. The players are charged with felony burglary and the manager is charged with being a principal to the burglary of a car parked outside a local bar. The players were detained by police and placed into the back of a police patrol car while the manager remained at large. Unbeknownst to the players, police first placed a small tape recorder in the back seat and turned it on. First Coast News obtained the audio of the players conversation which is available here. In the recording, the players can be heard admitting to breaking into the car and discussing various stories they could tell police in an effort to “get off.” The players also use a cell phone to call the manager and place him on speaker phone.

A few weeks ago on this blog, we talked about when statements made by a criminal defendant who is in police custody may be admitted as evidence against the defendant in a criminal trial if the defendant is not read his or her Miranda rights. As we discussed in that prior post, a defendant who is in custody must be advised of his or her Miranda rights before being questioned by police. The players in this case would almost certainly be considered in police custody since a reasonable person in that situation would not feel he was free to leave. Although the full facts are not yet known, it is very possible that the players were locked in the vehicle and could not have just opened the door and walked away if they had wanted to. This, however, does not end the inquiry. Miranda also requires that the statements sought to be suppressed be made in response to police questioning. Here, the players do not appear to have had their Miranda rights read to them but the police did nothing more than detain the suspects in a patrol car. The officer quoted in the article correctly notes that there is no reasonable expectation of privacy in the back seat of a police car. Although this expectation of privacy, or the lack thereof, is more relevant to a Fourth Amendment analysis of what constitutes an unreasonable search and seizure, the purpose of this post is to examine whether the incriminating statements are admissible under the Fifth Amendment and Miranda.

If there was a police officer in the car with the players who was questioning the suspects about the burglary, clearly Miranda would require that the officer read them their rights. In this case, however, the players freely choose to discuss the events with each other. The fact that they did not know they were being recorded is irrelevant to whether the statements will be admissible in court.

Posted in Criminal Defense | Tagged , | Leave a comment

Military Consequences of Civil or Criminal State Court Actions: What You Don’t Know Can Hurt You

Posted on March 25, 2011 by Eric Roper

If you are in the military and find yourself in state court, either as a party to a civil case such as a divorce or as a defendant in a criminal case, your lawyer should know what effect the state court actions may have on your military career. There is a perception by some in uniform that what they do in their private, off-duty lives bears little or no bearing on their military career. Unfortunately, some learn the falsity of this perception only after suffering an adverse action in the military based on something that happened in a state courtroom.

To illustrate this point, we will consider two fictional but realistic scenarios. In the first, assume Staff Sergeant Jones and her husband have decided to separate and Jones’ spouse has filed a petition in state court seeking a divorce. The couple has two minor children and the issue of custody is the main point of contention in the divorce proceedings. Although things began amicably, the dispute soon becomes intensely personal with both parties hurling accusations of various misdeeds against the other in an effort to persuade the court of the other’s unfitness as a parent. At a hearing on the matter, Staff Sergeant Jones’ spouse testifies that Jones is in the habit of drinking a twelve-pack of beer a night, often in front of the children, is verbally and physically abusive towards him, and has been dating a senior male member of her unit. Jones’ spouse has also written a letter to Jones’ military command making similar complaints and adds that Jones has not provided him any financial support during their separation even though she is still drawing a housing allowance at the higher “with dependents” rate.

Obviously Jones and her lawyer will attempt to rebut the charges but the allegations could have far-reaching effects on Jones’ military career. For example, the drinking and abusive conduct could result in her command referring her for dependency screening and treatment or a family advocacy investigation which may affect promotion opportunities and eligibility for security clearances or future duty stations. The command may also open an investigation into alleged fraternization or adultery charges which could result in disciplinary action under the Uniform Code of Military Justice (UCMJ).  Depending on the specific charges, such action could be non-judicial punishment (NJP) or court-martial. Finally, the failure to provide financial support may lead to additional administrative or disciplinary action. As you can see, it is vitally important that Jones and her lawyer take aggressive actions, both in state court and in dealing with the military, to protect her interests.

In our second example, assume that Lieutenant Doe is driving home from an afternoon social event at which he had several beers. He is off-base but is stopped by the police for suspicion of driving under the influence (DUI) after the officer noticed him weaving in and out of traffic without using a turn signal. Doe is arrested and charged with DUI. Doe’s first question may be whether he has an obligation to report his arrest to his military command and any military or criminal defense lawyer he consults should be aware of the various reporting requirements and directives each service has with respect to reporting such arrests. Doe should also be concerned with what actions the military may take against him as a result of this arrest. It is not uncommon for the military to take separate disciplinary or adverse administrative action against someone based on a civilian arrest even while the charge is still pending adjudication in state court. Here again, the actions taken could range from NJP to court-martial. The Double Jeopardy clause of the U.S. Constitution offers no defense to such actions since the state and Federal governments are separate sovereign entities but Doe and his criminal defense lawyer may raise any other defenses to challenge the arrest within the military system.

In summary, if you are in the military and involved in any legal proceedings before a state criminal or civil court, you and your lawyer should be aware of the effect actions taken in state court may have on your military career. If you have questions about your legal rights, you should consult with an attorney who has experience in both civilian and military jurisdictions. If you have specific questions about your case, call The Law Office of Eric Roper for a free initial consultation.

Posted in Criminal Defense, Military Law | Tagged , | Leave a comment