UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

- > 

Complainant 

1's. 

CARL JOSEPH BUTLER, JR. 

Respondent. 

Docket Number: CG S&R 06-0166 

CG Case No. 2623798 

ORDER 

Issued by: Walter J. Brudzinski, Administrative Law Judge 

Issued: March 22,2007 

This Order is issued in accordance with 33 CFR sections 20.710,20.901, and 20.902(~) 

in that the parties waived submission of post-hearing proposed findings at a suspension and 

revocation conducted on March 8, 2007 in New York, New York and tile undersigned issued 

findings, conclusions, and sanction at the conclusion of the proceedings. Finding Respondent 

and the subject matter of this hearing within the jurisdiction vested in the Coast Guard under 46 

U.S.C. $5 7703 and 7704, I found that the Coast Guard proved the remaining allegations in the 

Complaint by the preponderance of reliable, probative, and substantial evidence and I revoked 

Respondent's document at the close of the hearing. Respondent then surrendered his only 

validly issued Coat Guard credential - his hlerchant Mariner's Document. 
Comvlaint 

On April 13,2006, the Coast Guard Investigating Officer, LT Richard Gonzalez, issued a 

five count Complaint against Respondent as follows: 

1" Count 

Misconduct 

1. On April 13,2001, the Respondent wrongfully submitted a fraudulent Application for 

License as Officer, Staff Officer, Operator, and Merchant Mariner's Document 

(CG719B) at the Coast Guard Regional Exam Center in NY, by not disclosing all 

convictions in Section 111 on Page 2 of the CG-719B Form. 

2. Specifically, Respondent failed to disclose conviction of January 20,2001, for Driving 

while under the influence of alcohol, State of New York, Criminal Court of Richmond, 

Case No. 200041002047. [Richmond County is Staten Island, New York]. 

The Coast Guard proposes Revocation in accordance with 46 U.S.C. 5 7703. 

znd Count 

Misconduct 

I. On January 18,2005, Respondent was convicted of Assault (Simple, On Police) in the 

State of New Jersey, Ocean County Superior Court. Cases #OCN02093687-001. 

The Coast Guard proposes Revocation in accordance with 46 U.S.C. 8 7703. 

3" Count 

Misconduct 

1. On February 1,2006. Respondent wrongfully submitted a frauduletlt Application for 

License as Officer, Staff Officer, Operator, and Merchant Mariner's document (CG-719B) at 
the Coast Guard Regional Exam Center in NY, by not disclosing all convictions in Section 

111 on Page 2 of the CG7 19B Form. 

2. Specifically, Respondent failed to disclose the following convictions: 

a. January 20,2001 - Driving while under the influence of alcohol. State of New 

York, Criminal Court of Richmond County. Case No. 2000R1001047. 

b. January 18,2005 -Assault - Simple, On Police. State of New Jersey, Ocean 

County Superior Court. Case No. OCN02093687-001. 

c. January 18,2005 -Criminal mischief with damage. State of New Jersey, Ocean 

County Superior Court. Case No. OCN02093687-001. 

d. February 16,2005 - Operating a motor vehicle while impaired by drugs (1"). 

Richmond County Superior Court. Case No. 00236-2004. 

The Coast Guard proposes Revocation in accordance with 46 U.S.C. § 7703. 

4" Count 

Misconduct 

1. On February 16, 2005, respondent was convicted upon a plea of guilty of Assault 

with Intent to Cause Physical Injury to an Officer in the State of New York, 

Richmond County Superior Court. Case No. 000236-2004. 

The Coast Guard proposes Revocation in accordance with 46 U.S.C. 5 7703. 

Sth Count 

Conviction for a Dangerous Drug Law Violation 

1. Within the last 10 years, the Respondent was convicted of violating a dangerous drug 

law of the State of New York. 
2. Specifically, on February 16, 2005, Respondent was convicted upon a plea of guilty 

in the Richmond County Superior Court of Operating a motor vehicle while impaired 

by drugs (1"). Case No. 00236-2004. 

The Coast Guard proposes Revocation in accordance with 46 U.S.C. 5 7704. 

Procedural History 

Having received no Answer from Respondent, the Coast Guard Investigating Officer 

filed a Motion for Default Ordcr on June 15,2006. Soon thereafter, on July 21,2006, the ALJ 

Docketing Center assigned the case to Judge Thomas E. P. McElligott and on August 10,2006, 

Judge McEIligott issued his Order granting the Coast Guard's Motion for Default Order and 

Revoked Respondent's Merchant Mariner's Document. 

At about the same time that Judge McElligott issued the Default Order, Respondent 

retained counsel and subsequently moved to have the Default Order vacated. Therefore, the ALJ 

Docketing Center reassigned the case to Judge McElligott and on October 3,2006, Judge 

McElligott re-opened the case and vacated his previous Ordcr Granting Motion for Default and 

Revocation Sanction. On December 20,2006, this matter was assigned to the undersigned and 

on January 3,2007 the first pre-hearing teleconference was held. After extensive discussion and 

argument, the undersigned ordered that Respondent finally Answer the Complaint by January 3 1, 

2007. Also, a discovery schedule was ordered and the matter was set down for hearing to 

commence March 8,2007 in New York, New York. On January 5,2007, Respondent filed his 

Answer and Agrmative Defenses and on January 16, 2007. the Coast Guard filed its Notlee of 

Reassignment of Representation substituting Chief Warrant Officer James G. Pritchard and 

Lieutenant Martha A. Rodriguez in place of Lieutenant Richard Gonzalez as Investigating 

Officers. 
Motion Practice 

Respondent's FVifness List and Motion for Further Discovery. Respondent's Witness List 

included LT Richard Gonzalez, the former Investigating Officer, among others. Also, 

Respondent filed a Motion for Further Discovery seeking to depose LT Gonzalez because "LT 

Gonzalez has, on a prior occasion unjustly accused Respondent of a criminal offense, while 

Respondent was in LT Gonzalez's presence . . . LT Gonzalez's would be able to testify to any 

previous contact he had with Respondent . . . [and] explain the steps undertaken by Petitioner 

[Coast Guard] to investigate the claim against Respondent. Most importantly, LT Gonzalez will 

be able to provide testimony regarding his previous encounter with Mr. Butler, and disclose 

whether any bias existed, while the investigative process was under way." 

On February 7,2007, the Coast Guard filed its objection to Respondent's Request for 

Further Discovery stating that it would amount to a "fishing expedition" and an attempt to obtain 

LT Gonzalez's thoughts and opinions which are not relevant to the issues in this matter. The 

Coast Guard averred that its investigative process is publicly available in the CFR and in the 

Marine Safety Manual. 

Motion forpre-hearing conference. The Coast Guard filed its motion for another prehearing conference to address the issue of calling LT Gonzalez as a witness. On February 13, 

2007, the parties and the undersigned participated in a pre-hearing teleconference during which 

time further argument was made on the issue of calling LT Gonzalez as a witness. Essentiaily? 

counsel for Respondent argued that LT Gonzalez's testimony was necessary to show that there 

were no reasonable grounds for the Coast Guard to conduct the investigation which led to the 

allegations in the Complaint and also to show LT Gonzalez's bias against Respondent. I found 
that U1' Gonzalez's anticipated testimony as proffered by Respondent would not he relevant to 

the matters alleged in the Complaint and therefore would not be allowed. Further, 1 found that 

the Administrative Law Judge was without authority to rule on whether reasonable grounds exist 

for the Coast Guard to initiate and conduct an investigation. 

hfotions and Cross-Motionfor Summary Decision. The Coast Guard filed two Motions 

for Summary Decision on all counts in accordance with 33 CFR 20.901. On February 21,2007, 

Respondent filed his Answer in Opposition to the Coast Guard's Motions for Summary Decision 

and Cross-Motion for Summary Decision. In his Cross-Motion, Respondent argued for 

Summary Decision on the First Count because it is time-barred. Specifically, Respondent cites 

the 46 CFR 5.55 three year time limit for Misconduct offenses not specified in 46 CFR 5.59(a) 

and 5.61(a). Respondent also asked for Summary Decision on the Second and Fourth Counts 

because he was not acting under the authority of his license when the alleged conduct occurred. 

That same day, the Coast Guard Motioned for another Pre-Hearing Conference to address its 

Motion for Summary Decision and Answer to Respondent's Cross Motion for Summary 

Decision. 

On February 23,2007, the undersigned conducted another pre-hearing teleconference. 

After lengthy discussion and argument by the parties, I denied the Coast Guard's Motion for 

Summary Decision because 46 U.S.C. 5 7703 allows for suspension as well as revocation; 

therefore, the issue of sanction is still a material fact in dispute. I also denied Respondent's 

Cross-Motion for Summary Decision. After additional discussion and argument, the Coast 

Guard Moved to Withdraw the First Count which 1 granted and dismissed the First Count 

Without Prejudice. 
Amending the Second and Fourth Counts. The statutory authority cited in the 2"* and 4'" 

Counts is 46 U.S.C. 5 7703 (2) which reads, "[a] license, certificate of registry, or merchant 

mariner's document issued by the Secretary may be suspended or revoked if the holder - (2) is 

convicted of an offense that would prevent the issuance or renewal of a license, certificate of 

registry, or merchant mariner's document. . . ." Respondent's Cross-Motion for Summary 

Decision on those counts was predicated on Misconduct under 46 U.S.C. 5 7703 (1) (B) which 

requires that the mariner must be acting under the authority of his license, certificate of registry, 

or merchant mariner's document and not 46 U.S.C. 5 7703 (2) which requires only that the 

Respondent be a holder of a Coast Guard license, certificate of registry, or merchant mariner's 

document. Counsel for Respondent argued that LT Gonzalez told him that the Second and 

Fourth Counts were "Misconduct" under 46 CFR 5.27 and that he was therefore misled. The 

Coast Guard Investigating Officer responded that the 2"* and 4" Counts are brought under 46 

U.S.C. 5 7703 (2), listed in the Complaint. The undersigned noted that it is only subparagraph 

(1) of 5 7703 which requires a mariner to be acting under the authority of that license, certificate, 

or document and that subparagraph (2) requires only that a mariner be a "holder." Therefore, I 

denied Respondent's Cross-Motion for Summary Decision concerning the 2"* and 4" Counts. 

While I found the 2nd and 4'h Counts legally sufficient as drafted because they listed 46 U.S.C. 5 

7703 (2) as authority, to more visibly and clearly delineate the authority cited by the Coast Guard 

on these Counts, I amended the 2Ixd and 41h Counts in my Memorandum and Order of February 

23,2007 as follows: On the iine entitled Statutory Authority, "46 USC $ 7703 (2) is substituted 

for "46 CFR 7703.= On the line entitled Regulatory Authority, "46 CFR 12.02-4 and Table: is 

substituted for "46 USC 5 7703 (2)." Under "Factual Allegations," "Conviction of an offense 
that would prevent the issuance or renewal of a merchant mariner's document" is substituted for 

the word, "Misconduct." 

Motion Requesting Appearance. On March 1, 2007, the Coast Guard filed its Motion 

Requesting Appearance [of Respondent] to ensure the Respondent's appearance at the hearing 

and the production of his Merchant Mariner's Document. That same day, counsel for 

Respondent filed his Answer advising that Respondent is aware of the hearing and is planning to 

attend but counsel could not guarantee his appearance because it is beyond counsel's control. On 

March 2,2007, the undersigned issued an Order Denying the Coast Guard's Motion Requesting 

Appearance. 

Motion for Adjournment. Also on March 1, 2007, counsel for Respondent filed his 

Motion for Adjoumnent advising that he previously scheduled and paid for a vacation to Florida 

and that he would be available any time after March 11, 2007 for hearing. Counsel also advised 

that the Coast Guard stated that they would "vigorously oppose'' any request for adjoumment. 

On March 2,2007, the undersigned issued an Order Denying Respondent's request for 

adjoumment stating that the hearing will commence on March 8,2007 as per the previously 

issued Scheduling Order. 

Hearing 

At the hearing on March 8, 2007, the Coast Guard presented the tcstimony of two 

witnesses: the Respondent, Mr, Carl Joseph Butler, Jr., and Mr. Kenneth J. Skutches, of Regional 

Examination Centcr, New York, who testified on the procedures for applications and renewals of 

U.S. Merchant Mariner credentials. The Coast Guard also introduced 10 Exhibits. The 

Respondent presented his own testimony and introduced one exhibit. 
Summarv Decision on the 51h Count 

At the close of the Coast Guard's case in chief, the Investigating Officer Motioned for 

Summary Decision on all counts. Since the Respondent could still argue for suspension on the 

remaining 2nd, 3r*, and 41h Counts, I denied the Coast Guard's Motion on those Counts. 

However, on the remaining 5Ih Count, Conviction of a Dangerous Drug Law Violation, I granted 

the Coast Guard's Motion for Summary Decision finding that Coast Guard Exhibits 3 through 7 

proved that Respondent was convicted in Richmond County, New Vork of Operating a Motor 

Vehicle Under the Influence of Drugs, namely phencyclidine (PCP) on February 16,2005 and 

sentenced on April 8,2005. PCP is listed in 46 CFR 16.1 13,49 CFR 40.85, among other 

dangerous drugs such as marijuana, cocaine, opiates, and amphetamines, which are specifically 

tested for under the Department of Transportation and Coast Guard regulations. It is also a 

Schedule 111 Controlled Substance. See 21 U.S.C. 5 812. Title 46 U.S.C. 5 7704 (b) provides 

that "[ilf it is shown at a hearing under this chapter that a holder of a lieeilse, certificate of 

registry, or merchant mariner's document issued under this part, within 10 years before the 

beginning of the proceedings, has been convicted of violating a dangerous drug law of the United 

Slates or of a State, the license. certificate, or document shall he suspended or revoked." 

Title 46 U.S.C. 5 7704 (b), was amended August 9,2004, by inserting "suspended or" 

after "shall be." See P ub. L. 108-293, Title IV, 5 402. Congressional intent illustrates that 

paragraph (b) was specifically amended to allow the Administrative Law Judge to approve 

settlement agreements when drug eonviction cases involve minor drug offenses. &g H.R. CONF. 

REP. NO. 108-617; at 78 ("The Coast Guard seeks the discretion to suspend a mariner's 

credentials in dangerous drug law conviction cases. Use of that discretion will allow the use of 

Settlement Agreements to resolve cases involving minor drug convictions."). However, 49 CFR 
5.59 provides that "[a]n Administrative Law Judge enters an order revoking a respondent's 

license, certificate or document when. . . (b) . . . [a respondent] has been convicted for a 

viotation of the dangerous drug laws, whether or not further court action is pending, and such 

charge is found proved." The fact that 46 CFR 5.59(b) mandates revocation in drug conviction 

eases does not conflict with 46 U.S.C. $ 7704 (b) when the legislative history is taken into 

account. Reading the statute and regulation together, it is clear that an Administrative Law 

Judge has no discretion to impose a sanction other than Revocation, absent a Settlement 

Agreement, after finding proved an allegation of a dangerous drug law violation. In this case, 

the Coast Guard did not offer Respondent a Settlement. Therefore, the Administrative Law 

Judge must revoke where convictions of a dangerous drug law violation are found proved in 

Suspension and Revocation hearings. 

Counsel for Respondent objected to the Coast Guard's Motion for Summary Decision at 

the hearing. Specifically, counsel for Respondent's Pre-Trial Memorandum of Law averred that 

the hearing on Count Five must be continued to allow Respondent to show cure and cited 46 

U.S.C. 5 7704(c) as authority. The statutory authority for the 51h Count is 46 U.S.C. 5 7704 @), 

not 5 7704 (e). Section 7704 (c) provides, "[i]f it is shown that a holder has been a user of. or 

addicted to, a dangerous drug, the license, certificate of registry, or merchant mariner's 

document shall be revoked unless the holder provides satisfactory proof that the holder is cured." 

As shown in the 5 7704 (b) text above, a holder of a license, certificate of registry, or nicrchant 

mariner's document is not accorded an opportunity to provide satisfactory proof that the holder is 

cured as is the case in $ 7704 (c). 
Findings and Discussion of the Evidence 

The znd Cozmi. Concerning the 2nd Count, I found that the Coast Guard proved by the 

preponderance of reliable, probative, and substantial evidence that the Respondent was 

"convicted" on January 18,2005 of Simple Assault on Police in New Jersey, an offense that 

would prevent the issuance or renewal of his document. Referring to the referenced 46 CFR 

Table 12.02-4 in the Complaint as amended, Simple Assault carries an assessment period from 1 

to 5 years. Coast Guard Exhibit 8 shows the certified copy of the Pre-Trial Intenrention (PTI) 

Program Dismissal. Coast Guard Exhibit 10 describes the Pre-Trial Intervention program as 

requiring supenision from one to three years and that certain standards are imposed such as 

random urine monitoring, assessments for fees, penalties, and fines. Additional conditions may 

also be imposed to require the performance of community service, payment of restitution, and 

submission to psychological and/or drug and alcohol evaluatioils with compliance to 

recommended treatment programs such as anger management. If a defendant successfi~lly 

completes the conditions of PTI, then the original charges are dismissed and there is no record of 

conviction. One the requirements for his PTI Dismissal were to successfully complete "Anger 

Management." See Respondent's Exhibit "A," 

While counsel for Respondent argued that Respondent actually received no conviction 

and that he did not participate in a scheme of a state for the expungement of a conviction, I found 

that the New Jersey PTI program described in Coast Guard Exhibit 10 comports with the 

definition of "conviction" found at 33 CFR 20.1307 and 46 GFR 12.01-6, as well as 

Decision 2629 (RAPOZA) (2002). In RAPOZA, the Vice Commandant held that the 

Admi~listrative Law Judge may analyze state law to determine whether a plea of nolo contendere 

or no contest in a state tour? cor~stitutes a eonb,ictinn either under state 1a.s or for purposes of 
federal regulations. Title 46 CFR 12.01-6 defines conviction to include any disposition in which 

"an applicant pleads guilty or no contest, is granted deferred adjudication, or is required to attend 

classes, make contributions of time or money, receive treatment, submit to any manner of 

probation or supervision, or forego appeal of a trial court's conviction, the11 the applicant will be 

considered to have received a conviction. A later expungement of the conviction will not negate 

a conviction . . . ." Further, 33 CFR 20.1307(c) (2): provides that "[a] judbment of conviction by 

a Federal or State court for a violation is conclusive in the proceeding if an S&R proceeding 

alleges conviction for. . . (2) An offense that would prevent the issuance or renewal of a 

merchant mariner's license, certificate of registry, or document. . . ." Therefore, the PTI 

dismissal was a "conviction" within the meaning of 46 CFR 12.01-6 and is conclusive to prove 

the count under 33 CFR 20.1307. 

The 3rd Count. Concerning the 3d Count, submitting a fraudulent application for his 

document on February 1,2006, I found that count proved by the preponderance of reliable, 

probative and substantial evidence. Respondent listed only one conviction on his CG-719B form 

- a felony assault conviction in New York in 05/04. That is the same conviction listed in the 4' 

Count, a cotlviction that would prevent the issuance or renewal of his document. Mr. Kenneth J. 

Skutches of the Regional Examination Center, New York testified to receiving only the 

application as shown in Coast Guard Exhibit 2; that is, the application listing only the felony 

assault conviction in New York in 05/04, There were no additional convictions listed; nor were 

any criminal record history print-outs attached to the form. Respondent testified that he attached 

a computer print out of his criminal record that he obtained from Criminal Court in Staten Island 

to make sure he did not forget to list any of his convictions. 1 found Respondent's testimony not 

credible. Title 16 CFR12.02-4(c) requires that ""jajpplicants must provide written disclosure of 
all prior convictions at the time of application." While it might be understandable, but not 

excusable, to choose not to list the New Jersey PTI dispositions because they resulted in 

dismissals, and even to forget the DU1 conviction in New York which he received in 2001; 

however, Respondent chose to list only the felony assault in New York in 2005 and purposefully 

chose not to disclose the Driving While Under the Influence of Drugs (PCP) for which he was 

also indicted on the same day as the felony assault, convicted on the same day, (February 16, 

2005), as the felony assault, and sentenced on the same day (April 8,2005) as the felony assault. 

- See Coast Guard Exhibits 3 and 4. Respondent's explanation at the hearing was that by 

disclosing only the felony assault, he thought that the Driving Under the Influence of Drugs 

conviction would be included along with it. I find it incredible that affirmatively choosing not to 

disclose the more serious dangerous drug law violation conviction on a two count indictment 

could result from mere inadvertence or be based on an assumption that the undisclosed, more 

serious conviction is subsumed or presumed along with the disclosed. less serious convictioil on 

the same indictment, especially when Respondent testified that he was aware that all convictions 

had to be listed on the CG-719B form and that his knowledge of that requirement was the reason 

he attached a computer print-out of his criminal record. The above circumstances and 

Respondent's explanation created an inference that he had not only had constructive knowledge 

but also actual knowledge that the statement on the CG-719B form was incorrect. Since I have 

found that Respondent had constructive and actual knowledge of the omitted convictions and 

that his statement on the CG-714B form was incoirect, his merchant mariner's document must be 

revoked. Apaeal Decision 2613 (SLACK) (1999); Apgeal Decision 809 (IMAROUES) (1955). 

Under MAROUES, a statement is made with actual knowledge if the statement is made without 

belief in its truth or in reckless disregard of its truth or falsity. Constructive knowledge exists if 
the person knew or had a reason to know the representation was incorrect. If the respondent did 

not have actual or constructive knowledge, the Administrative Law Judge has discretion to 

determine the appropriate sanction. See Aapeal Decision 2607 (ARIES) (1999) and 

Decision 2608 (SHEPPARD) (1 999). 

By disclosing only the 2005 non-drug conviction contained in an indictment comprised of 

two offenses: felony assault on a police officer and operating a motor vehicle while impaired by 

drugs, an inference of fraudulent intent arises because the statement is made without a belief in 

its tmth or reckless disregard of its truth or falsity. The circumstances of the joint indictment. 

joint conviction, and joint sentencing show that Respondent had actual knowledge of the drug 

conviction and had a reason to know that the representation was not wholly truthful. In 

Decision 2613 (SLACK) (1999), the Commandant stated that revocation is the only appropriate 

sanction when a license is procured through fraud. Respondent had actual and constructive 

knowledge of his prior convictions, and even admitted in his testimony that he stapled a 

computer print out of his criminal record so the he would not forget any of them. 

The 4th Count. On the 4" Count, I found that the Coast Guard proved by the 

preponderance of reliable, probative, and substantial evidence that Respondent was convicted of 

an offense that would prevent the issuance or renewal of his document in that on February 16, 

2005, Respondent was convicted of Assault in the Second Degree with Intent to Cause Physical 

injury to an Officer in the State of New York, Coast Guard Exhibits 3 and 4; 

Referring to 46 CFR Table 12.02-4, there are 2 listings for assault: simple assault and 

aggravated assault. The assessment period for simple assault is 1 to 5 years and the assessment 

period for aggravated assault is S to 10 years. Counsel for Respondent objected to the Coast 
Guard Investigating Officer characterizing Respondent's conviction as aggravated assault 

because Respondent was convicted of Assault in the Second Degree which he claims is not as 

serious as aggravated assault. I take official notice that felony assault in the second degree is a 

more serious crime than simple assault. Therefore, it is reasonable to infer that the assessment 

period for a felony assault in the second degree will be longer than the assessment period for 

simple assault. Title 46 CFR 12.02-4(c) (2) states that Table 12.02-4 "lists major categories of 

criminal activity and is not to be construed as an all-inclusive list. If an applicant is convicted of 

an offense that does not appear on the list, the Officer in Charge, Marine Inspection will establish 

an appropriate assessment period using the list as a guide." 

At the end of the hearing, 1 inquired of the parties whether they wished to submit post 

hearing proposed findings in accordance with 33 CFR 20.710 and 5 U.S.C. 5 557(c) (1). The 

parties waived submission of proposed findings and, after oral argument, 1 announced that the 

nd ?rd remaining 2 , , and 4th Counts are found proved. On the 5" Count I had previously granted 

Summary Decision and imposed Revocation as discussed above. On the 2"* and 4'h Counts, I 

imposed the sanction of outright suspension for 24 months on both, and on the 4'h Count, I 

imposed the sanction of Revocation. In drafting this Order, I realized that assigning separate 

sanctions for each count was incorrect and that I should have imposed one sanction, Revocation, 

covering all counts. Therefore, I conducted a post-hearing teleconference on March 16, 2007 to 

correct the record. I advised the parties of my mistake and invited them to submit post-hearing 

briefslproposed findings which they had previously waived. The Coast Guard Investigating 

Officer advised that the Coast Guard would not be submitting post-hearing briefs and counsel for 

Respondent advised that he would discuss this matter with his client and would inform the 
undersigned and the Coast Guard in writing by March 21,2007. On March 21,2007, counsel for 

Respondent advised that he would not submit post hearing bricfs!proposed findings. 

WHEREFORE, 

ORDER 

IT IS HEREBY ORDERED that having previously dismissed the IS' Count Without 

nd rd th Prejudice, the remaining 2 ,3 ,4 , and 5" Counts in the Complaint are found PROVED. 

IT IS FURTHER ORDERED that Respondent's Merchant Mariner's Document is 

REVOKED. 

PLEASE TAKE NOTICE that service of this Decision on the parties andlor parties' 

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

(Attachment A). Since the Administrative Law Judge subsequently revised the Sanction to 

reflect Revocation on the remaining 2nd through 51h Counts, the 30 day time period for the parties 

to file notice of appeal pursuant to 33 CFR 20.1001(a) commences this date, March 21,2007. 

Done and dated March 22,2007 

New York, New York 

ADMMSTRATIVE LAW JUDGE 

U.S. COAST GUARD 
ATTACHMENT A 

NOTICE OF 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 senfe 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 AW 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 

@) 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 -- 
(i) Basis for the appeal; 

jii) Reasons supporting the appeal; and 

(iii) Reliefrequested 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 

servlce of the AW'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 -- 

(I) 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 cach party and interested person. 
WITNESS AND EXHIBIT LISTS 

COAST GUARD'S WITNESSES 

1. Carl Joseph Butler, Jr., Respondent 

2. Kenneth 3. Skutches, Regional Examination Center, New York 

RESPONDENT'S WITNESSES 

1. Carl Joseph Butler, Jr., Respondent 

COAST GUARD'S EXHIBITS 

CG Ex. 1 - Respondent's Merchant Mariner's Document, 2 pages. 

CG Ex. 2 - CG - 71 9B, Application for License as Officer, Staff Officer, Operator, and 

Merchant mariner's Document: Carl Joseph Butler, Jr., dated February 1,2006,4 pages. 

CG Ex. 3 -Certificate of Disposition No. 300236-2004, Supreme Court of the State of New 

York, Richmond County, showing convictions for Assault 2nd Degee and Operating Motor 

Vehicle Under Influence of Drug or Alcohol, 1 page. 

CG Ex. 4 - Indictment of the two offenses described in CG Ex. 3 and Resisting Arrest, 3 pages. 

CG Ex. 5 -Application and Search Warrant to test Respondent's blood for phencyclidine (PCP), 

also known as "an~eldust" as the result of Respondent's remark to medical personnel that he had 

about four hits ofk~ earlier, 4 pages. 

CG Ex. 6 - NYPD Property Clerk's Invoice iZM048954 Respondent's Blood Sample, 1 page. 

CG Ex. 7 -Toxicology Lab Report showing presence of PCP in Respondent's blood, 1 page 

CG Ex. 8 - Certificate of Disposition, Criminal Court of the City of Nevi York, Pcople v. Carl 

Butler showing 1/30/2001 conviction of DUI, 1 page. 

CG Ex. 9 - Pre-Trial Intervention Indictment and Order of Dismissal showing Indictment of 

Criminal Mischief - Fourth Degree and Aggravated Assault - Third Degree. 

CG Ex, 10 - State of New Jersey Pre-Trial Intenention Program (PTI), 3 pages. 

RESPONDENT'S EXHIBITS 

Resp. Ex. A. - Certificate of Completion - Anger Management Program; New Horizons, 1 page. 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing ORDER via express mail 

courier, namely Federal Express, upon the following parties and limited participants (or 

designated representatives) in this proceeding at the addresses indicated as follows: 

CWO Janles G. Pritchard 

LT Martha Rodriguez 

LT Charles Cobb 

USCG Sector New York 

Investigations Division 

2 12 Coast Guard Drive 

Staten Island, NY 10305 

Telephone: (7 18) 354-4230 

Facsimile: (7 18) 354-4224 

Cornelius A. Mahoney, Esq. 

Jorge A. Rodri yez, Esq. 

Mahoney & Keane, LLP 

11 1 Broadway, Tenth Floor 

New York, NY 10006 

Telephone: (212) 385-1422 

Facsimile: (212) 385-1605 

USCG - ALJ Docketing Center 

40 South Gay Street 

Baltimore, MD 21202 

Telephone: (41 0) 962-7434 

Facsimile: (410) 962-1746 

Done and dated March 22,2007 

New York, New York 

Paralegal Specialist to the 

~dmiiistrative Law Judge 

Telephone: (212) 668-2970 

Facsimile: (212) 825-1 230