The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
Defendant Martin Padilla is charged in a violation notice with shouting and screaming at Domiciliary staff, using profanity in violation of 38 CFR 1.218(a)(5).*fn1 The case was tried to the court on March 25, 2010. For reasons stated below I conclude that the government has met its burden of proof and therefore find the defendant guilty.
On November 23, 2010, Martin Padilla, a Viet Nam veteran, was enrolled in a program operated at a residential facility of the United States Veterans Administration (VA) in Anchorage, Alaska. The VA provides a work program for homeless veterans who have substance abuse or mental health problems. Padilla was a rec assistant in the front domiciliary building. This was not his first time participating in the program.
David Gay, a vocational rehabilitation specialists, was in charge of the workshop at the VA facility. In the workshop participants make wood products such as furniture using tools and equipment. Padilla was not assigned to the work shop nor was he allowed to be there.
On November 23, 2010, Mr. Gay heard loud voices coming from the workshop. He proceeded to the workshop where he observed Padilla talking in a loud voice with a shop worker, Gabe Harmon. The conversation was about the way people are treated at the VA facility and their appointments are frequently cancelled. Mr. Gay approached and said they were talking too loudly. Mr. Gay also said that Padilla would need to leave the break room. Padilla responded: "In a minute." Mr. Gay said: "No, now."
Padilla started walking toward the break room. Gay went after him and asked where he was going. Padilla said: "You know what I'm doing, I'm gonna clean the fish tank." Gay said: "Not in here, because this is where we get our drinking water and food." Yelling, Padilla said he was going to clean the f***ing fish tank. Gay said that he was going to call the VA police. Padilla, responded: "I don't care, call the f***ing police." Gay walked toward the door to call the police. Padilla started to follow him pointing his walking stick at Gay.
Melinda Lou Loyst, a vocational rehab specialists heard loud voices down the hall. She walked toward the break room and then concluded everything was alright. She started to leave but because she perceived one of the persons was mad she decided to go back to the break room and check on it. When she opened the door she witnessed Padilla pointing or jabbing his stick toward Mr. Gay. Loyst stated "I saw the whole thing." Padilla swung the stick around and pointed it at her. He yelled: "Keep out of this you f***ing bitch." Gay went to his office, pushed the panic alarm, and then telephoned the VA police. The director arrived and he and Padilla went to the Director's office. Shortly thereafter the VA police arrived and interviewed persons involved in the incident.
Mr. Gay testified that he called the VA police because Padilla had a "behavioral flag" on his record. Gay claimed that he felt intimidated when Padilla had raised his stick but that Padilla never said that he would hit anyone with the stick. It is undisputed that Padilla had been upset with Gay in the past.
Ms. Loyst testified that in the past when Padilla gets upset he raises his voice. She said this happens a couple times a week. The difference this time from past occasions, in her opinion, was Padilla jabbing the stick toward Mr. Gay. Padilla had been transferred off and on to her case management list several times in the past because of behavioral problems.
Veterans Affairs (VA) officer James Paul Corso Jr, testified that a warning is sometimes issued instead of a ticket depending on how the person perceives the incident. He stated that a ticket was issued for this incident because of the defendant's previous problems at the VA facility. The officer said he was briefed by Mr. Gay who told him what he wanted done.
Ms. Loyst stated that the defendant's continued use of abusive language for eight months was the reason she wanted the incident reported to the VA police. The ticket was not issued for any threatening use with the stick. It is part of the contract between the participant and the VA facility that the resident not use profanity. ...