UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

ALBERT LYLE BLACKWELL 

Respondent 

_______________________ 

Docket No: 2011-0047 

CG Enforcement Activity No: 3905860 

DECISION & ORDER

Date Issued: December 6, 2011 

Issued by: Hon. Bruce Tucker Smith 

 Administrative Law Judge 

Appearances:

For the Complainant 

LT Shawn Merrick, IO 

Robert Foster, SIO 

U.S. Coast Guard Sector Mobile 

For Respondent 

John W. Beck, Esq. 

The Law Offices of John W. Beck 
2

I. PRELIMINARY STATEMENT 

The United States Coast Guard Sector Mobile (Coast Guard) initiated the instant 

administrative action seeking revocation of Respondent Albert Lyle Blackwell’s 

(Respondent) Coast Guard-issued Merchant Mariner’s License (credential). This instant 

action is brought pursuant to the legal authority codified at 46 USC §7703(2). 

On January 31, 2011, the Coast Guard filed a Complaint alleging that on July 29, 

2010, Respondent was convicted in the Circuit Court of Mobile County, Alabama, 

Thirteenth Judicial Circuit, for “violating Alabama State Code §13A-13-3, Incest (child 

victim).” The Coast Guard further alleged that “[a] conviction of Alabama State Code 

[§] 13A-13-3 Incest (child victim) is a conviction of an offense under the crimes against 

persons category of 46 CFR 10.211” and its attendant Table. According to the Coast 

Guard’s original Complaint, “[a] conviction of Alabama State Code [§] 13A-13-3 Incest 

(child victim) is a conviction of an offense that would prevent the issuance or renewal of 

a license, certificate of registry, or merchant mariner’s document.” Based upon the 

foregoing allegations, the Coast Guard sought revocation of Respondent’s credential as 

an appropriate sanction. 

On September 15, 2011, this matter came on for hearing in Mobile, Alabama, at 

the United States District Courthouse for the Southern District of Alabama. The 

proceeding was conducted in accordance with the Administrative Procedure Act (APA), 

as amended and codified at 5 USC §§551-59, and the Coast Guard procedural regulations 

set forth at 33 CFR Part 20. 
3

Coast Guard Investigating Officer (IO) LT Shawn Merrick and Senior 

Investigating Officer (SIO) Robert Foster appeared on behalf of the Coast Guard; 

Respondent appeared through counsel, John W. Beck, Esq., and was present in court. 

Both parties appeared, presented their respective cases, and rested. Two 

witnesses testified as part of the Coast Guard’s case-in-chief and the Coast Guard offered 

three exhibits into evidence, all of which were admitted. Respondent testified on his own 

behalf and offered the testimony of two additional witnesses. Respondent offered eleven 

exhibits into evidence, all of which were admitted.1

The court obtained four additional documents, post-hearing, from the Circuit 

Court of Mobile County, Alabama, Thirteenth Judicial Circuit, and labeled them ALJ 

Exhibits I – IV. Respondent’s counsel provided the court with Respondent’s 

psychological and psychiatric records, post-hearing. The court labeled those records as 

ALJ Exhibit V. 

Prior to adjourning the hearing, the court announced that it would afford the 

parties an opportunity to submit briefs in support of their respective legal positions upon 

receipt of the transcript. The court subsequently entered an Order setting deadlines for 

submission of post-hearing arguments and briefs by the parties. 

II. FINDINGS OF FACT 

 The Findings of Fact are based on a thorough and careful analysis of the 

documentary evidence, testimony of witnesses and the entire administrative record taken 

as a whole: 

 

1

 Citations referencing the transcript are as follows: Transcript followed by the volume number and page 

number (Tr. at __). Citations referring to Coast Guard Exhibits are as follows: Coast Guard followed by 

the exhibit number (i.e., CG Ex. 1, etc.); Respondent’s Exhibits are as follows: Respondent followed by the 

exhibit letter (Resp. Ex. A, etc.); ALJ Exhibits are as follows: ALJ followed by the exhibit Roman numeral 

(ALJ Ex. I, etc.). 
4

1. At all relevant times herein, Respondent Albert Lyle Blackwell was 

the holder of a Coast Guard-issued Merchant Mariner’s License. 

(credential). 

2. On or about July 29, 2010, Respondent Albert Lyle Blackwell was 

convicted by the Circuit Court of Mobile County, Alabama, Thirteenth 

Judicial Circuit, of violating Alabama State Code § 13A-13-3, Incest. 

(CG Ex. 2). 

3. At all relevant times herein, Alabama State Code § 13A-13-3, Incest, 

makes no reference to a “child victim.” 

4. Respondent was sentenced to ten-years’ confinement in the Alabama 

Department of Corrections. His jail time, however, was suspended on 

condition of his compliance with various probationary orders. (CG Ex. 

2). One particular condition of Respondent’s probation was that he 

was/is allowed to leave the State of Alabama during his periods of 

service as a “Tug Boat Captain.” (CG Ex. 2). 

5. Mr. James Wilson Crouse, is employed by the Coast Guard’s National 

Maritime Center, Martinsburg, West Virginia, as Chief of the Safety 

and Suitability Evaluation Branch. Mr. Crouse manages the branch 

that determines the safety and suitability of applicants for merchant 

mariner credentials. In that capacity, Mr. Crouse examines the criminal 

records of all applicants and determines whether there is any evidence 

“that might make the applicant a threat to the safety of persons on the 

vessel, life, property, or a threat to the National Security of the United 

States.” (Tr. at 43-45). 

6. Mr. James Wilson Crouse is “the” expert on the operation of the Coast 

Guard’s Safety and Suitability Evaluation Branch at the National 

Maritime Center and the application of Title 46 CFR §10.211, et. seq. 

(Tr. at 63). 

7. Mr. James Wilson Crouse testified that if he had evaluated 

Respondent’s credential application in light of Respondent’s criminal 

conviction for incest he would have denied Respondent’s application 

for a mariner’s credential. (Tr. at 68). 

8. Mr. James Wilson Crouse also testified that he would not deny another 

mariner’s application for a credential because of a criminal conviction 

for incest, in part because incest is not an offense listed in Table 

10.211(g) (Tr. at 97-98). 
5

9. Mr. James Wilson Crouse’s testimony on the question of whether a 

criminal conviction for incest would preclude issuance of a mariner’s 

credential, although contradictory, was credible. 

10. Mr. James Wilson Crouse’s determination that Respondent’s criminal 

conviction for incest was the product of a case-by-case post facto, 

analysis. (Tr. at 79-101). 

11. Respondent’s marine employer, Mr. Michael Paul Weeks of DeLoach 

Marine Services, being fully apprised of the nature of Respondent’s 

criminal conviction, regarded him as a safe, trustworthy and competent 

marine. (Tr. 154-156). 

12. Respondent had a twenty-year history of substance abuse, but is 

presently sober. (Tr. 171-173). 

13. Respondent has been diagnosed with “severe attention deficit disorder 

and alcohol and substance abuse,” a significant “mood disorder,” PostTraumatic Stress Disorder, a history of having been sexually abused in 

his youth, and bi-polar disorder. (Tr. 129-130, 152; Resp. Ex. B). 

14. Respondent poses a low risk of recidivism and that he is “fully capable 

of performing his duties” as the master of a vessel and that he was not 

unsafe on the seas or waterways. (Tr. at 142-143, 150). 

15. The Coast Guard proved that a criminal conviction for incest would 

preclude issuance or reissuance of a mariner’s credential. 46 USC 

§7703(2). 

16. The Coast Guard did not offer proof of aggravating circumstances 

arising from Respondent’s criminal conviction for incest and the 

potential impact of that conviction (and underlying conduct) on either 

safety at sea, discipline or the national security. 

III. SUMMARY OF DECISION 

The instant matter is governed by the interplay of 46 USC §7703(2) 

and 46 CFR §10.211 (and its attendant Table). The statute provides that a mariner’s 

credential may be suspended or revoked if that mariner is convicted of a criminal offense 

that would have prevented the original issuance or renewal of that credential. The 

regulation, in turn, provides a framework for the analysis of a wide spectrum of criminal 
6

offenses vis a vis the original issuance or renewal of a mariner’s document. Cases such 

as these require, essentially, a hindsight determination of whether Respondent would 

have been denied a credential, ab intio, if the Coast Guard would have known about his 

criminal conviction. 

For the reasons discussed herein, the Coast Guard PROVED by a preponderance 

of reliable, probative and credible evidence, that Respondent Albert Lyle Blackwell was 

convicted of a criminal offense that would otherwise preclude the issuance of a credential 

as contemplated by 46 USC §7703(2). 

IV. DISCUSSION 

A. General 

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. See 46 USC §7701. Pursuant to 46 CFR §5.19, an ALJ holds the authority 

to suspend or revoke a license or certificate in a hearing for violations arising under 46 

USC §7703. 

Determining the weight of the evidence and making credibility determinations as 

to the evidence is within the sole purview of the ALJ. See Appeal Decision 2640 

(PASSARO) (2003).2 Additionally, the ALJ is vested with broad discretion in resolving 

inconsistencies in the evidence, and findings do not need to be consistent with all of the 

evidence in the record as long as there is sufficient evidence to reasonably justify the 

findings reached. Id.; Appeal Decision 2639 (HAUCK) (2003). 

 

2

 Pursuant to 46 CFR §5.65, “[t]he decisions of the Commandant in cases of appeal . . . are officially 

noticed and the principals and policies enunciated therein are binding upon all Administrative Law Judges.” 
7

B. Jurisdiction 

“The jurisdiction of administrative bodies is dependent upon the validity and the 

terms of the statutes reposing power in them.” Appeal Decision 2620 (COX) (2001) 

(quoting Appeal Decision 2025 (ARMSTRONG) (1975)). “Where an Administrative 

forum acts without jurisdiction its orders are void.” Appeal Decision 2025 

(ARMSTRONG) (1975). Therefore, establishing jurisdiction is critical to the validity of 

a proceeding. Appeal Decisions 2677 (WALKER) (2008); 2656 (JORDAN) (2006). 

Jurisdiction is a question of fact that must be proven. Appeal Decisions 2620 (COX)

(2001); 2425 (BUTTNER) (1986); 2025 (ARMSTRONG) (1975) (stating “jurisdiction 

must be affirmatively shown and will not be presumed”). 

In the instant case, the Coast Guard proved that at all relevant times mentioned 

herein Respondent Albert Lyle Blackwell was the holder of a Coast Guard-issued 

Merchant Mariner’s credential. That is the only requisite jurisdictional finding necessary 

in a case such as this. 

C. Burden of Proof 

In this case, like all Suspension and Revocation cases, the Coast Guard bears the 

burden of proof to establish the requisite facts mandated by the organic statute, 46 USC 

§7703, and the implementing regulations, 46 CFR Part 5; Part 10, Subpart B; 33 CFR 

Part 20. The Administrative Procedure Act, 5 USC §§551-559, applies to Coast Guard 

Suspension and Revocation hearings before United States ALJs. The APA authorizes 

imposition of sanctions if, upon consideration of the entire record as a whole, the charges 

are supported by reliable, probative and substantial evidence. See 5 USC §556(d). The 

Coast Guard bears the burden of proof to establish the charges are supported by a 
8

preponderance of the evidence. 33 CFR §§20.701, 20.702(a). Similarly, a respondent 

bears the burden of proof in asserting his affirmative defense by a preponderance of the 

evidence. 33 CFR §§20.701, 20.702; Appeal Decisions 2640 (PASSARO) (2003); 2637 

(TURBEVILLE) (2003). “The term substantial evidence is synonymous with 

preponderance of the evidence as defined by the U.S. Supreme Court.” Appeal Decision 

2477 (TOMBARI) (1988) (citing Steadman v. SEC, 450 U.S. 91, 107 (1981). The 

burden of proving a fact by a preponderance of the evidence “simply requires the trier of 

fact ‘to believe that the existence of a fact is more probable than its nonexistence before 

[he] may find in favor of the party who has the burden to persuade the [judge] of the 

fact’s existence.’” Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers Pension 

Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371-72 

(1970) (Harlan, J., concurring) (brackets in original)). 

D. Discussion of the Evidence 

 At the hearing, the Coast Guard bore a three-part burden of proof to establish: 

1. That Respondent was convicted of a criminal offense, and 

2. That the conviction would have prevented the original issuance or 

renewal of that credential, and 

3. An evidentiary basis for revocation of Respondent’s credential. 

In this instance, it was undisputed that Respondent was convicted in the Circuit 

Court of Mobile County, Alabama, Thirteenth Judicial Circuit, of violating Alabama 

State Code §13A-13-3: incest. Respondent did not plead to, nor was he convicted of: 

rape in the first degree3

; rape in the second degree4; sodomy in the first degree5; sodomy 

 

3

 Alabama State Code §13A-6-61. 

4

 Alabama State Code §13A-6-62. 

5

 Alabama State Code §13A-6-63.
9

in the second degree6

; sexual misconduct7; sexual abuse in the first degree8; indecent 

exposure9

; or enticing a child to enter a vehicle, house, etc. for immoral purposes.10 

A criminal investigation report indicated that Respondent had engaged in sexual 

intercourse with his biological child, a daughter, on or about between 2005 and 2008. 

(CG Ex. 3). The criminal indictment, however, did not specify the number of times 

Respondent had sex with his daughter, nor on what date(s) or at what precise 

geographical location(s). Rather, the 2008 Grand Jury indictment only alleges a single 

accusation of incest, in violation of Alabama State Code §13A-13-3(a)(1). (CG Ex. 2). 

Although the Coast Guard’s Complaint (and its post-hearing brief) gratuitously, 

repeatedly, allege that Respondent was convicted of “incest – (child victim),” there is no 

Alabama statutory element which describes either a “victim” or a “child victim” for the 

purposes of incest. The Alabama incest statute makes no reference whatsoever to the 

term “victim” or to the age or specific gender of the parties.11

The record also reflects that on March 3, 2010, Respondent, through counsel, filed 

a Notice of Intent to Plead Guilty in case no. cc-08-3966 and, specifically, that cases cc08-3967, cc-08-3964, cc-08-3965 would be resolved, nolle prosequi,”12 that is to say, 

“without prosecution.” (CG Ex. 2). The record further reflects that on July 29, 2010, 

Respondent entered a plea of guilty to one charge of incest levied in the indictment and 

that he was sentenced to ten-years’ confinement in the Alabama Department of 

 

6

 Alabama State Code §13A-6-64. 

7

 Alabama State Code §13A-6-65. 

8

 Alabama State Code §13A-6-66. 

9

 Alabama State Code §13A-6-68. 

10 Alabama State Code §13A-6-69. 

11 A fair reading of the comments to Alabama State Code §13A-13-3 discloses the legislative intent to 

specifically avoid making reference to either a “victim” or a “victim’s age” or specific relation to the other 

party. The Section “is limited to defining the relationships which constitute the crime of incest.” Id. 12 Cases “cc-08-3967,” “cc-08-3964,” and “cc-08-3965” described one charge of incest and two charges of 

rape, second degree (sex with a person under the age of 16). (ALJ Ex. I, III, & IV). 
10

Corrections—jail time suspended, conditioned upon on his compliance with various court 

orders. (CG Ex. 2). 

In addition to the fact that he was not incarcerated, Respondent’s probation 

specifically allowed him to leave the State of Alabama during his periods of service as a 

“Tug Boat Captain.” (CG Ex. 2). 

Title 46 USC §7703(2) directs that if a credentialed-mariner is convicted of a 

criminal offense, that credential may be either suspended or revoked if that criminal 

offense is one which would have precluded original issuance or renewal of that 

credential. As a matter of practice, in cases such as these, the court is asked to look back 

in time to determine whether a credential would have been originally issued (or reissued) 

to a mariner, if had the Coast Guard known of the conviction at the time. 

The regulatory scheme provided at 46 CFR Subpart B, and most particularly at 46 

CFR §10.211, et. seq., provides the framework for appropriate Coast Guard officials to 

determine whether a mariner is an appropriate candidate for original issuance or renewal 

of his/her credential. 

That the Coast Guard engages in a post facto determination of whether a criminal 

conviction for incest would have been disqualifying plainly raises Constitutional issues of 

notice, vagueness and due process.13 Those inquiries, while intriguing, must be resolved 

another day.14

 

13 Respondent’s Post-Hearing Brief contends that the Coast Guard’s procedure in such cases is 

unconstitutional because it does not provide advance notice to a mariner of what conduct is proscribed. 

Respondent argues that the decision whether a given criminal offense is disqualifying is an entirely ad hoc, 

subjective decision whereby a mariner could never know—in advance of his conduct—if he was exposing 

himself to the jeopardy of a Suspension and Revocation proceeding. The legal touchstone, here, is one of 

prior notice. In United States v. Lanier, 520 U.S. 259, 265 (1997), the Supreme Court said that the 

fundamental requirement of a law is that it must provide adequate advanced notice of what is proscribed; it 

is what Justice Holmes described as fair warning ... in language that the common world will understand, of 

what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line 
11

The immediate factual question before this court is whether Respondent’s 

conviction for incest would have prevented the original issuance or renewal of a 

credential, per 46 USC §7703(2). 

To reiterate, 46 CFR Subpart B, and most particularly at 46 CFR §10.211, et. seq. 

appear to define the procedures employed by the Coast Guard in determining a mariner’s 

original fitness for a credential.15 There is no reference in any of the regulations that 

 should be clear. Id. (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). In other words, no person 

should be held responsible for conduct which he or she could not reasonably understand to be proscribed. 

Id. at 265-66. This is the essence of the “vagueness doctrine.” This is the essence of Respondent’s 

objections to the Coast Guard’s regulation, here, and the procedures it follows in attempting to revoke his 

credential, based upon his criminal conviction. See Appeal Decision 2074 (LOWEN) (1976) “For 

Appellant to be found to have committed misconduct as alleged he must be shown to have actual or 

constructive notice that his actions were wrongful.”

14 Those Commandant’s Decisions on Appeal (CDOAs) that touch upon constitutional concerns provide 

conflicting guidance. In Appeal Decisions 2613 (SLACK) (1999) and 1862 (GOLDEN) (1971), the 

Commandant bluntly said of Constitutional questions: ―“[i]f appellant wishes to complain about my 

[regulatory] definitions and interpretations he is free to do so, but this is not the forum in which he will 

obtain his desired remedy.” Such logic is perplexing as both SLACK and GOLDEN rely upon appellate 

authority that says an ALJ cannot hold a statute unconstitutional; however, neither case cites federal 

appellate authority on the question whether an agency, or an ALJ, can hold a regulation unconstitutional. 

Accord, Appeal Decision 2202 (VAIL) (1980). 

Yet in Appeal Decision 2632 (WHITE) (2002), the Vice Commandant said: ― “[w]ith respect to 

determinations of Constitutionality, the courts have long held that ‘. . . an . . . agency may always determine 

questions about its own jurisdiction.’” Id. (internal citations omitted). Therefore, WHITE undercuts the 

blanket prohibition advanced by SLACK and GOLDEN and says that an ALJ may, in fact, determine 

constitutional questions about agency jurisdiction in Suspension and Revocation cases. 

A review of Supreme Court and federal circuit authority renders mixed results. In Thunder Basin 

Coal Co. v. Reich, 510 U.S. 200, 215 (1994), the Supreme Court shed light on the authority of an 

administrative agency’s authority to rule on the constitutionality of a congressionally-enacted statute 

wherein the Court noted its agreement that ―“adjudication of the constitutionality of congressional 

enactments has generally been thought beyond the jurisdiction of administrative agencies (citations 

omitted). This rule is not mandatory . . .” Id. at 215 (emphasis added). Thus, Thunder Basin begs the 

question whether, if a federal administrative agency has the power to hold a statute unconstitutional, would 

it not have a more probable authority to hold a regulation unconstitutional? The Supreme Court has not 

squarely addressed that question. 

In McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial 

Conf. of the United States, 264 F.3d 52, reh’g en banc den., 278 F. 3d 29, cert. den. 537 U.S. 821 (D.C. Cir. 

2001), the court said that administrative agencies have an obligation to address properly presented 

constitutional claims which do not challenge agency actions mandated by Congress. In the instant case, 

Respondent does not suggest that the Coast Guard’s institution of revocation proceedings be ruled 

unconstitutional. Rather, he contends that the regulations under which he was charged (i.e., 46 CFR 

§10.211, et. seq.) be ruled unconstitutional; and as such, he does not challenge a Congressionally-mandated 

duty imposed on the Coast Guard.

15 Interestingly, Title 46 CFR §10.211(a) says that a criminal record review of a prospective mariner is 

permissive—not mandatory. (Query: If not all original credential applications require a criminal record 

review, why would Respondent be subject to such a review?)
12

dictates a certain outcome; that is, there is no “list” of automatically-disqualifying 

offenses. Nor is there a “bright line” rule or test which clearly states who will (and who 

will not) receive a credential. Rather, the regulations provide suggestive guidance for the 

Coast Guard decision-maker at the National Maritime Center. 

Subsection (d) of 46 CFR §10.211 asks if the criminal record review reveals 

whether the applicant is “not a safe and suitable person or cannot be entrusted with the 

duties and responsibilities of [the credential].” The definition of a “safe and suitable 

person” is found at 46 CFR §10.107, which reads: 

[Safe and suitable] means a person whose prior record, including 

but not limited to criminal record . . . provides no information 

indicating that his . . . character and habits of life would support 

the belief that permitting such a person to serve under the 

[credential] . . . would clearly be a threat to the safety of life or 

property, detrimental to good discipline, or adverse to the interest 

of the United States. (emphasis added) 

Based upon a plain reading of the definition, the requirement is clear that the 

mariner’s character and habits of life must have a demonstrable nexus, or direct relation, 

to either safety, discipline or the interests of the United States. Proof of this nexus is partand-parcel of the Coast Guard’s burden. 

 Subsection (g) of the regulation directs an appropriate Coast Guard decisionmaker to use “Table 10.211(g) to evaluate applicants who have criminal convictions,” but 

cautions that the table is not an all-inclusive list of criminal behavior. 

Taken together, however, the court reads to foregoing regulations and table to 

permit an appropriate Coast Guard official to make a case-by-case determination whether 

mariner’s “character and habits of life” bear a direct nexus to safety at sea, discipline 

aboard a maritime vessel or the national interest. 
13

As the facts and evidence produced at the hearing revealed, that ad hoc

determination in the instant case was, and is, a highly individualized process. 

The court heard extensive testimony from Mr. James Wilson Crouse. Mr. Crouse 

is employed by the Coast Guard’s National Maritime Center, in Martinsburg, West 

Virginia. Mr. Crouse, a retired Coast Guard officer, presently serves the as the Chief of 

the Safety and Suitability Evaluation Branch. (Tr. at 43-44). Mr. Crouse manages the 

branch that “determines the safe and suitability of applicants for merchant mariner” 

credentials. (Tr. at 44). In that capacity, Mr. Crouse examines the criminal records of all 

applicants and determines whether there is any evidence “that might make the applicant a 

threat to the safety of persons on the vessel, life, property, or a threat to the national 

security of the United States.” (Tr. at 45). (The court accepts Mr. Crouse’s definition of 

the regulatory phrase “interests of the United States” to mean “the national security of the 

United States.”) 

Plainly said, Mr. Crouse is “the” expert on the operation of the Coast Guard’s 

Safety and Suitability Evaluation Branch at the National Maritime Center and the 

application of Title 46 CFR §10.211, et. seq. to credential applications. (Tr. at 63). 

As the cornerstone of the Coast Guard’s case, Mr. Crouse testified that if he had 

evaluated Respondent’s incest conviction in light of the appropriate regulations and table, 

he would have denied Respondent’s original application for a mariner’s credential. (Tr. at 

68). 

It is upon this testimony that the Coast Guard’s case rests: that based upon Mr. 

Crouse’s post facto analysis, Respondent’s conviction was “an offense that would prevent 
14

the issuance or renewal” of a credential because he thought a conviction for incest was 

not “good character and habits of life.” (Tr. at 76). 

Mr. Crouse explained that incest renders Respondent an inherently unsuitable 

mariner, saying “it abandons certain social values that inherent in being a military officer, 

being an officer aboard a vessel. It abandons moral fortitude.” (Tr. at 87). (Query: Mr. 

Crouse’s reference to Respondent’s service as a ‘military officer?’) This testimony 

constituted the Coast Guard’s proof that Respondent’s “character and habits of life” bear 

a nexus to either safety or discipline.16 

Thus, the Coast Guard presented honest, but contradictory testimony from the 

same witness regarding the import of a criminal conviction for incest. On the one hand, 

Mr. Crouse testified he would deny/revoke this Respondent’s credential because of a 

conviction for incest—and, on the other hand, would not deny another mariner a 

credential in the event of a conviction for the same crime. 

The court accepts as credible Mr. Crouse’s view of “what would have happened” 

had Respondent’s conviction (and the unique and the particular facts of his case) 

preceded his original application for a credential. In this case, the court assigns great 

weight to Mr. Crouse’s expertise and his authority as the Coast Guard’s decision maker 

on applications. The court defers to his statement that in this particular case, 

Respondent’s application would have been denied. Thus, given the lessened standard of 

proof—here, only by a mere preponderance—the Coast Guard met its burden of proof. 

 

16 It must be noted, however, that Mr. Crouse admitted that in other circumstances, he would not deny a 

mariner’s application for a credential because of a criminal conviction for incest. (Tr. at 97-98). Mr. Crouse 

further added that he would not revoke or deny a mariner’s credential because “incest” was “not here on the 

table.” [Table 10.211(g)] (Tr. at 98). 
15

V. ULTIMATE FINDINGS OF FACT & CONCLUSIONS OF LAW 

1. At all relevant times herein, Respondent Albert Lyle Blackwell was 

the holder of a Coast Guard-issued Merchant Mariner’s License. 

(credential). 

2. On or about July 29, 2010, Respondent Albert Lyle Blackwell was 

convicted by the Circuit Court of Mobile County, Alabama, Thirteenth 

Judicial Circuit, of violating Alabama State Code § 13A-13-3, Incest. 

(CG Ex. 2). 

3. Respondent was sentenced to ten-years’ confinement in the Alabama 

Department of Corrections. His jail time, however, was suspended on 

condition of his compliance with various probationary orders. (CG Ex. 

2). (CG Ex. 2). 

4. The Coast Guard proved that Respondent Albert Lyle Blackwell’s 

unique criminal conviction for incest would preclude issuance or 

reissuance of a mariner’s credential. 46 USC §7703(2). 

5. The Coast Guard did not offer proof of aggravating circumstances 

arising from Respondent’s criminal conviction for incest and the 

potential impact of that conviction (and underling conduct) on either 

safety at sea, discipline or the national security. 

VI. SANCTION 

It is appropriate at this juncture to ensure this Decision and Order is read in the 

appropriate light; to understand what these proceedings are and what they are not. These 

are administrative licensure proceedings. As the Commandant has repeatedly said, the 

purpose of Coast Guard suspension and revocation proceedings is to promote safety at 

sea. Appeal Decision 2689 (SHINE) (2010). See also 46 USC §7701. 

These are not criminal proceedings. The criminal prosecution and sentencing of 

Respondent -- indeed, the vindication of the public’s outrage -- were, and are, the sole

province of the State of Alabama. It is not for this court, or any other, to supplant its 

wisdom for that of the Alabama criminal court. Rather, this court’s hand must be guided 
16

entirely by the applicable law and not by human passions that certainly arise, given the 

circumstances underlying Respondent’s conviction. 

Title 46 US Code §7703(2) says that a mariner’s credential may be suspended or 

revoked upon proof the mariner was convicted of an offense that would have prevented 

the original issuance or renewal of that credential. Hence, the court is vested with the 

discretion to assign either a suspension or a revocation in cases such as these, based upon 

the evidence and 46 CFR §5.569 and its attendant table. 

The court notes that neither 46 CFR §5.569, nor its attendant table, address cases 

such as the one at bar. There simply is no provision for a mariner who has been convicted 

of a criminal offense that would preclude the original issuance or reissuance of a 

credential. Table 5.569 does make provision for “Failure to comply with U.S. law” and 

suggests a suspension of between one and three months. There is no other category that 

comes closer to the issue at bar. 

Although the court has found that Respondent’s conviction was one which would 

have precluded the original issuance/renewal of a credential; the Coast Guard 

nevertheless failed to prove why Respondent’s credential ought be revoked. 

The authority to impose sanctions at the conclusion of a case is exclusive to the 

Administrative Law Judge. 46 CFR §§5.567; 5.569(a); Appeal Decision 2362 

(ARNOLD) (1984). The nature of this non-penal administrative proceeding is to 

“promote, foster, and maintain the safety of life and property at sea.” 46 USC §7701; 46 

CFR §5.5; Appeal Decision 1106 (LABELLE) (1959). 
17

Title 46 CFR §5.569 says that “except for acts of offenses for which revocation is 

mandatory,” the court should consider three salient factors in assessing an appropriate 

order. Those factors are: 

Remedial Action: Here, Respondent provided evidence that he sought psychiatric 

and psychological counseling to assist him with his various diagnoses which contributed 

to the commission of the crime of incest. (Resp. Ex. A, B). 

Respondent admitted that his incestuous conduct with his daughter was 

facilitated, in part, by his life-long alcoholism and drug abuse. He testified that he had a 

twenty-year history of substance abuse, but that he is presently sober. (Tr. 171-173). 

Respondent’s treating psychologist, Dr. Daniel Koch, testified that he had diagnosed 

Respondent with “severe attention deficit disorder and alcohol and substance abuse,” a 

significant “mood disorder,” and a history of having been sexually abused in his youth. 

The Respondent’s medical records also reveal diagnoses of Bi-polar Disorder and Post 

Traumatic Stress Disorder. (Tr. 129-130, 152). 

Respondent testified that he had never consumed alcohol or used illegal drugs 

while aboard a vessel. (Tr. at 173). His employer testified that Respondent had never 

failed or refused a drug test. (Tr. at 157). Dr. Koch generally opined that Respondent did 

not pose a risk of recidivism. (Tr. at 150). Moreover, Dr. Koch testified that despite his 

several diagnoses, Respondent is “fully capable of performing his duties” as the master of 

a vessel and that he was not unsafe on the seas or waterways. (Tr. at 142-143). 

Because the Coast Guard offered no evidence to rebut Respondent’s efforts at 

remediation, the court accepts them as proven. 
18

Respondent’s Prior Records: The court notes that the Respondent held a 100-

ton license, Issue No.4, which had not been the subject of previous disciplinary action. 

The court also heard testimony from Mr. Michael Paul Weeks, an operations and 

risk manager for Respondent’s employer, DeLoach Marine Services. (Tr. at 154-155). 

Mr. Weeks testified that Respondent’s service as a vessel Master was “flawless....I can’t 

say enough about him. He’s a good employee” (Tr. at 156). Specifically, Mr. Weeks said 

that he was fully aware of the nature of Respondent’s criminal offense, and testified: 

The Court: Now, when you received that information, did that cause you 

any concern about the Respondent’s fitness for employment with your 

company or his ability to safely command or navigate a vessel? 

Mr. Weeks: No. 

(Tr. at 164-165) 

Respondent’s other supervisors and co-workers, who provided written statements 

in support of Respondent, were in accord. Because it is unknown whether those other 

supervisors and co-workers were aware of Respondent’s criminal conviction or the 

underlying circumstances, the court assigns only marginal probative weight to those 

opinions. (Resp. Ex. D - K). 

The Coast Guard produced no evidence of any prior sanctions or disciplinary 

action. Moreover, the Coast Guard simply did not present any evidence which related 

Respondent’s conviction to either safety at sea, discipline or the national security. This 

failure weighed heavily in the court’s decision when assigning an appropriate sanction. 

Mitigation or Aggravation: The Coast Guard presented no probative evidence 

(beyond speculative argument) in aggravation stemming from Respondent’s conviction. 

The Coast Guard’s post-hearing brief stated: “Let it be noted that none of the substance 
19

abuse was ever noted on [Respondent’s] application for Coast Guard credentials, a matter 

of aggravation in this case.” (emphasis added). The Coast Guard badly misapprehends 

the nature of aggravating evidence. Aggravation means the adverse impact of a 

respondent’s offense upon factors related to safety at sea. (If the Coast Guard wanted to 

charge Respondent for failing to disclose his addiction on a credential application, then it 

ought to have done so. Thus, the court will not consider uncharged misconduct as an 

aggravating factor.) 

The Coast Guard might have offered affirmative proof of how a conviction for 

incest (or the underlying conduct) might pose a threat to safety at sea, discipline, or the 

national security; but it did not. This omission weighed heavily in the court’s 

determination of an appropriate sanction. In fact, the Coast Guard’s only evidence in 

regard to mitigation or aggravation was Coast Guard Exhibit 2, a court order allowing 

Respondent to leave the State of Alabama during periods of service as a mariner. The 

Coast Guard’s own evidence militates against an order of revocation. 

VII. CONCLUSION 

No one should read this decision as an endorsement of Respondent’s behavior or 

whether this court personally believes Respondent is a suitable and safe mariner. Rather, 

this decision is guided by the applicable law and is based solely upon the facts adduced at 

the hearing and the controlling regulations. For the reasons discussed above, the Court 

finds the Coast Guard has PROVED the allegation that Respondent was convicted of an 

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

merchant mariner’s document (credential). The Coast Guard did not, however, provide 

an evidentiary basis for the revocation it proposes. 
20

Using Table 5.569 and the evidence as a basis, Respondent’s credential is 

therefore SUSPENDED for three months. Revocation is not appropriate herein as the 

Coast Guard failed to produce any factors in aggravation, etc. as discussed, supra. 

WHEREFORE, 

VII. ORDER 

IT IS HEREBY ORDERED, that the allegations contained in the Coast Guard’s 

Complaint were PROVED and that Respondent Albert Lyle Blackwell’s Coast Guardissued Merchant Mariner’s License is SUSPENDED FOR THREE MONTHS. 

PLEASE TAKE NOTE, that issuance of this Decision and Order serves as 

notice of the parties’ right to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart 

J is provided as Attachment B. 

Done and dated this the 6th day of December, 2011, 

at New Orleans, Louisiana. 

 ______________________________ 

 HON. BRUCE TUCKER SMITH 

 ADMINISTRATIVE LAW JUDGE

 UNITED STATES COAST GUARD
21

ATTACHMENT A – EXHIBIT & WITNESS LIST

COAST GUARD EXHIBITS

1. Albert Blackwell Merchant Mariner’s Document Application and 

credential (5 pages)

2. State of Alabama v. Blackwell, Albert, Mobile County, Alabama Circuit 

Court Case No. CC-2008-003966 certified records (11 pages) 

3. Mobile Police Department, Follow-Up Investigative Report, dated May 

20, 2008 (12 pages) 

COAST GUARD WITNESSES 

1. Cpl. Michael Shavers, Mobile Police Department 

2. James Wilson Crouse, United States Coast Guard National Maritime 

Center 

RESPONDENT EXHIBITS

A. C. Van Rosen, Ph.D., P.C., Outpatient Forensic Evaluation Report, dated 

September 8, 2008 (11 pages) 

B. Mobile Psychological Associates, Evaluation Report, dated May 26, 2010 

(3 pages) 

C. River Oaks Hospital, Medical Records, (116 pages) 

D. Breton J. Mcvay, Character Reference Letter, dated April 21, 2010 (1 

page) 

E. Laura Chatom, Character Reference Letter, dated April 21, 2010 (1 page) 

F. Bryan Englett, Character Reference Letter, dated May 3, 2011 (1 page) 

G. Larry Fitch, Owner-Operator Mohawk Transportation, LLC, Character 

Reference Letter, dated April 16, 2008 (1 page) 

H. Brendan L. Mclaughlin, Character Reference Letter, dated April 21, 2010 

(1 page) 

I. Thomas R. Paine, General Manager Deloach Marine Services, Character 

Reference Letter, dated September 14, 2011 (1 page) 

J. Frank Yoho, Port Captain Deloach Marine Services, Character Reference 

Letter, dated September 14, 2011 (1 page) 

K. Michael Paul Weeks, Safety-Claims-Training Deloach Marine Services, 

Character Reference Letter, dated September 14, 2011 (1 page) 

RESPONDENT WITNESSES 

1. Dr. Daniel Koch 

2. Michael Paul Weeks, Deloach Marine Services 

3. Albert Blackwell 

ALJ EXHIBITS

I. State of Alabama v. Blackwell, Albert, Mobile County, Alabama Circuit 

Court Case No. CC-2008-003967 certified records (7 pages) 

II. State of Alabama v. Blackwell, Albert, Mobile County, Alabama Circuit 

Court Case No. CC-2008-003966 certified records (7 pages) 
22

III. State of Alabama v. Blackwell, Albert, Mobile County, Alabama Circuit 

Court Case No. CC-2008-003965 certified records (7 pages) 

IV. State of Alabama v. Blackwell, Albert, Mobile County, Alabama Circuit 

Court Case No. CC-2008-003964 certified records (8 pages) 

V. Respondent psychological/psychiatric records: 

• C. Van Rosen, Ph.D., P.C. Outpatient Forensic Evaluation Report, 

dated September 8, 2008 (11 pages) 

• Authorship unknown, handwritten note, dated July 28, 2009 (1 

page) 

• MMPI-2 Extended Score Report, dated July 28, 2009 (15 pages) 

• Carl Brutkiewicz, M.D., office notes, dated August 4, 2009 (1 

page) 

• Authorship unknown, handwritten note, dated September 14, 2009 

(1 page) 

• T.O.V.A. Visual Performance Test Report, dated October 22, 2009 

(6 pages) 

• Authorship unknown, unknown text, p. 220 “Diagnostic 

Categories,” handwritten notes by unknown author and hand dated 

October 22, 2009 (1 page) 

• Authorship unknown, drawing of female, dated October 22, 2009 

(1 page) 

• Authorship unknown, drawing of a house, dated October 22, 2009 

(1 page) 

• Mobile Psychological Associates, evaluation report, dated May 26, 

2010 (3 pages) 

• Authorship unknown drawing of a house, dated October 22, 2009 

(1 page) 

• Authorship unknown, drawing of a tree, dated October 22, 2009 (1 

page) 

• Carl Brutkiewicz, M.D., office notes, dated October 26, 2009; 

November 2, 2009; November 23, 2009; March 8, 2010; April 22, 

2010 (1 page) 

• Authorship unknown, handwritten notes, dated April 22, 2010 (1 

page) 

• Carl Brutkiewicz, M.D., office notes, dated April 22, 2010; June 2, 

2010 (1 page) 

ALJ WITNESS LIST 

none 
23

ATTACHMENT B – 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 -- 
24

(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.