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September 20, 1967

Frederick Innis Wood INGHAM, Plaintiff,
Willard J. SMITH, Commandant, United States Coast Guard, Defendant

Herlands, District Judge.

The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

On November 1, 1966, plaintiff commenced this action, in the nature of mandamas brought under the Administrative Procedure Act, Title 5, U.S.C.A., Section 703, to declare the defendant's order of August 17, 1966, affirming the revocation of plaintiff's Merchant Mariner's Document, "to be null and void".

 The complaint alleges that plaintiff was a deck maintenance man on board a merchant vessel of the United States, the SS Flying Enterprise II; that, according to a charge filed against him on June 24, 1965, pursuant to Title 46, U.S.C.A., Section 239, plaintiff possessed marihuana on May 29, 1964, while he was on the vessel at the port of San Juan, Puerto Rico; and the second specification of the charge accused him of having purchased marihuana on or about May 25, 1964 at or about Panama City, Canal Zone.

 The complaint further alleges that a hearing was held before a United States Coast Guard Examiner who, on December 2, 1965, issued an order revoking plaintiff's Merchant Mariner's Document. The Examiner found plaintiff guilty of the specification of having possessed marihuana but exonerated him of the specification of having purchased marihuana.

 On December 10, 1965, plaintiff filed a notice of appeal with the Commandant of the United States Coast Guard. On February 21, 1966, plaintiff's request for a temporary Merchant Mariner's Document pending administrative appeal was denied. Oral argument before the Coast Guard Board of Appeals was had on March 29, 1966. Defendant's decision and order affirming the Examiner's decision and order of revocation were rendered on August 17, 1966. The complaint seeks to nullify the order of August 17, 1966 as "illegal, erroneous, arbitrary, capricious and completely contrary to the evidence and law produced by the plaintiff".

 On February 7, 1967, plaintiff applied and argued in this Court for an order directing defendant to issue a temporary Merchant Mariner's Document that would remain in effect until such time as a final decision has been rendered by this Court in this action. On February 13, 1967, Judge Constance Baker Motley of this Court, granted plaintiff's motion for the issuance of such a temporary document. Presumably, plaintiff has been working under that temporary document.

 By motion argued before this Court on September 5, 1967, the Government has moved, pursuant to Federal Rules Civil Procedure 56, for a summary judgment. Plaintiff orally cross-moved for summary judgment. In his affidavit sworn to August 10, 1967, plaintiff's attorney opposes defendant's summary judgment motion and supports his own oral cross-motion. The Government has filed the appropriate statement under Rule 9(g) of the General Rules of this Court whereas the plaintiff has failed to file a counter-statement as required by that rule. Consequently, as provided in Rule 9(g), "All material facts set forth in the statement required to be served by the moving party [the Government] will be deemed to be admitted" by plaintiff. According to the Government's 9(g) statement, "the only material facts are the decision and order of defendant and the contents of the administrative record". In his affidavit, plaintiff's attorney states, (page 2) "plaintiff relies entirely on the certified administrative record that will be submitted to the court".

 In elaborating the various grounds for the cross-motion, plaintiff's attorney, in his affidavit, page 2, submits the following points:

 1. That a vital portion of the record has been omitted in that, on March 29, 1966, he argued plaintiff's appeal before a three member board at United States Coast Guard Headquarters; that each of the three members submitted a written opinion on which defendant based his decision; and that "these decisions should be part of the record so that the court will have a fair basis upon which it can make its decision".

 2. That defendant's decision was arbitrary, capricious and unsupported by substantial evidence and, hence "plaintiff is entitled to judgment as a matter of law".

 In a thirteen-page memorandum opposing defendant's summary judgment motion and supporting plaintiff's cross-motion, plaintiff's attorney makes the following specific points:

 1. That Government Exhibits 1, 2, 3 and 4, reports of chemical analyses, were never produced and made part of the official record; that plaintiff was never given a copy of said exhibits; and that any action taken by defendant with respect to said exhibits was "beyond the scope of the defendant's powers" and defendant had "no power to correct the mistakes and errors made on the hearing level".

 2. That seven objections made by plaintiff's attorney and noted on the record "were never ruled upon".

 3. That the Hearing Examiner's decision is illogical and arbitrary because "both specifications 1 and 2 must stand or fall together" and since plaintiff was exculpated of the second specification charging purchase of marihuana, he should have been acquitted of the first specification charging possession.

 4. That "there were so many inconsistencies in the testimony of the five Customs Officers that the Examiner could not render a decision of revocation".

 5. That "there are no exhibits in evidence showing what the chemical analyst showed" especially since "the exhibits number 1, 2, 3 and 4 were never made part of the record"; that "there is a conflict as to just where the gleanings from plaintiff's pockets were supposed to have been taken, and as to who had possession of the gleanings".

 6. That "defendant never produced the written confession the plaintiff was supposed to have signed. This certainly would have been the best evidence".

 We now turn to a detailed consideration of each of plaintiff's contentions.

 The Court has examined the 264 pages that constitute the complete record of proceedings on appeal before the Commandant and the Commandant's decision on appeal. Document A sets forth the charge of "misconduct" which contains the two specifications as already indicated: the first, charging wrongful possession of marihuana on or about May 29, 1964; the second, charging the purchase of marihuana on or about May 25, 1964.

 Document B, consisting of 29 pages, covers the proceedings on July 1 and 21, 1965, September 16, 24 and 30, 1965. The record shows that a hearing was held pursuant to Title 46, U.S.C.A., Section 239. Plaintiff was represented by counsel and the Hearing Examiner advised plaintiff of his various rights. The case against plaintiff was presented by Investigating Officer Lieutenant R. V. Ricard. According to the opening statement of Lieutenant Ricard, the drug was found on board ship and traces of the drug were found in the pockets of plaintiff's clothing.

 The Government submitted applications to take oral depositions from four witnesses in San Juan, Puerto Rico; plaintiff's attorney objected to the taking of the depositions. The objection was overruled. Plaintiff's attorney was given permission to attend and to cross-examine orally the deponents. The four witnesses involved were: R. A. Torrens, Customs Agent in Charge, Francisco G. Colon, Customs Agent, E. R. Gilmore, Customs Port Investigator and Graham Castillo, Chemist in Charge, all of San Juan. It was agreed that any objections to questions during the depositions should be made at the time but that rulings on the objections were reserved for the Examiner.

 At the adjourned session of July 21, 1965, the Government applied for the taking of three additional oral depositions of witnesses at San Juan, there being no objection interposed by plaintiff's attorney.

 At the adjourned hearing of September 16, 1965, transcripts of the following seven depositions were turned over to the Investigating Officer and to plaintiff's attorney, as follows: Pedro J. Alberio, Octavio D. Pinol, E. R. Gilmore, Gonzalez Colon, Rafael A. Torrens, Graham Castillo, Juse Martinez Mateo.

 At the adjourned hearing of September 24, 1965, the Government offered in evidence the depositions of the seven foregoing deponents. Plaintiff's attorney made no objection. The Government rested. There was discussion about the Castillo deposition (Government's Exhibit 6) which was supposed to have attached to it a photocopy of Customs Form 6418 but which was not attached.

 It was stipulated that a certain paper, dated March 18, 1965, supposedly Bureau of Customs Order to Destroy and Certificate of Destruction for Forfeited, Abandoned, or Unclaimed Merchandise, reads: "6.88 grams of marijuana wrapped in a piece of paper and a piece of adhesive tape".

 At the adjourned session of September 30, 1965, the Hearing Examiner referred to the depositions of Gilmore, Alberio and Pinol, who testified that a package was found taped to the back of the middle drawer of a desk which plaintiff admitted was under his control. Plaintiff's attorney argued that Torrens' deposition stated that ...

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