UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER LICENSE 

& 

MERCHANT MARINER DOCUMENT 

Issued to: EARL WAYNE MAXWELL 

APPEARANCES 

For the Government: 

Gary F. Ball, Esq. 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 

26 9 9 

CWO Carol Cruise, USCG 

For the Respondent: 

Walter J. LeBlanc, Jr., Esq. 

Administrative Law Judge: Bruce Tucker Smith 

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

the procedures in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated April 5, 2011, an Administrative 

Law Judge (hereinafter "ALJ") of the United States Coast Guard revoked the Merchant Mariner 

credentials of Mr. Earl Wayne Maxwell (hereinafter "Respondent") upon finding proved a 

charge of conviction of a dangerous drug law violation. The specification found proved alleged 

that on July 29, 2010, Respondent "was convicted of Use/Possession of Paraphernalia by the 

District Court of Mobile County, Alabama." 
MAXWELL NO. 

2699 

PROCEDURAL HISTORY 

On September 23, 2010, the Coast Guard filed an original Complaint against Respondent, 

which was later amended. [D&O at 1] On November 30, 2010, after receiving an extension of 

time, Respondent filed an Answer to the original Complaint wherein he admitted all 

jurisdictional allegations but denied all factual allegations. [Id.] 

The Coast Guard filed its first Amended Complaint in the matter on December 20, 2010. 

[D&O at 1] On January 7, 2011, the Coast Guard filed a second Amended Complaint. [D&O at 

2] The factual allegations of the second Amended Complaint alleged as follows: 

1. On 07/29/2010, the Respondent, Earl W. Maxwell ... was convicted of 

Use/Possession of Drug Paraphernalia by the District Court of Mobile County, 

Alabama. 

2. Use/Possession of Drug Paraphernalia is a misdemeanor under the Code of the State 

of Alabama, Title 13A; Criminal Code Section 13A-12-260. 

3. Code of the State of Alabama, Title 13A; Criminal Code Section 13A-12-260 is a 

Dangerous Drug Law of the State of Alabama. 

4. The Respondent, Earl W. Maxwell was convicted within the last 10 years of violating 

a Dangerous Drug Law of a State, as described by Title 46 U.S. Code Section 

7704(b). 

The hearing in the matter convened on March 15, 2011, in Mobile, Alabama. [D&O at 2] 

The Coast Guard introduced the testimony of three witnesses during its case-in-chief and entered 

one contested exhibit into the record. Respondent introduced the testimony of one witness and 

did not enter any exhibits into the record. [D&O at 3] Six other exhibits were entered into the 

record through stipulation of the parties. The ALJ entered one exhibit into the record. 

On April 13, 2011, Respondent filed a Notice of Appeal in the matter. He perfected his 

appeal by filing an Appellate Brief on June 2, 2011. The Coast Guard filed a Reply Brief on July 

7, 2011. This appeal is properly before me. 

2 
MAXWELL NO. 2.6 9 9 

FACTS 

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

Merchant Mariner credentials at issue in this proceeding. [D&O at 3] 

On January 12, 2010, Respondent was arrested by a State of Alabama Alcoholic 

Beverage Control Board law enforcement officer for unlawful possession of a controlled 

substance in violation of the Code of Alabama§ 13A-12-212. [D&O at 3-4] Respondent was 

found to possess three rocks of crack cocaine. [D&O at 4] On July 29, 2010, Respondent pled 

guilty to an amended charge of unlawful use/possession of drug paraphernalia. [D&O at 4; CG 

Exhibit (hereinafter "Ex.") 1 at 3-4] As a result of his guilty plea, Respondent received a sixmonth suspended sentence on one year of probation and he was ordered to pay court costs. 

[D&O at 4; CG Ex. 1 at 2-3] 

Under the Criminal Code of the State of Alabama§ 13A-12-260, unlawful use/possession 

of drug paraphernalia is a Class A misdemeanor. [D&O at 4; CG Ex. 6; Stipulated Fact] The 

charge of unlawful use/possession of drug paraphernalia is a dangerous drug law of the State of 

Alabama. [D&O at 4; Stipulated fact] 

On September 21, 2010, Respondent filed a motion to withdraw his guilty plea in 

accordance with Alabama Rules of Criminal Procedure Rule 14.4. [D&O at 4; CG Ex. I at 6-7] 

On September 27, 2010, the court ordered that the amended charge of unlawful use/possession of 

drug paraphernalia would be dismissed subject to four conditions: 1) that Respondent pay court 

costs; 2) that Respondent stay current with restitution payments of $200.00 per month in another 

state court action; 3) that Respondent not be arrested for another crime in the following five 

months; and 4) that Respondent appear before the court on February 24, 2011, to verify 

compliance with the foregoing conditions. [D&O at 4; CG Ex. 1 at 11; Stipulated fact] 

On February 17, 2011, Respondent's guilty plea to unlawful use of drug paraphernalia 

was vacated and withdrawn by the court. [D&O at 4; CG Ex. 2; Stipulated fact] On the same 

3 
MAXWELL NO. 

date, the charge of unlawful use/possession of drug paraphernalia was dismissed by the court, 

with prejudice. [Id.] 

BASES OF APPEAL 

Respondent appeals the ALJ' s D&O finding the charge of conviction of a dangerous drug 

law violation proved. Respondent raises the following bases of appeal: 

I Critical findings of fact were not supported by substantial evidence; 

II. Critical conclusions of law are not in accord with applicable Alabama law, 

precedent, and public policy; and 

III The ALJ abused his discretion in not giving weight to attorney Steven Seiple 's 

uncontradicted testimony. 

OPINION 

· The essence of Respondent's appeal is that the ALJ erred in his interpretation of Alabama 

criminal law and procedure. 

It is well settled in these proceedings that the decision of the ALJ will only be reversed if 

it is arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. See, e.g., 

Appeal Decision 2683 (DeSIMONE) ( citing Appeal Decision 2570 (HARRIS), a(f'd NTSB 

Order No. EM-182 (1966)). 

The key issue presented is whether Respondent has been convicted of a dangerous drug 

law of a state. 46 U.S.C. § 7704(b) provides: 

If it is shown at a hearing ... that a holder of a license, certificate of registry, or 

merchant mariner's document ... within 10 years before the beginning of the 

proceedings has been convicted of violating a dangerous drug law of ... a state, 

the license, certificate, or document shall be suspended or revoked. 

Under the heading "Use of judgments of conviction," 33 C.F.R. § 20.1307(d) provides: 

4 
MAXWELL NO. 26 9 9. 

If the respondent participates in the scheme of a State for the expungement of 

convictions, and if he or she pleads guilty or no contest or, by order of the trial 

court, has to attend classes, contribute time or money, receive treatment, submit to 

any manner of probation or supervision, or forgo appeal of the finding of the trial 

court, the Coast Guard regards him or her, for the purposes of 46 U.S.C. 7703 or 

7704, as having received a conviction. The Coast Guard does not consider the 

conviction expunged without proof that the expungement is due to the 

conviction's having been in error. 

In this case, Respondent does not deny that he was convicted of a dangerous drug law 

violation of a State. However, Respondent contends that because the conviction was later 

vacated by the trial court, he has been convicted of nothing. 

Before the ALJ, Respondent argued that his criminal plea was withdrawn and vacated 

due to "manifest injustice." The record shows that Respondent sought withdrawal of his guilty 

plea because he had believed that he would be able to keep his Captain's license, but later 

learned that the Coast Guard would take action against his Captain's license based on the guilty 

plea. [CG Ex. 1 at 6] The ALJ discounted the withdrawal and vacating of Respondent's guilty 

plea because Respondent sought withdrawal of the plea only to avoid the potential impact a 

criminal conviction would have on his mariner credentials, without any indication of legal error 

in any of the Alabama criminal court pleadings or court orders. [D&O at 12-13] Even though 

the conviction was later vacated by the court, in the absence of a showing that the vacation was 

due to the conviction having been in error, the ALJ implicitly found that Respondent had 

received a conviction for Coast Guard purposes. 

On appeal, Respondent contests the ALJ's Findings of Fact 12 and 13, which state: 

12. No Order emanating from the District Court ... pertaining to Respondent 

references any legal error or "manifest injustice" in response to Respondent's 

Motion for Withdrawal of his guilty plea to the charge of possession of drug 

paraphernalia. 

13. The sole basis for the Order issued by the District Court ... on February 17, 

2011 in response to Respondent's Motion to Withdraw his plea of guilty to the 

charge of possession of drug paraphernalia, was a concern over Respondent's 

potential loss of his Coast Guard-issued mariners credentials - and not because of 

any legal error or manifest injustice. 

5 
MAXWELL NO. ..... 

( \ ' 

[D&O at 4-5] 

Respondent also contests Ultimate Finding/Conclusion 11, which states: 

11. Respondent's Alabama criminal court conviction was not expunged, vacated, 

withdrawn, rendered a nullity or set aside because of either a legal error or 

"manifest injustice." 

[D&O at 14] 

Respondent's defense attorney at the Alabama trial, Steven Seiple, testified before the 

ALJ that after Respondent pleaded guilty, he later reported to Mr. Seiple that the Coast Guard 

was initiating proceedings to revoke his license. [R. at 62] Mr. Seiple sought to withdraw the 

guilty plea under Rule 14.4 based on manifest injustice. [R. at 64-65; see Alabama Rule of 

Criminal Procedure 14.4( e ), ALJ Ex. I at 2] Mr. Seiple testified before the ALJ that there were 

two flaws providing legal basis for a motion to withdraw the plea. [R. at 65] However, he did 

not plead those legal flaws in the motion he submitted; the basis was manifest injustice and the 

potential loss of Respondent's Captain's license. [R. at 65-67; see CG Ex. 1 at 6] The court 

orders in response to the motion, ultimately granting the motion and dismissing the charge, do 

not add any information as to their basis. [CG Ex. 1 at 11; CG Ex. 2] 

Respondent contends that, under Alabama law, the two legal flaws identified by Mr. 

Seiple in his testimony in this proceeding would have rendered Respondent's conviction subject 

to mandatory reversal by the Alabama Supreme Court for legal error, and that it was error for the 

ALJ to ignore the testimony presented and controlling case law that established Respondent's 

conviction was an absolute nullity. I reject his contentions. As explained more fully below, 

whether there may have been a basis under Alabama law to contest the initial plea of guilty is 

irrelevant where Respondent did not plead it at the time and the Alabama court did not rely on it 

in the decision to vacate the conviction. There was no error in the ALJ' s findings and 

conclusion, based on Mr. Sciple's motion and the court orders, to the effect that the final 

disposition of Respondent's case was not based on a legal error. Further, Alabama law as to 

6 
MAXWELL NO., 

whether Respondent has a valid conviction today following the action of the Alabama court is 

not controlling in this proceeding. Whether Respondent has received a conviction for purposes 

of this proceeding is a matter of the interpretation of 3 3 C .F .R. § 20 .13 07, and whether or not it 

is an absolute nullity for other purposes under Alabama law is irrelevant. 

The ALJ correctly concluded that Respondent has been convicted of a dangerous drug 

law of a state pursuant to 33 C.F.R. § 20.1307, notwithstanding the vacation of Respondent's 

conviction of use/possession of drug paraphernalia based on his motion to withdraw his guilty 

plea. 

In its Reply Brief, the Coast Guard argues that this case is similar to Appeal Decision 

2629 (RAPOZA), and that because Respondent had to meet specific conditions - he had to stay 

out of trouble, pay court costs and continue to pay restitution in another pending state matter -

before his guilty plea would be vacated and the charge would be dismissed, the case constitutes a 

conviction for Coast Guard purposes. 

In Appeal Decision 2629 (RAPOZA), the respondent was arrested for possession of 

cocaine. The respondent was placed in a "drug court program" designed to allow a defendant to 

avoid prosecution and conviction, provided that he or she complies with the conditions of the 

program. Under this program, the respondent was required to undergo treatment for drug use, 

pay a $100 fee, and be placed under supervision, which included periodic random urinalysis 

testing. The respondent did not enter a plea of any kind, nor was there a determination of guilt 

by the court. Under 33 C.F.R. § 20.1307( d), a person need not have entered a plea, much less be 

convicted, for a conviction to exist for Coast Guard purposes. Under that regulation, a 

respondent is viewed as having received a conviction if a court orders him to attend classes, 

contribute time or money, receive treatment, submit to probation or supervision, or forgo appeal 

of the trial court's finding. Irrespective of the fact that there was no conviction under state law in 

the Rapoza case, I found that the facts of the respondent's participation in the program met the 

terms of 33 C.F.R. § 20.1307(d), and hence the respondent had received a conviction for 

purposes of 46 U.S.C. § 7704(b). 

7 
MAXWELL NO. 

Indeed, this case is much like Rapoza. Here, although Respondent's guilty plea was 

withdrawn, the trial court had previously ordered Respondent to pay court costs, stay out of 

trouble, and continue to make restitution payments in a separate court action in order to achieve 

withdrawal of the guilty plea. 

In Rapoza, the respondent was in a "drug court program." In this case, there is nothing to 

indicate that withdrawal of Respondent's guilty plea and dismissal of the charge was part of any 

established program. This raises the question of whether the ALJ correctly found that the 

conviction survived the dismissal of the charge for purposes of 33 C.F.R. § 20.1307, which refers 

to "the scheme of a State for the expungement of convictions." The regulatory history of 3 3 

C.F.R. § 20.1307 offers some guidance. In response to a comment suggesting that 33 C.F.R. Part 

20 define the word "conviction," the drafters of the regulation stated, "We believe that§ 20.1307 

establishes a definition of the term 'conviction' that both is adequate and is consistent with the 

definition in 46 CFR 10.103."1 64 Fed. Reg. 28,060 (May 24, 1999). 

Whereas 33 C.F.R. § 20.1307 provides a rule for determining whether a mariner has been 

convicted for purposes of a suspension and revocation proceeding, 46 C.F.R. § 10.107 sets forth 

what constitutes a conviction for the purpose of 46 C.F .R. § 10.211, which addresses the 

eligibility of an applicant for a Merchant Mariner credential. 

46 C.F.R. § 10.107 provides, in relevant part: 

If an applicant pleads guilty or no contest, is granted deferred adjudication, or is 

required by the court to attend classes, make contributions of time or money, 

receive treatment, submit to any manner of probation or supervision, or forgo 

appeal of a trial court's conviction, then the Coast Guard will consider the 

applicant to have received a conviction. A later expungement of the conviction 

will not negate a conviction unless the Coast Guard is satisfied that the 

expungement is based upon a showing that the court's earlier conviction was in 

error. 

1

At the time, definitions for 46 C.F.R. Part 10, including the definition of"conviction," were found at 46 C.F.R. 

§ 10.103, as is stated in the quotation. In 2009, in the course of comprehensive changes to 46 C.F.R. Part I 0, the 

definitions were moved to 46 C.F.R. § 10.107. The substance ofthe definition of"conviction" remained the same. 

See 74 Fed. Reg. I 1,196, 11,217 (Mar. 16, 2009). 

8 
MAXWELL NO. 269g 

33 C.F.R. § 20.1307 and what is now 46 C.F.R. § 10.107 substantially mirror each other, 

with minor exceptions. The regulatory history set forth above strongly suggests they should be 

read consistently. 33 C.F .R. § 20.1307 refers to "the scheme of a State for the expungement of 

convictions;" 46 C.F.R. § 10.107 does not. 33 C.F.R. § 20.1307 provides, "The Coast Guard 

does not consider the conviction expunged without proof that the expungement is due to the 

conviction's having been in error." 46 C.F.R. § 10.107, addressing the same issue, provides, "A 

later expungement of the conviction will not negate a conviction unless the Coast Guard is 

satisfied that the expungement is based upon a showing that the court's earlier conviction was in 

error." 

The import of both regulations is that once a mariner is brought under the criminal 

jurisdiction of a court, any of the enumerated actions - deferred adjudication or a court 

requirement to attend classes, make contributions of time or money, receive treatment, submit to 

probation or supervision, or forgo appeal - renders subsequent action by the court to expunge a 

conviction immaterial to the Coast Guard's determination that the person has been convicted of a 

dangerous drug offense. I conclude that "the scheme of a State for the expungement of 

convictions" is descriptive and refers generally to the broad authority of a court to vacate and 

expunge convictions. I further conclude that the intent of both provisions is that expungement 

does not negate a conviction unless the impetus for the expungement was the court's conclusion 

that the conviction was in error. There is no evidence that was the case here. 

As noted above, under 33 C.F.R. § 20.1307( d), a person need not have entered a plea, 

much less be convicted, for a conviction to exist for Coast Guard purposes; a respondent is 

viewed as having received a conviction if a court orders him to attend classes, contribute time or 

money, receive treatment, submit to probation or supervision, or forgo appeal of the trial court's 

finding. In this case, although Respondent's guilty plea was withdrawn and no conviction 

remained, he was required to meet several conditions ordered by the court - conditions that are 

among those listed in the regulation. Having been charged with violating a dangerous drug law 

of Alabama, and having been required to meet court-ordered conditions before the case would be 

dismissed, he could only escape the sanction against his Merchant Mariner credentials if 

9 
MAXWELL NO. 

dismissal of the State charge had been due to the conviction having been in error. The ALJ 

found otherwise, and did not err in so finding. 

CONCLUSION 

The ALJ's D&O was not arbitrary, capricious, clearly erroneous, or based on inherently 

incredible evidence. The ALJ's decision to revoke Respondent's Merchant Mariner credentials 

was not an abuse of discretion. 

ORDER 

The ALJ's D&O dated April 5, 2011, at Mobile, Alabama, is AFFIRMED. 

Signed at Washington, D.C. this J3 day of sJ"uL'4 , 2012. 

10