UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL G. DESIMONE 

Respondent. 

______________________________ Docket Number: CG S&R 05-0192 

CG Case No. 2323513

 

ORDER

Issued: July 8, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Procedural History

This matter came to be heard on Respondent’s request for a hearing following service of 

the Coast Guard’s Complaint alleging that within the last ten years, Respondent was convicted of 

violating a dangerous drug law of the State of New York, in violation of 46 U.S.C. 7704(b) and 

46 CFR 5.35. The undersigned heard this matter on July 6, 2005 in New York, New York, 

where professional counsel represented Respondent. 

At the conclusion of the hearing, the Coast Guard waived its right to submit proposed 

findings of fact and conclusions of law and asked for a bench decision. After reviewing the 
exhibits, hearing the testimony of the witness and oral arguments by the parties, the undersigned 

found by the preponderance of reliable, probative, and substantial evidence that 1) the 

Respondent was a holder of Coast Guard license number 1019349 issued on July 2, 2002; and 2) 

that within 10 years before the beginning of the proceedings (July 12, 2002), Respondent had 

been convicted of violating a dangerous drug law of the State of New York (Unlawful 

Possession of Marihuana). As a result, the undersigned revoked Respondent’s license. The 

license was then placed in the custody of the Investigating Officer (IO). 

Counsel for Respondent asked for and was granted two weeks to submit additional 

arguments and proposed findings. “The ALJ may, upon motion of any party or in his or her own 

discretion, render the initial decision from the bench (orally) at the close of the hearing and 

prepare and serve a written order on the parties or their authorized representatives.” 33 CFR 

20.904(c). The next day, July 7, 2005, counsel for Respondent advised the undersigned via 

facsimile that he would not be filing any post-hearing brief but was going to appeal. 

Respondent’s Motion to Dismiss

Respondent moved to dismiss the charge, arguing that his conviction was not for a felony 

or misdemeanor under New York law and as a result could not be treated as such under Coast 

Guard regulations. He claimed that his conviction was less than a misdemeanor and therefore not 

a criminal offense or a violation of the National Driver Registry Act of 1982, but similar to a 

mere “traffic ticket.” Respondent’s Exhibit A states, in pertinent part, that “[u]nder 46 Code of 

Federal Regulations subpart 10.103 & 12.01-3(sic): [The term] [c]onviction means the applicant 

has been found guilty by judgment or plea by a court of record of the United States, the District 

of Columbia or any State or territory of the United States of a criminal felony or misdemeanor or 

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of an offense described in section 205 of the National Driver Registry Act of 1982 (49 U.S.C. 

30304). . . .” 

Respondent’s motion to dismiss was denied. The definition of “conviction” cited in 

Exhibit A is not applicable to 46 U.S.C. 7704(b) because 46 CFR Sections 10.103 and 12.01-

3(sic) are both entitled, “[d]efinitions of terms used in this part.” Therefore, the above definition 

of “conviction” does not apply outside of 46 CFR Parts 10 and 12. Also, the term “conviction” is 

not defined in Title 46 U.S. Code. Therefore, the plain language of the statute applies. 

Furthermore, the undersigned found no decisions on appeal providing exceptions for 

those who violated dangerous drug laws where the state treated the offense as other than a felony 

or misdemeanor. As long as the conviction occurred within ten (10) years prior to the initiation 

of these proceedings, the severity of the violation is not probative on the issue of whether a 

respondent was convicted of violating a dangerous drug law. In Appeal Decision 2388 

(MANLEY) (1985), the judge’s decision of revocation was reversed partly because the 

respondent was “convicted of a relatively minor marijuana offense over one year prior to the date 

on which he was charged.” In the present case, however, the actual amount of marijuana 

possessed by Respondent was unknown and therefore could not be taken into consideration in 

rendering a decision. Pursuant to his plea of guilty, Respondent was convicted in Criminal Court 

for the City of New York, Kings County, for unlawful possession of marijuana and sentenced to 

imprisonment (time served). IO Exhibit 3. 

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Sanction

The August 9, 2004 version of 46 U.S.C. 7704 granted discretion to the administrative 

law judge in allowing him/her to suspend or revoke the credentials of a mariner convicted of 

violating a federal or state dangerous drug law within the previous ten years. After listening to 

Respondent’s testimony and reviewing the exhibits, the undersigned decided to revoke 

Respondent’s license. During his testimony at the hearing, Respondent attempted to deflect 

responsibility for his actions surrounding the underlying offense, failed to take responsibility for 

his conviction despite his plea of guilty, displayed a lack of remorse, and did not demonstrate 

any attempt at rehabilitation. In Appeal Decision 2377 (HICKEY) (1985), Respondent was 

“convicted in the U.S. District Court for the District of Maine for conspiring to import large 

qualities marijuana into the United States.” The conviction was the result a of a plea agreement 

stating that if Respondent pled guilty to Count VII of the indictment, which explained his role in 

the conspiracy, then all other charges against him and his wife would be dismissed. The 

Commandant stated that an individual “who wishes to hold a license following conviction for a 

serious narcotics offense must make an especially strong showing that he is rehabilitated.” Since 

a showing of rehabilitation was not made, the Commandant held that Respondent’s license was 

properly revoked by the ALJ. 

In this case, IO Exhibit 2 shows that on or about July 11, 2002, at approximately 3:30 

p.m., in Kings County (Brooklyn), New York, the Respondent was observed to be in possession 

of a quantity of crack cocaine that was recovered from his hand. Exhibit 2 further states that the 

Respondent was in possession of a quantity of marijuana that was recovered from his person. 

Respondent was convicted only of unlawful possession of marijuana. IO Exhibit 3. The 

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disposition of the criminal possession of a controlled substance in the seventh degree (cocaine) 

charge is unknown. 

ORDER

IT IS HEREBY ORDERED that upon finding the above charge PROVED against 

Respondent, his Coast Guard License No. 1019349 is REVOKED. 

PLEASE TAKE NOTICE that service of this Order on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001 – 20.1004. 

Attachment A. 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 

Done and dated July 8, 2005 

New York, New York 

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CERTIFICATE OF SERVICE 

I hereby certify that a copy of the above Order was sent to the following individuals and 

entities by the method indicated below: 

LT Richard Gonzalez, USCG 

USCG Activities New York 

Investigations Department 

212 Coat Guard Drive 

Staten Island, NY 10305 

Phone: (718) 354-4229 

Facsimile: (718) 354-4224 

Via Facsimile 

Frederick W. Meeker, Esquire 

7 Dey Street 

New York, NY 10007 

Phone: (212) 528-1332 

Facsimile: (212) 528-1341 

Via Facsimile 

USCG ALJ Docketing Center 

40 S. Gay Street, Rm 412 

Baltimore, MD 21202 

Phone: (410) 962-7434 

Facsimile: (410) 962-1746 

Via Facsimile 

 ______________________________ 

 Alyssa L. Paladino, Esq. 

 Attorney-Advisor

 Office of the Chief Administrative Law Judge 

 U.S. Coast Guard

 

Done and dated July 8, 2005 

New York, New York 

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ATTACHMENT A

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS 

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party.

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 

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(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief.

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings.

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a copy 

of the decision on each party and interested person. 

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ATTACHMENT B

WITNESS AND EXHIBIT LISTS

COMPLAINANT’S WITNESSES 

1. Michael G. DeSimone, Respondent 

COMPLAINANT’S EXHIBITS 

1. Coast Guard License 

2. Charge Sheet / Affidavit 

3. Certificate of Disposition 

RESPONDENT’S EXHIBITS 

A. Information Sheet 

B. National Driver Registry Act 

C. CHRS Customer Data Report 

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