[00:00:00] Speaker 03:
This morning's third argument is appeal number 22-1919, Mara versus the Department of Justice.

[00:00:10] Speaker 03:
Mr. Granger, whenever you're ready.

[00:00:14] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 02:
My name is Raymond Granger, and I'm appearing on behalf of the petitioner, Thomas Mara.

[00:00:23] Speaker 02:
Your honors, if I may begin by taking a moment to lay out the scene at the dock that night.

[00:00:30] Speaker 02:
I think that would help put the problems with the agency's case and with the board's decisions in perspective.

[00:00:37] Speaker 01:
There is a kind of a preliminary question before you do that.

[00:00:40] Speaker 01:
Do you agree that your appeal focuses on alleged factual errors rather than legal errors?

[00:00:46] Speaker 02:
For the most part, it does, Judge, although we do believe that the legal standards were violated.

[00:00:51] Speaker 02:
There's not substantial evidence for certain findings.

[00:00:53] Speaker 02:
We feel that the Douglas factures were not followed correctly, so maybe more considered mixed questions of law and fact.

[00:01:02] Speaker 02:
We do believe, importantly, Judge, with respect for factual arguments,

[00:01:07] Speaker 02:
This court has made clear that the board cannot simply denominate its findings in terms of credibility and then avoid inconsistencies in the record and have those credibility findings insulated from review.

[00:01:26] Speaker 04:
As another preliminary, is it also correct, you're really only appealing the removal decision.

[00:01:33] Speaker 04:
You're not here asking us to vacate or reverse the two findings that your client engaged in conduct on becoming and show court judgment, right?

[00:01:45] Speaker 02:
We are asking you to find that charge one, specification three, and charge two were not proven.

[00:01:52] Speaker 02:
Right, but that would still leave your

[00:01:54] Speaker 04:
client having been found to have violated the first charge, correct?

[00:02:00] Speaker 02:
That's correct.

[00:02:01] Speaker 02:
We're not conceding charge one specifications one and three and charge two.

[00:02:08] Speaker 02:
You're not contesting those.

[00:02:10] Speaker 02:
Yes, sir.

[00:02:10] Speaker 02:
Gotcha.

[00:02:11] Speaker 02:
Thanks.

[00:02:12] Speaker 02:
But in terms of the physical layout that I think will help put a lot of arguments in perspective and why we believe this court should remand

[00:02:21] Speaker 02:
In the appendix at page 662, I don't know if your honors have that available, but if you do not, it's a place where you may start when you take this into consideration.

[00:02:33] Speaker 02:
There is a picture of the dock.

[00:02:35] Speaker 02:
It's not a nighttime picture, but it was entered into evidence as a fair and accurate representation.

[00:02:40] Speaker 02:
of the scene that night.

[00:02:43] Speaker 02:
And again, that's Appendix 662.

[00:02:46] Speaker 02:
And if I could just set the scene, Your Honor.

[00:02:49] Speaker 02:
If you start from the bottom of the picture up, as you get past the beach to the left, you see what's referred to as the dinghy dock, which becomes important in the testimony of Captain Smith.

[00:03:02] Speaker 02:
Further up the dock, you see a fence.

[00:03:04] Speaker 02:
That's to the left of that fence, where the fence is considered the gate.

[00:03:08] Speaker 02:
And to the far left is where it was opened.

[00:03:11] Speaker 02:
In front of that gate, closest to the left, closest to the water, was Keyshawn Serrano.

[00:03:17] Speaker 02:
Next to him, to the right, was Captain Smith.

[00:03:20] Speaker 02:
And next to him was a witness that the agency does not contest was a disinterested witness with no bias.

[00:03:26] Speaker 02:
And that was a security officer named Julian Powell.

[00:03:29] Speaker 02:
Farther down the dock, according to Mr. Smith's testimony, approximately 110 feet away,

[00:03:35] Speaker 02:
were two other crew members, Cory Krieger and Jocelyn Nolasco Guerrero.

[00:03:41] Speaker 02:
We also want to make clear, Judge, that it's also clear from Mr. Smith's testimony and I'll

[00:03:48] Speaker 02:
refer you to the appendix at 932 to 33.

[00:03:51] Speaker 02:
The ferry you see in the picture, that's not where the Red Hook 1 was.

[00:03:57] Speaker 02:
What Captain Smith describes quite explicitly is that his ferry was behind where this ferry is situated.

[00:04:04] Speaker 02:
And that's important because two of the crew members come running down from the end of the dock.

[00:04:09] Speaker 02:
So when you now take this scene, I want to point out that

[00:04:14] Speaker 02:
Mr. Smith made two extraordinary claims that he had never made before.

[00:04:20] Speaker 02:
He didn't make them to the Virgin Island Police Department when he was interviewed the next day.

[00:04:24] Speaker 02:
He didn't make the claim to the Office of the Inspector General when he was interviewed four months later.

[00:04:30] Speaker 02:
And he did not make the claim in his own report that he filed the next day.

[00:04:35] Speaker 02:
And that was when Mr. Marra and his then co-worker, Mr. Wambacher, reached the dinghy dot.

[00:04:41] Speaker 02:
They started yelling racial slurs.

[00:04:44] Speaker 02:
Now, not only had he never said that before, but Ms.

[00:04:48] Speaker 02:
Powell, a disinterested witness, said, in fact, she didn't hear any racial slurs by Mr. Merritt.

[00:04:57] Speaker 04:
Nobody ever says that Mr. Merritt did not utter racial slurs.

[00:05:02] Speaker 04:
No witness has asked directly, hey, can you confirm that Mr. Merritt never said any racial slurs?

[00:05:09] Speaker 04:
And they confirmed that, correct?

[00:05:10] Speaker 02:
Well, Mr. Marra testified that he did not.

[00:05:13] Speaker 02:
Other than your client.

[00:05:14] Speaker 02:
Well, but the only witness that the agency called was Captain Smith.

[00:05:20] Speaker 02:
Those witnesses would not.

[00:05:22] Speaker 04:
I'm talking about throughout the entire investigation, the Virgin Islands Police, the Department of Justice, I think it was.

[00:05:29] Speaker 04:
the deciding official.

[00:05:31] Speaker 04:
Nobody ever says, yes, I was there.

[00:05:36] Speaker 04:
I saw the whole thing.

[00:05:38] Speaker 04:
Mr. Marin never used a racial slur.

[00:05:40] Speaker 02:
Well, I don't recall anyone specifically asking that, either Virgin Islands Police Department or Forbes Inspector General.

[00:05:47] Speaker 02:
What I can tell you... Could have been asked, right?

[00:05:49] Speaker 02:
You all could have asked it.

[00:05:51] Speaker 02:
I did the witnesses were they're not my witnesses and they wouldn't they would not speak to us the agencies got the burden and we had what we do up here say statements that I think address your concerns.

[00:06:02] Speaker 02:
Keith Sean Serrano who was right at the dock right at the opening.

[00:06:06] Speaker 02:
He told the Virgin Island Police Department that Mr. Wambacher used racial stereotypes.

[00:06:10] Speaker 02:
Did the police ask Mr. Serrano whether Mr. Marra did?

[00:06:16] Speaker 02:
I don't know, but what they put in the report is that Mr. Serrano said it was Mr. Wambacher.

[00:06:20] Speaker 02:
He was interviewed four months later, and he said it again.

[00:06:23] Speaker 04:
Isn't the bottom line here?

[00:06:24] Speaker 04:
This was tried.

[00:06:26] Speaker 04:
in front of the board.

[00:06:27] Speaker 04:
The board heard the witnesses that were called by both sides and made a finding that your client, probably as well as the other individual, made racial slurs.

[00:06:38] Speaker 04:
And we review that very deferentially.

[00:06:41] Speaker 02:
You do, but you have made clear, Your Honor, there are limits.

[00:06:44] Speaker 02:
And what I'm saying is that the AJ's findings

[00:06:47] Speaker 02:
She didn't even address our arguments.

[00:06:49] Speaker 02:
The board, in reviewing the administrative judge, didn't even address our arguments about the inconsistency of hearsay statements that the administrative judge relied on.

[00:06:59] Speaker 02:
She cited eight hearsay statements.

[00:07:01] Speaker 02:
So we'll look at the hearsay statements.

[00:07:03] Speaker 02:
Keishon Serrano tells the Virgin Island Police Department the next day.

[00:07:06] Speaker 02:
It was Wambach.

[00:07:08] Speaker 02:
Nothing said about Mr. Marra.

[00:07:10] Speaker 02:
Four months later, he's interviewed by the Office of Inspector General.

[00:07:12] Speaker 02:
It was Wambacher.

[00:07:13] Speaker 02:
He doesn't say it was Mr. Marra.

[00:07:15] Speaker 02:
I think that if he had heard Mr. Marra make the comment, he'd have said it.

[00:07:20] Speaker 02:
Mr. Krieger, interviewed by the Virgin Islands Police Department the next day, it was only Mr. Wambacher.

[00:07:26] Speaker 02:
He was interviewed by the Office of Inspector General.

[00:07:27] Speaker 02:
It was only Mr. Wambacher.

[00:07:29] Speaker 03:
They all said only?

[00:07:31] Speaker 03:
I don't remember that.

[00:07:32] Speaker 02:
Well, what they said it was Mr. Wambacher for a conclusion

[00:07:40] Speaker 02:
I think a common sense reading of the record is when witnesses are telling law enforcement that someone used a racial slur, they're going to tell those law enforcement, those interviewers, if someone else used a racial slur.

[00:07:56] Speaker 02:
And this is a key point.

[00:07:57] Speaker 02:
And importantly, again, we have an eyewitness there, the security officer, who Mr. Smith vouched for.

[00:08:05] Speaker 02:
They've apparently known each other all their lives.

[00:08:07] Speaker 02:
And he stated in the record that he is so convinced of her credibility, that his words, that he would believe something simply because she said it.

[00:08:17] Speaker 02:
And she said no.

[00:08:18] Speaker 02:
And in fact, agency counsel at the hearing found it so incredible that.

[00:08:24] Speaker 01:
Can you expand on that?

[00:08:25] Speaker 01:
You just said she said no.

[00:08:26] Speaker 01:
Can you give me a little bit more context on what you're describing?

[00:08:29] Speaker 02:
As to Ms.

[00:08:30] Speaker 02:
Powell.

[00:08:30] Speaker 01:
You just said, she said no, and I felt like it came out of God.

[00:08:34] Speaker 01:
Can you just give me a little bit more context?

[00:08:35] Speaker 02:
She was asked if Mr. Marra had made any racial slurs.

[00:08:40] Speaker 02:
And then to your point, she was asked at trial.

[00:08:42] Speaker 02:
And she said she didn't hear any racial slurs from Mr. Marra.

[00:08:47] Speaker 01:
She didn't hear him, but she didn't say he did not, right?

[00:08:50] Speaker 02:
She did not hear him, but she was not only no farther away from Mr. Smith, when Mr. Smith is saying for the first time that Mr. Wambacher and Mr. Merritt are yelling from the end of the dock,

[00:09:04] Speaker 02:
She actually might have been closer.

[00:09:06] Speaker 02:
There's a portion of her testimony that indicates she may have actually been 10 feet closer to Mr. Marra and Mr. Wambacher.

[00:09:13] Speaker 02:
But the entire distance at most is about 40 or 45 feet.

[00:09:17] Speaker 02:
And I submit to Your Honor that that disinterested witness, if those racial slurs had been yelled by Mr. Marra from the end of the dock, she'd have heard it.

[00:09:27] Speaker 02:
And Mr. Serrano would have heard it.

[00:09:30] Speaker 02:
And Mr. Serrano would have told the Virgin Island Police Department.

[00:09:33] Speaker 02:
He would have told the Office of Inspector General, but they did not.

[00:09:37] Speaker 01:
What are you seeking for relief from this court?

[00:09:39] Speaker 01:
What are you asking for?

[00:09:40] Speaker 02:
I'm sorry, Your Honor.

[00:09:41] Speaker 01:
What relief do you want from this court?

[00:09:44] Speaker 02:
Mitigation of penalty.

[00:09:46] Speaker 02:
A remand for mitigation of penalty.

[00:09:49] Speaker 02:
That's what we're looking for here, Judge.

[00:09:51] Speaker 02:
And I think that the agency's case, I mean, they only called one fact witness.

[00:09:57] Speaker 02:
And I think that their case falls with that one fact witness because the hearsay statements in the record completely belie Mr. Smith on this point, and another important point.

[00:10:08] Speaker 02:
But just to give you the sights, Appendix 680 is Mr. Serrano's Virgin Island Police Department statement.

[00:10:18] Speaker 02:
357 is his OIG statement.

[00:10:21] Speaker 02:
Mr. Krieger, his Virgin Islands Police Department statement is at 682.

[00:10:26] Speaker 02:
His statement to OIG is at 356.

[00:10:29] Speaker 02:
Now, there was one other witness who claimed that he heard it too, and that was Jocelyn Monastero Barrero.

[00:10:37] Speaker 02:
But when he was interviewed the next day, he said no.

[00:10:40] Speaker 02:
He said it was only Mr. Wombacher.

[00:10:41] Speaker 02:
It was only four months later.

[00:10:43] Speaker 02:
And I would point out to you, Judge, that he is a crew member of Mr. Smith.

[00:10:48] Speaker 02:
His memory is certainly going to be a lot fresher as of the time he gets interviewed by the Virgin Island Police Department.

[00:10:54] Speaker 02:
And he, the next day, said it was Mr. Wambacher, and he didn't mention Mr. Merrick.

[00:10:59] Speaker 02:
So there are a total of, and one other witness, there was an independent witness named Amber Smith, who told the Office of Inspector General that it was only Mr. Wambacher.

[00:11:10] Speaker 02:
So you've got five witnesses to the country.

[00:11:12] Speaker 04:
The deciding official already testified, I don't remember if it was he or she, that they would have given the same penalty of removal.

[00:11:20] Speaker 04:
even if your client did not make any racial slurs.

[00:11:25] Speaker 02:
And he testified worse to that effect, Your Honor.

[00:11:28] Speaker 02:
And I submit to you that that's not credible.

[00:11:31] Speaker 02:
And it's not credible because if you read the proposal, you read the decision letter.

[00:11:35] Speaker 02:
And then especially if you read the letter from the owner of the Farlock Ventures company that owned the

[00:11:46] Speaker 02:
The ferry.

[00:11:48] Speaker 02:
This all started with a letter to the attorney general of the Virgin Islands.

[00:11:53] Speaker 02:
The governor of the Virgin Islands was copied.

[00:11:55] Speaker 02:
The island's congressional representative was copied, several others, and of course, OPR.

[00:12:01] Speaker 02:
It was the charge that made this an explosive case.

[00:12:05] Speaker 04:
OK, so you need us to find

[00:12:07] Speaker 04:
that the folks who made the decision and said that's not the only basis on which I made the decision to remove and I would have made the same decision even if there were no racial slurs.

[00:12:17] Speaker 04:
We need to find that not credible.

[00:12:20] Speaker 02:
Well, I don't think you have to find it not credible in order to remand.

[00:12:23] Speaker 02:
I think you could still independently say that, especially if you believe there is substantial reason to doubt Captain Smith, there is sufficient reason here to remand for mitigation.

[00:12:39] Speaker 02:
And as far as Mr. Smith's credibility, I want to mention something else that I think shows he clearly was embellishing, clearly was exaggerating, and he was undercutting his own credibility.

[00:12:50] Speaker 02:
He claimed for the first time at the hearing that Mr. Wambacher had taken a knife or a box cutter and put it to his throat.

[00:12:57] Speaker 02:
He didn't say that to the Virgin Island Police Department.

[00:12:59] Speaker 01:
What is your best legal support for why you should remand for mitigation?

[00:13:04] Speaker 02:
Well, first of all, on the issues of the credibility determinations, I would

[00:13:12] Speaker 02:
you have in the McGuffin versus Social Security Administration case, where you've made it clear that the, that's cited in our brief at page 26, you've made clear that the board can't insulate its credibility findings from review simply by calling them credibility findings.

[00:13:31] Speaker 02:
But as to the point about the other claim by Mr.

[00:13:35] Speaker 02:
Smith that a knife had been put in front of his neck in full view of everyone else.

[00:13:41] Speaker 02:
He had never said that before, not to the police department, not to the Office of the Inspector General.

[00:13:45] Speaker 02:
And he didn't put it in his own report the next day.

[00:13:48] Speaker 02:
So my point is that there's no doubt in my mind that having a gun pointed at him, which apparently happened after Mr. Marr fled the scene after he got beat.

[00:13:58] Speaker 03:
Mr. Granger, you're pretty deep in your rebuttal.

[00:14:00] Speaker 03:
Do you want to save it?

[00:14:02] Speaker 02:
Oh, I thought I had been a 20 on my main.

[00:14:04] Speaker 02:
I apologize.

[00:14:08] Speaker 02:
Thank you for saving me.

[00:14:26] Speaker 00:
The opponent is attempting to re litigate credibility determinations and factual findings made by the fact finder below.

[00:14:35] Speaker 00:
Which is virtually unreviewable by this court unless he's able to show that those factual findings are inherently improbable.

[00:14:44] Speaker 00:
or contradicted by undisputed fact, neither of which he has done here.

[00:14:52] Speaker 03:
Thus the- Does it come down to the word of Captain Smith versus the word of Mr. Marra?

[00:14:58] Speaker 00:
No, Your Honor, I don't believe so.

[00:14:59] Speaker 00:
So if we look at the challenge to the physical altercation.

[00:15:07] Speaker 03:
Let's just focus on the racial slur matter.

[00:15:10] Speaker 03:
Yeah, sure.

[00:15:10] Speaker 03:
Because that's the only thing that was really explored in the opening argument.

[00:15:13] Speaker 00:
Yes, Your Honor.

[00:15:14] Speaker 00:
So Captain Smith does provide multiple statements as to what was said, but also Mr. Nolasco Guerrero also was standing nearby and described the statements made by the appellant.

[00:15:32] Speaker 03:
Was he standing nearby?

[00:15:34] Speaker 00:
It's my understanding from the statements, Your Honor, that he was relatively near Captain Smith at the time.

[00:15:42] Speaker 03:
How near do you think that was?

[00:15:43] Speaker 03:
Was that 110 feet?

[00:15:44] Speaker 03:
No, Your Honor.

[00:15:47] Speaker 00:
I believe that that was Mr. Krieger and Mr. Serrano, who was further down the dock.

[00:15:52] Speaker 04:
Didn't it take Nelosco Guerrero some months, though, before he tagged Mr. Mara as one who made racial slurs?

[00:16:01] Speaker 04:
I don't think that came up in the immediate day after the statement did it.

[00:16:06] Speaker 00:
I believe that it was made to the OIG investigator.

[00:16:13] Speaker 04:
Which is not the day of or day after.

[00:16:15] Speaker 00:
It was not, Your Honor.

[00:16:17] Speaker 00:
However, there's been provided no evidence that Mr. Nolasco Guerrero is not a reliable witness.

[00:16:23] Speaker 00:
he corroborates what Captain Smith says.

[00:16:26] Speaker 00:
Also, Amber Smith, who was at the ticket counter, initially reported that the appellant made vulgar comments.

[00:16:34] Speaker 00:
She didn't specify as to the nature of those.

[00:16:37] Speaker 00:
She didn't recall the specific language used, but she did recall him using vulgar language towards Captain Smith.

[00:16:45] Speaker 01:
A policy counsel said that Mr. Wambacher was the only one in a gracious way, so he was some type of

[00:16:52] Speaker 01:
hear a phrase to that effect.

[00:16:53] Speaker 01:
Can you respond to that?

[00:16:54] Speaker 00:
Your Honor, I would disagree with that characterization.

[00:16:56] Speaker 00:
And I don't believe that any of the witnesses state that he was the only one.

[00:17:00] Speaker 00:
There are several witnesses that did say that they heard Mr. Wambacher make those statements.

[00:17:06] Speaker 00:
But none of the witnesses said, I heard everything that was said on that doc.

[00:17:10] Speaker 00:
And I did not hear the appellant use

[00:17:14] Speaker 00:
use racial slurs.

[00:17:17] Speaker 00:
So as the decision-maker, Mr. Chief Sedote, described in his testimony, there was a lot going on in the dock, and it would be surprising to him if everybody could have heard the entire conversation going on.

[00:17:35] Speaker 00:
Opposing counsel brought up that Miss Powell Charles said that she didn't hear anything and she was close by, except she testified that she had her back turned.

[00:17:47] Speaker 00:
She was engaging in other customers, just giving security briefings.

[00:17:53] Speaker 00:
There was multiple times throughout the incident where she was calling 911.

[00:17:57] Speaker 00:
And so she didn't necessarily hear everything that was going on.

[00:18:02] Speaker 00:
Even that being said, even if Mr. Smith, or Captain Smith, was the only witness, that is sufficient to sustain the specification.

[00:18:11] Speaker 00:
The fact finder determined, and specifically stated, they found Captain Smith to be credible.

[00:18:18] Speaker 00:
He provided a statement the very next day to Varlic Ventures.

[00:18:21] Speaker 00:
His employer, he then provided a statement to Virgin Island Police Department.

[00:18:25] Speaker 00:
He then provided a statement to OIG.

[00:18:28] Speaker 00:
He then testified at the hearing.

[00:18:30] Speaker 00:
And the administrative judge found that his testimony was credible and consistent.

[00:18:38] Speaker 00:
The appellant has not provided any evidence to show that Captain Smith's testimony is inherently improbable or contradicted by undisputed fact.

[00:18:51] Speaker 00:
The same goes for the physical altercation.

[00:18:56] Speaker 00:
The appellant challenges whether there was substantial evidence to support that charge.

[00:19:00] Speaker 00:
And in that instance, there's at least four witnesses who have provided statements as to how the physical altercation transpired.

[00:19:11] Speaker 00:
Captain Smith describes the appellant pushing through the security gate into the secure area and pushing Captain Smith.

[00:19:20] Speaker 00:
Mr. Nolasco Guerrero also describes Captain Smith shoving, or the appellant shoving Captain Smith.

[00:19:28] Speaker 00:
Mr. Krueger and Mr. Serrano also see this pushing of Captain Smith and run to assist, trying to push him out of the secure area, and then the fist fight ensues.

[00:19:40] Speaker 04:
What did the administrative judge find that Mr. Marra did with respect to a fiscal altercation?

[00:19:47] Speaker 00:
I believe, Your Honor, the administrative judge found that he believed Captain Smith's testimony to be credible that the appellant was the instigator of the physical altercation.

[00:20:00] Speaker 04:
I'm not sure that I saw an actual factual finding by the administrative judge as to what Mr. Maher did in connection with the physical altercation.

[00:20:10] Speaker 04:
Can you point to anywhere where the judge made a determination on that point?

[00:20:16] Speaker 00:
Your Honor, I don't have an information.

[00:20:18] Speaker 00:
I don't believe that he specifically articulated the sequence of how he

[00:20:25] Speaker 00:
saw the attack go down, but that he found that Mr. Smith's testimony on it was credible.

[00:20:31] Speaker 04:
You would say it's implied by finding Captain Smith's testimony credible that it's a finding that it happened the way Captain Smith said?

[00:20:39] Speaker 04:
That's how we should read it in your view?

[00:20:41] Speaker 00:
Yes, Your Honor.

[00:20:44] Speaker 00:
The substantial evidence in the record supports the finding that the appellant engaged in a physical altercation, which amounted to conduct on becoming of a US Marshal.

[00:20:56] Speaker 00:
And the appellant has not pointed to evidence that make the testimony of these four witnesses inherently improbable or contradicted by undisputed fact.

[00:21:11] Speaker 00:
In regards to the issue of self-defense raised by the appellant, this was considered by the board.

[00:21:19] Speaker 00:
And the board found that the appellant failed in his burden to raise facts that amounted to self-defense.

[00:21:28] Speaker 00:
And the board properly determined that self-defense was not applicable in this case.

[00:21:34] Speaker 01:
Did the administrative judge fail to address Mr. Myers' self-defense claim?

[00:21:40] Speaker 00:
Your Honor, the administrative judge doesn't discuss his defense of self-defense in their opinion.

[00:21:46] Speaker 00:
So it's unclear as to what extent the administrative judge

[00:21:55] Speaker 00:
considered it.

[00:21:56] Speaker 00:
However, the administrative judge found that Captain Smith and the other witnesses' testimony to be credible, which contradicts the appellant's position that he was not the provoker.

[00:22:08] Speaker 00:
Even that being said, even if the court were to find that the administrative judge improperly didn't consider the self-defense, the self-defense was considered by the board.

[00:22:18] Speaker 00:
And the board determined that the appellant

[00:22:22] Speaker 00:
did not provide facts that supported self-defense.

[00:22:28] Speaker 04:
Hypothetically, if one were to credit Mr. Merrick's own telling of events, would there be room for a self-defense, affirmative defense here?

[00:22:41] Speaker 04:
I know the board didn't credit Mr. Merrick, but I'm wondering if even if you did, is self-defense still dispositive here?

[00:22:49] Speaker 00:
I believe that self-defense could go to whether it was reasonable.

[00:22:54] Speaker 00:
So it was probably more for mitigation.

[00:22:57] Speaker 00:
But that's not to say that the fact finder would not have substantiated the specification if they found that he was acting reasonably in his own self-defense.

[00:23:07] Speaker 00:
So I think the shorter answer, Your Honor, is that the government would say self-defense is an available defense to be appellant before the MSPB if he was able to prove it.

[00:23:23] Speaker 00:
But as I mentioned, the appellant failed to prove these facts to support a self-defense in this case.

[00:23:30] Speaker 00:
Finally, the board considered all relevant factors when determining the penalty of removal was reasonable, including that the appellant was still greeting his spouse, the nature of this misconduct, the fact that this misconduct was within 17 months of other alcohol, serious alcohol-related misconduct in which the appellant

[00:23:49] Speaker 00:
at three times the legal limit and crashed into a city bus.

[00:23:53] Speaker 00:
They considered his nine years of good service the embarrassment that this incident brought upon the agency and he also considered the penalty table and the fact that this was the first offense of conduct on becoming.

[00:24:10] Speaker 00:
The decision is within the sole discretion of an administrative judge and it's also virtually unreviewable by this court.

[00:24:16] Speaker 00:
An appellant has not raised any facts to

[00:24:19] Speaker 00:
for this court not to give that deference.

[00:24:26] Speaker 00:
Unless the court has any other questions.

[00:24:28] Speaker 00:
For the foregoing reasons, we ask the court to affirm the decision.

[00:24:38] Speaker 02:
Mr. Ranger, you have two minutes.

[00:24:40] Speaker 02:
Thank you, Your Honor.

[00:24:41] Speaker 02:
First of all, not a word from agency counsel about the new claims at the hearing by Captain Smith that there was yelling of racial slurs from the end of the dock.

[00:24:52] Speaker 02:
Not a word about the new claim not corroborated by anyone that Mr. Wambach had put a knife to his throat.

[00:24:59] Speaker 02:
So in answer to the question from Judge Chen,

[00:25:03] Speaker 02:
Yeah, I think this really does come down to Captain Smith's testimony.

[00:25:07] Speaker 02:
As far as Mr. Nolasco Guerrero, agency counsel is mistaken.

[00:25:11] Speaker 02:
At appendix 943 to 944, Captain Smith says it was Serrano who was standing next to him.

[00:25:18] Speaker 02:
And that Mr. Nolasco Guerrero, Mr. Crider came running from.

[00:25:22] Speaker 02:
And the 110 feet, Judge Starker invented appendix at 932 to 33.

[00:25:30] Speaker 02:
So the captain makes it clear that Mr. Nolasco Guerrero is down at the end of the dock.

[00:25:34] Speaker 02:
And it's not until December, four months later, that Mr. Nolasco Guerrero, for the first time, makes a claim that Mr. Mano had made a racial slur.

[00:25:45] Speaker 02:
Amber Smith, yeah, she's ambiguous in her statement to the Virgin Islands Police Department.

[00:25:49] Speaker 02:
She hears vulgarities.

[00:25:50] Speaker 02:
She hears all sorts of things.

[00:25:52] Speaker 02:
When she's interviewed by OAG, she says, Mr. Wambacher.

[00:25:55] Speaker 02:
And again, I submit to you, Your Honor, is that it's common sense.

[00:25:58] Speaker 02:
If someone is going to make a point of saying a racial slur was used and they identify one person, they're going to say if the other person did.

[00:26:06] Speaker 04:
That may be common sense, but isn't your burden to show us that what the board said to the contrary is not common sense?

[00:26:12] Speaker 02:
Well, multiple interpretations are available.

[00:26:16] Speaker 02:
Appreciate the question.

[00:26:17] Speaker 02:
Our agency council says that the credibility determinations are virtually unreal.

[00:26:21] Speaker 02:
But that's not the standard.

[00:26:23] Speaker 02:
If there's a case where the objective evidence in the record is hearsay statements, which the agency chose to align, the agency had access to these witnesses.

[00:26:33] Speaker 02:
The agency didn't call them.

[00:26:35] Speaker 02:
Five witnesses contradict their only witness, their only fact witness.

[00:26:41] Speaker 02:
I see I'm running out of time.

[00:26:44] Speaker 02:
Your honor, I would just add with respect to the self-defense claim, if nothing else, it's part of the Douglas analysis.

[00:26:55] Speaker 02:
Provocation by another party is something that the court can consider.

[00:26:59] Speaker 02:
And I think there's plenty on this record to amend for mitigation of that.

[00:27:04] Speaker 02:
Thank you for your time.

[00:27:05] Speaker 02:
Thank you very much.