No Conviction But Removal Stands

By on November 17, 2006 in Current Events with 0 Comments

 A Customs Border Protection Officer at the port in Dallas/Ft. Worth has lost his bid with the appeals court to overturn his firing for possession of illegal drugs or controlled substances. (Wilson v. Department of Homeland Security, C.A.F.C. No. 2006-3276 (non precedent), 11/l5/06)

As the court recounts the facts, Wilson met a lady from Brazil when she arrived on a flight at Dallas where Wilson was in the passenger processing branch. A couple of months after Wilson and Ms. Silveira met, she called the police to Wilson’s house to report a “domestic disturbance.” Unfortunately for Mr. Wilson, the police officers that responded found “controlled substances on the coffee table, and in his freezer and closet.” Wilson gave the officers a written statement at the scene, the gist of which was that he had bought the marijuana for Ms. Silveira to treat her HIV.

Homeland Security fired Wilson for the illegal possession. He appealed to the Merit Systems Protection Board where he tried to explain that the drugs were not his and had been purchased, not by him, but by Silveira. (Wilson v. Dep’t of Homeland Sec., No. DA0752050472-I-2 (M.S.P.B. Feb. 16, 2006))

The Administrative Judge found this change in Wilson’s story without credibility since he had admitted to the police officers that he had purchased the marijuana. The AJ also found that Wilson did indeed have illegal drugs in his home. End of story.

Wilson changed his story yet again when he went to the appeals court—this time he acknowledged that he had filled the prescription. But he argued that since he had not actually been convicted of any crime—the charges against him were eventually dropped–then his removal should be overturned.  Not so, said the court. “The elements of a criminal violation are different from the elements of misconduct that must be proved to the board. The standard of proof is also higher in a criminal case…Therefore, the lack of a criminal conviction does not preclude the agency from removing Mr. Wilson based on a charge of possession of illegal drugs or controlled substances” (p. 5)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.