UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER LICENSE

and

MERCHANT MARINER DOCUMENT

Issued to: JACK ANTHONY JORY

DECISION OF THE

COMMANDANT

ON APPEAL

NO. 269 1

This appeal is taken in accordance with 46 U.S.c. § 7701 et seq., 46 C.F.R. Part 5

and the procedures set forth in 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "D&O) dated December 5,2008, Judge

Bruce T. Smith, an Administrative Law Judge (hereinafter "ALJ") ofthe United States

Coast Guard at Mobile, Alabama, revoked the Merchant Mariner Credentials ofMr. Jack

Anthony Jory (hereinafter "Respondent") upon finding that the Coast Guard proved, by

substantial evidence, that Respondent was a security risk that posed a threat to the safety

or security of a vessel. The factual allegations supporting the Coast Guard's charge

allege that "[o]n November 3,2008, the Respondent did threaten the life ofJeff

Cunningham, Master ofthe MN SEA FOX.. .in violation of 46 USCA 7703(5)."

FACTS AND PROCEDURE

At all times relevant herein, Respondent was the holder ofthe Coast Guard issued

Merchant Mariner Credentials at issue here. [D&O at 3; Coast Guard Exhibit I]
lORY No·2691

On and before November 3, 2008, Respondent was employed by Global

Industries Offshore, LLC (hereinafter "Global") as an able seaman aboard the MN SEA

FOX. [D&O at 3; Transcript (hereinafter "Tr.") at 22] The vessel was, at all relevant

times, operating in the Gulf ofMexico under the command ofJeff Cunningham, who

served as the master and security officer. [D&O at 3; Tr. at 20, 22] Before going off

shift on November 3, 2008, Captain Cunningham informed Respondent that, due to

expected higher seas and changes to direction ofthe vessel, the anchors might bang

against the guard; he instructed Respondent to keep an eye on the ratchet binder to assure

that it remained tight. [D&O at 3-4; Tr. at 26-27] At approximately 3:00 a.m., Captain

Cunningham was awakened by an anchor loudly banging. [D&O at 4; Tr. at 27] He

relayed instructions for Respondent to tighten the anchor line, but handled the task

himself after Respondent radioed that he was having trouble finding a cheater bar. [D&O

at 4; Tr. at 27] Thereafter, Captain Cunningham left the deck and later wrote a

disciplinary report regarding Respondent's actions. [Id.]

A confrontation occurred when Captain Cunningham found Respondent in the

galley and asked him to read and sign the report. [D&O at 4; Tr. at 27-31] Respondent

responded with profanity and refused to read and sign the paper. [Id.] As Captain

Cunningham turned to leave, Respondent lunged at him and tried to grab the paper,

causing a pen to fall from his hand. [Id.] When Captain Cunningham admonished him

about this behavior, Respondent answered with a belittling remark. [Tr. 30]

Captain Cunningham notified the relevant Global personnel ofRespondent's

behavior. [D&O at 5; Tr. at 30, 67-69; Coast Guard Exhibit 6] Upon receiving

instructions from Global, Captain Cunningham informed Respondent that he was relieved

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lORY No. 2691

of duty and confined to quarters and that he would be put offthe vessel as soon as

possible. [D&O at 5; Tr. at 30-31] In response, Respondent refused and stated that

Captain Cunningham "better never cross my path" or "I will kill you," adding "maybe

not on the boat, but ifI ever see you on land I will kill you." [D&O at 5; Tr. at 31]

The Coast Guard filed its Complaint, seeking temporary suspension of

Respondent's mariner credentials, on November 3,2008. [D&O at 2] Because the Coast

Guard issued its Complaint under the temporary suspension provisions of 46 U.S.C. §

7702(d), it was authorized to immediately "take possession" ofRespondent's mariner

credentials "for not more than 45 days." See 46 U.S.C. § 7702(d)(I).

The Coast Guard's Complaint, which was amended for technical reasons, alleged

that on November 3,2008, Respondent threatened the life ofJeff Cunningham, Master of

MN SEA FOX, in violation of 46 U.S.C. §7703(5). [Amended Complaint at 2] On

November 6, 2008, an expedited pre-hearing conference was conducted with the parties,

pursuant to 33 C.F.R. §20.1207. [D&O at 2] At the conference, Respondent was advised

ofhis rights, including his right to counsel, to have witnesses and documents subpoenaed,

and to obtain discovery from the Coast Guard. [Id.] Thereafter, the ALJ issued an order

scheduling the hearing and setting a deadline for discovery, which was in accordance

with the time limits specified in 33 C.F.R. § 20.l207(e)(I)(2). [D&O at 2; Memorandum

of Pre-Hearing Telephone Conference and Scheduling Order at 3]

The hearing in the matter was convened on November 20,2008, in Mobile,

Alabama [D&O at 2] During the hearing, the Coast Guard offered the testimony ofthree

witnesses and entered eight exhibits into the record. In addition to testifying on his own

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JORY

behalf, Respondent offered the testimony oftwo witnesses and entered one exhibit into

the record. The ALl's D&O was entered on December 5,2008.

On December 15, 2008, Respondent timely filed a "Notice ofAppeal" and a

"Motion to Stay the Order for Revocation." On February 3,2009, Respondent filed a

timely Appeal Brief. The Coast Guard did not offer a reply. Accordingly, this appeal is

properly before me.

APPEARANCE: Respondent appeared pro se. The Coast Guard spokespersons

were Mr. Robert W. Foster and LT Beth Gregorich of U.S. Coast Guard Sector Mobile,

Alabama.

BASES OF APPEAL

Respondent appeals the ALl's Order revoking his mariner credentials.

Respondent's twenty-seven page Appeal Brief, submitted pro se, raises various issues

that are, at times, difficult to distinguish, irrelevant, and repetitive. A prior Commandant

Decision on appeal makes clear that "[w]hen acting on an appeal from an agency

decision, the agency has all the powers which it would have in making the initial

decision." See Appeal Decision 2610 (BENNETT) citing 5 U.S.C. § 557(b). Moreover,

one ofthe powers ofthe agency "includes the exclusion ofirrelevant, immaterial or

unduly repetitious evidence." Id. citing 5 U.S.C. § 556, 46 C.F.R. § 5.537 and Fed. R.

Evid. 402-403. Any other issues, points of discussion, or questions raised by

Respondent, not enumerated below, are deemed immaterial, irrelevant or unduly

repetitious and are hereby denied. Acccordingly, Respondent's assignments of error are

summarized as follows:

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lORY No. 2691

I. The ALJ erred in finding that Respondent committed an assault and,

because Respondent was not charged with an assault on the

Complaint, Respondent had no notice ofthe alleged violation;

II. The ALJ erred in relying onfalse testimony (perjury) in

reaching his decision in the case;

III. The ALJ erred in failing to grant a subpoena to a witness

who could corroborate Respondent's version ofthe incident;

IV The ALJ erred in allowing Respondent's mariner credentials to be

temporarily suspended on "security risk" grounds because such

action is not authorized under the applicable Coast Guard

regulations;

V The ALJ erred in applying 46 Us.c. § 7702 to Respondent because

the statute's "security risk" provision should only be applied to

terrorist activities; and

VI. The ALJ erred in broadly interpreting the "security risk" portion of

46 Us. C. § 7702.

OPINION

Standard ofReview

On appeal, a party may challenge whether each finding of fact rests on substantial

evidence, whether each conclusion oflaw accords with applicable law, precedent, and

public policy, and whether the AU committed any abuses of discretion. See 46 C.F.R. §

5.701 and 33 C.F.R § 20.1001. "Under the governing standard ofreview on appeal, great

deference is given to the ALl in evaluating and weighing the evidence." Appeal

Decision 2685 (MATT). "The ALl is the arbiter of facts" and it is "his duty to evaluate

the testimony and evidence presented at the hearing." Appeal Decision 2610

(BENNETT). Under governing precedent, "the findings offact ofthe ALl are upheld

unless they are shown to be arbitrary and capricious or there is a showing that they are

clearly erroneous." Appeal Decision 2610 (BENNETT) citing Appeal Decisions 2557

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lORY No. 2691

(FRANCIS), 2452 (MORGRANDE) and 2332 (LORENZ). Moreover, "the ALJ is vested

with broad discretion in making detenninations regarding the credibility of witnesses and

in resolving inconsistencies in the evidence." Appeal Decision 2639 (HAUCK) citing

Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2516

(ESTRADA), 2503 (MOULDS), 2492 (RATH) and 2614 (WALLENSTEIN). See also

2628 (VILAS) ("Ifthe AU's findings are supported by reliable, credible evidence, they

will be upheld because he saw and heard the witnesses, even ifthere was evidence on

which he (or I sitting in his stead) might reach a contrary conclusion. Stated another way,

I will not substitute my findings offact for the ALl's unless the AU's [findings] are

arbitrary and capricious."). "The findings ofthe AU need not be consistent with all

evidentiary material in the record as long as there is sufficient material in the record to

support their justification." See Appeal Decision 2685 (MATT) citing Appeal Decisions

2395 (LAMBERT) and 2282 (LITTLEFIELD).

I.

The ALJ erred in finding that Respondent committed an assault and, because Respondent

was not charged with an assault in the Complaint, Respondent had no notice ofthe

alleged violation.

The first issue presented is whether there is substantial evidence in the record to

support the ALl's conclusion that Respondent assaulted the SEA FOX's master.

Respondent takes issue with the ALl's ultimate finding of fact that "Respondent did

assault his ship's Master, Captain Jeff Cunningham, by lunging at him while trying to

grab a paper out ofCaptain Cunningham's hand and thus striking his Captain's hand."

[D&O at 13]

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lORY No. 269 1

Under governing precedent, "the findings of fact ofthe AU are upheld unless

they are shown to be arbitrary and capricious or there is a showing that they are clearly

erroneous." Appeal Decision 2610 (BENNETT) citing Appeal Decisions 2557

(FRANCIS), 2452 (MORGRANDE) and 2332 (LORENZ).

In this case, the ALJ after hearing the testimony ofthe witnesses, found

substantial evidence to support a conclusion that Respondent committed an assault. In

these proceedings, an "assault" occurs when a mariner puts another person "in

apprehension of harm when there is the apparent present ability to inflict injury whether

or not the actor actually intends to inflict or is capable ofinflicting harm." See Appeal

Decision 2198 (HOWELL) citing Appeal Decision 1218 (NOMIKOS).

The evidence in the record, including the testimony ofCaptain Cunningham,

supports the ALl's conclusion that the incident constituted an assault. Indeed, Captain

Cunningham testified as follows with regard to the incidents aboard the SEA FOX:

I went and took care ofsome paperwork and wrote out a

disciplinary report and went down to the galley, where Jack was, and I

held it out for him and asked him to read and sign it. His response was

f*** you. I ain't signing nothing. I said well, okay, I'll write on here

refused to sign.

I turned around to go back up to the wheelhouse and he lunged at

me, trying to grab the paper out ofmy hand. He actually knocked my

hand down and back and the pen came out ofmy hand, but the paper

didn't.

[Tr. at 29] A review ofthe record shows that, in finding that Respondent committed an

assault, the AU expressly found "Captain Cunningham's testimony to be credible."

[D&O at 10] Given the evidence contained in the record and the great deference

accorded to an ALl's findings offact, the ALJ was not arbitrary, capricious, or clearly

erroneous in finding that Respondent committed an assault.

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lORY No. 269 1

Respondent further contends that because the Complaint in the case did not allege

that an assault occurred, Respondent's due process rights were violated because he was

not afforded the opportunity to fully develop a defense to the Coast Guard's allegations.

I do not agree.

While the record shows that the factual allegations ofthe Coast Guard's

complaint did not charge assault, a review ofthe specification shows that it provided

Respondent with a clear and unmistakable picture ofthe events surrounding the charged

violation. In these proceedings, ifRespondent was fairly apprised that his conduct would

be held against him, and ifhe was then permitted a fair opportunity to defend himself, he

cannot now claim that he has been denied due process. See Appeal Decision 2152

(MAGIE) citing Kuhn v. Civil Aeronautics Ed., 183 F.2d 839 (D.C. Cir 1950).

Moreover, "[f]indings that lead to the suspension or revocation of a...[license]... can be

made without regard to the framing ofthe original specification as long as the Appellant

has actual notice and the questions are litigated." Appeal Decision 2608 (SHEPHERD)

citing Kuhn, supra and Appeal Decisions 2578 (CALLAHAN), 2545 (JARDIN), 2422

(GIBBONS), 2416 (MOORE) and 1792 (PHILLIPS).

The record shows that Respondent was informed ofthe events surrounding the

incident throughout the course ofthese proceedings. In fact, the Coast Guard's witness

and exhibit list, which was provided to Respondent as part ofthe discovery process,

contained a disciplinary report for Respondent (subsequently entered into the record as

Coast Guard Exhibit 6) that fully explained the circumstances surrounding the incident.

Notably, the report expressly stated that after Respondent refused to sign his write up,

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JORY No. 269 1

Respondent "attempted to tear it out" ofCaptain Cunningham's hand. See Coast Guard

Exhibit 6.

The record further shows that the events constituting the assault-Respondent

lunging at Captain Cunningham-were litigated throughout the course ofthe hearing. As

support for the allegation, the Coast Guard offered the testimony ofCaptain Cunningham

which, as has already been discussed herein, described the manner in which Respondent

lunged at him. The record shows that Respondent actively cross-examined Captain

Cunningham. In this respect, the record shows that Respondent was aware ofthe relevant

allegations and that he was prepared to defend against them. Accordingly, Respondent's

first assignment of error is not persuasive.

II.

The AUerred in relying onfalse testimony (perjury) in reaching his decision in the case.

On appeal, Respondent insists that Captain Cunningham not only lied on the

witness stand, but also that he lied in his correspondence discussing the incident with

Global. [Respondent's Appeal Brief at 5-6] Respondent specifically argues that Captain

Cunningham lied about the incidents leading to the ALl's determination that an assault

occurred. In so doing, Respondent questions the ALl's credibility determination with

regard to Captain Cunningham.

"The Administrative Law Judge is vested with broad discretion in making

determinations regarding the credibility of witnesses and in resolving inconsistencies in

the evidence." Appeal Decision 2519 (JEPSON). This is because "[t]he Administrative

Law Judge as the presiding official at the hearing can fully observe the response,

character and demeanor ofthe witness in issue." Appeal Decision 2519 (JEPSON) citing

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lORY No. 269 1

Appeal Decisions 2516 (ESTRADA), 2503 (MOULDS), 2492 (RATH), 2474

(CARMIENKE), 2472 (GARDNER), 2212 (LAWSON), and 2052 (NELSON).

Therefore, "appellate review ofthis type is limited in scope. Absent a clear showing of

arbitrary and capricious action by the trier offact concerning this issue, his determination

will not be disturbed." Appeal Decision 2159 (MILICI). As has already been discussed

herein, the ALJ found Captain Cunningham to be a credible witness after carefully

reviewing his testimony. The AU's determination as to Captain Cunningham's

credibility was reasonable and within his discretion. Therefore, the AU's finding to that

end will not be disturbed here.

III.

The AUerred in failing to grant a subpoena to a witness who could corroborate

Respondent's version ofthe incident.

On appeal, Respondent argues that the ALJ erred in refusing to grant a subpoena

that Respondent requested on January 20, 2009, more than one month after the ALl's

D&O was issued. Respondent avers that he could not "defend against a lie" and that he

was prejudiced by the AU's refusal to grant the subpoena because he "did not have a

proper opportunity to answer or obtain the evidence...[that he needed] ...to counter

and/or prove" that Captain Cunningham was lying. [Respondent's Appeal Brief at 8]

Respondent's assertion to this end is unpersuasive.

Pursuant to 33 C.F.R. § 20.902, the AU's decision is issued after the record is

closed. In this case, the record was closed on December 5,2008, when the ALl issued

his D&O. Respondent requested issuance of a subpoena to the SEA FOX's cook on

January 20,2009, more than one month after the record was closed. Under the applicable

regulations, "[a]ny party may request the ALJ to issue a subpoena for the attendance of a

10
lORY No. 269 1

person, the giving of testimony, or the production of books, papers, documents, or any

other relevant evidence during discovery orfor any hearing." 33 C.F.R. § 20.608(a)

(emphasis added). Since the subpoena that Respondent requested was not sought "during

discovery" or "for any hearing," the AU did not err in refusing to grant the subpoena. It

is worth noting that the record shows that while the case was pending before the AU

several subpoenas were properly issued on Respondent's behalf. In any event, the record

shows that Respondent was, via the Coast Guard's witness and exhibit list, informed that

Captain Cunningham would testify at the hearing. The Coast Guard's witness and exhibit

list further informed Respondent ofthe general nature ofthe Captain's expected

testimony. Prior to the hearing, Respondent did not request that any rebuttal witnesses be

called on his behalf, even though he was aware of the nature ofCaptain Cunningham's

expected testimony. The record further shows that even though Respondent actively

cross-examined Captain Cunningham, he made no request for rebuttal testimony during

the hearing. As such, Respondent's arguments regarding a perceived inability to present

rebuttal evidence are simply not persuasive.

IV.

The ALJ erred in allowing Respondent's mariner credentials to be temporarily suspended

on "security risk" grounds because such action is not authorized under the applicable

Coast Guard regulations.

Respondent's next assignment of error concerns the charge at issue in this

proceeding. Respondent correctly points to a distinction between the grounds for

temporary suspension listed in 46 U.S.c. § 7702, the statute that governs temporary

suspensions ofmerchant mariner credentials, and the grounds for suspension listed in 33

C.F.R. § 20.1201, the Coast Guard regulation that applies that statute. 46 U.S.C. §

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lORY

7702(d)(1 )(iv) pennits the Coast Guard to suspend a mariner credential without a hearing

for 45 days ifthe individual perfonns a safety function on a vessel and probable cause

exists to believe he is a security risk that poses a threat to the safety or security of a

vessel. 33 C.F.R. § 20.1201, however, does not include a clause that allows the Coast

Guard to temporarily suspend a mariner credential for being a security risk. Respondent

thus questions how the Coast Guard could charge him with being a "security risk" when

the governing regulation does not include that as a possible ground for suspension or

revocation action.

Respondent's argument fails ifthe relevant portion of 46 U.S.C. § 7702 is selfexecuting. A self-executing statute does not require regulatory implementation. See us.

v. Paul, 23 F.3d 365,367 (11 th Cir. 1994) (The plain language ofthe statute and its

legislative history make clear that it is a self-executing statute, requiring no regulatory

implementation); Geneva Inv. Co. v. City a/St. Louis, 87 F.2d 83,89 (8th Cir. 1937)

(statutory provision is complete in itself, needs no legislation to put it in force, and,

hence, is self-executing). Self-executing statutes may be analogized to self-executing

constitutional provisions; As the Supreme Court stated:

Where a constitutional provision is complete in itselfit needs no further

legislation to put it in force. When it lays down certain general

principles.. .it may need more specific legislation to make it operative. In

other words, it is self-executing only so far as it is susceptible of

execution. But where a constitution asserts a certain right, or lays down a

certain principle oflaw or procedure, it speaks for the entire people as

their supreme law, and is full authority for all that is done in pursuance of

its provision. In short, if complete in itself, it executes itself.

Davis v. Burke, 179 U.S. 399, 403 (1900).

Self-executing statutes may also be analogized to self-executing treaties. "What

we mean by 'self-executing' is that the treaty has automatic domestic effect as federal

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lORY

law upon ratification." Medellin v. Texas, 128 S.Ct. 1346, 1356 n.2 (2008). "Selfexecuting treaties do not require implementing legislation and become effective as

domestic law immediately upon entry into force." ITC Ltd. v. Punchgini, Inc.,482 F.3d

135, 161 n.21 (2d Cir.2007).

A review ofthe plain language ofthe 46 U.S.c. § 7702(d) supports a conclusion

that the statute is self-executing; action can be taken under the statute without

implementing regulations because the statute is complete in and of itself. Therefore,

Respondent's assignment of error is not persuasive.

v.

The AUerred in applying 46 Us. C. § 7702 to Respondent because the statute's

"security risk" provision should only be applied to terrorist activities.

Citing portions ofthe legislative history ofthe Coast Guard and Maritime

Transportation Act of 2004 (hereinafter "the Act"), Respondent asserts that the Act, and

any provision enacted through it, was intended solely to combat terrorism. As a

consequence, Respondent contends that the All erred in finding that Respondent posed a

security risk to a vessel because there is no evidence in the record to suggest that

Respondent was a terrorist or that he committed acts ofterrorism. I do not agree with

Respondent's interpretation ofthe intent ofthe Act.

While the Act broadens the Coast Guard's authorities with regard to maritime

transportation security, it also contains numerous provisions that are not related to either

terrorism or maritime security, such as provisions to make appropriations to the Coast

Guard and provisions addressing Coast Guard management. See Pub. L. 108-293, 118

Stat. 1028. On appeal, Respondent cites a Federal Register Notice to support his

contention that the Act was enacted solely to prevent terrorism. See Implementation of

13
JORY

National Maritime Security Initiatives, 68 Fed. Reg. 39,240-01 (July 1, 2003)(to be

codified at 33 C.F.R. pts. 101 and 102). Contrary to Respondent's contention, the Notice

does not address changes to Coast Guard suspension and revocation statutes; it solely

addresses regulations, at 33 C.F.R. Parts 101 and 102, that are meant to foster Coast

Guard maritime security initiatives. Moreover, a review ofthe comments that

Respondent cited in his closing briefshows that those comments were not made in

reference to the portions ofthe act which would be codified at 46 U.S.C.

§ 7702(d)(1 )(B)(iv). Rather, the comments citied by Respondent address general

concerns as to a perceived change in the Coast Guard's missions. See generally 149

Congo Rec. HI 0396 (daily ed. Nov. 5,2003). Accordingly, Respondent's assertion that

the Act was intended solely to combat terrorism is not persuasive.

VI.

The AUerred in broadly inte/preting the "security risk" portion of46 Us. C. § 7702.

The key issue presented is whether the ALl was correct in construing 46 U.S.C. §

7702(d)(1)(iv) broadly so as to support a conclusion that Respondent presented such a

security risk under the statute to warrant a temporary suspension of his mariner

credentials.

In addressing this issue, it is helpful to review court decisions regarding statutory

interpretation. The courts have held that in matters ofstatutory interpretation, in

discerning congressional intent, a court must start by looking to the plain language ofthe

statute. Lamie v. Us. Tr., 540 U.S. 526, 534 (2004). Furthermore, courts must "presume

that a legislature says in a statute what it means and means in a statute what it says there."

Connecticut National Bank v. Germain, 503 U.S. 249,253-54 (1992). Therefore, ifthe

14
lORY

terms ofthe statute are unambiguous, the "judicial inquiry is complete," and the court's

job is simply to enforce those terms. Id at 254. However, in so doing, the court must

look at the statute as a whole and not merely as individual isolated phrases. See United

States v. Morton, 467 U.S. 822, 828 (1984).

The statutory section at issue here, 46 U.S.c. § 7702(d)(1)(B)(iv), states, in

relevant part, as follows:

The Secretary may temporarily, for not more than 45 days, suspend and

take possession ofthe license...or merchant mariner's document held by

an individual if:

(A) that individual performs a safety sensitive function on a

vessel. .. and

(B) there is probable cause to believe that the individual-

(iv) is a security risk that poses a threat to the safety or

security of a vessel or a public or commercial structure

located within or adjacent to the marine environment.

A review ofthe applicable law and regulations shows that the tenn "security risk" is not

defined.

The AU addressed Respondent's argument with regard to the provision, as

follows:

Respondent's post-hearing submission raises the question ofwhether 46

U.S.C. § 7701, et seq. intends to define "security risk" as inclusive of

seamen aboard a marine vessel ...While no appellate case law construes

the phrase, I am confident that the term "security risk" broadly

encompasses a wide variety of contingencies defined by the Coast Guard,

tradition and law ofthe sea and by the Master's own judgment.

[D&O at 12] Under a plain language reading ofthe statute, the ALl did not err in

concluding that the term "security risk" encompasses more than just individuals who

15
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present a risk ofterrorism. It is consistent with the plain language ofthe statute and will

not be disturbed here.

CONCLUSION

The findings ofthe ALJ had a legally sufficient basis. The ALl's decision to

revoke Respondent's merchant mariner credentials was not arbitrary, capricious, or

clearly erroneous. Because competent, substantial, reliable, and probative evidence exists

to support the AU's decision to suspend the Respondent's merchant mariner credentials,

I am not persuaded by Respondent's bases of appeal.

ORDER

The order ofthe ALJ, dated December 5,2008, at New Orleans, Louisiana, is

AFFIRMED.

~II./~~Q~ VA)M l1-S_~G-~ VVVl) Yli~ U>\tYWy\~

Signed at Washington, D.C. this ;rJ.. day of Oe<:..-., 2010.

16