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November 15, 1997


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 Before the Court on Monday, November 10, 1997 at 5:00 p.m., was the motion of the plaintiff, Francis A. Crowley, a midshipman attending the United States Merchant Marine Academy, for an Order to Show Cause and a stay of the disciplinary hearing of the Executive Board of the Academy, scheduled to commence on Wednesday, November 12, 1997, to determine misconduct charges which may result in Crowley's dismissal.


 The Second Circuit has described the defendant Merchant Marine Academy (the "Academy"), located at Kings Point, New York, as:

The instrumentality of the federal government charged with the responsibility of training the officers of the United States Merchant Marine. Although the primary responsibility of the merchant marine is the transport of water-borne commerce, in times of need it acts as an auxiliary to the United States Navy and on graduation, a Cadet may receive a Reserve Commission in the Navy. Indeed, because of the vital national interest served by the merchant marine and the hazards which are commonly encountered, it accurately may be said that the responsibilities of merchant marine personnel are comparable to those of the Navy and Coast Guard. Chief Justice Maltbie once observed that the successful prosecution of (the Second World War) would hardly have been possible without the transportation facilities afforded by merchant vessels operating under the war shipping administration and that the persons who served in those vessels were subject to most serious danger of injury or loss of life from risks directly inherent in armed conflict at sea and on the shore ( Walsh v. Jenks, 135 Conn. 210, 62 A.2d 773 [1948]). The Regulations of the Academy themselves recite the basis for the prerequisite that Cadets conduct their affairs with a military bearing: The standards of discipline required by Academy Regulations must necessarily be high, since offenses which might be condoned in other walks of life cannot be tolerated aboard ships of the Merchant Marine or Navy where sins of omission or commission might cost human lives or millions of dollars worth of property. The Merchant Marine is run entirely by the discipline of the officers, by their standards, so their ships are run, and good discipline among all officers is paramount.

 Wasson v. Trowbridge, Secretary of Commerce, and the United States Merchant Marine Academy, et al., 382 F.2d 807, 809 (2d Cir. 1967).

 Francis A. Crowley ("Crowley" or "the plaintiff") is a midshipman in his fourth and final year at the Academy. On or about September 29, 1997, a fellow classmate -- a female midshipman -- accused Crowley of sexual misconduct. These allegations led the Nassau County Police to arrest Crawley and charge him with the offense of Aggravated Sexual Abuse in the Third Degree (New York Penal Law § 130.66), a class D felony. According to Crowley, the Nassau County District Attorney's Office will shortly present evidence of these charges to a grand jury panel, and an indictment likely will be handed down in the near future.


 Crowley presents the Court with two arguments in support of his motion to stay the Academy hearing pending the outcome of the state criminal prosecution. First, he contends that Section 806 of the Academy's "Administrative Procedures for Operating the Disciplinary System" ("the Rules")(Attached as Ex. B to the Plaintiff's Order to Show Cause) requires that Crowley submit a written response to the charges and contest them in the form of "statement" at the hearing, or else the Board will interpret his silence as an admission of the charges. Section 806 of the Rules provides the following:

806. Disciplinary Statements : A Midshipman may submit a written statement on any report of a violation of the standards of conduct. It is desire that any mitigating or extenuating circumstances, error in the report, or other matters which might be favorable to the reported Midshipman be set forth in the statement. Lack of a statement regarding a conduct report constitutes agreement that the report is correctly stated and that there are no mitigating or extenuating circumstances.
a. Preparation : Statements will be typed only on form KP1-60 (Disciplinary Statement). When needed, extra plain white sheets will be used to provide extra space
b. Contents : Statements will consist of a straight forward account of the facts relating to the offense. Group statements will not be submitted. Statements will not be the medium of counter charges. It should not contain irrelevant or improper material (such as the use of slang or gross comments). If the statement places the blame on another Midshipman, that Midshipman must be named. Any statement submitted that does not adhere to the above will be an additional report offense with the charge "Failure to Comply with General Instructions with Minor Effect" and a recommended award of 10 demerits.

 (The Rules, § 806)(emphasis supplied).

 Relying on Section 806 of the Rules, Crowley argues that to defend himself at the Academy hearing he must make a "statement" or risk having his silence be deemed an admission of guilt. Crowley notes that any "statement" he makes in the Academy hearing may be used against him in the pending state criminal proceeding. The plaintiff asserts that this places him in an untenable "Catch-22" position: he must either make a statement at the Academy hearing, which can be used against him in the criminal prosecution, or refuse to submit a statement at the hearing, and have the Board infer from his silence that he admits the charges. The latter situation, as previously noted, will result in the plaintiff's dismissal from the Academy. According to Crowley, this dilemma constitutes an impermissible infringement of his Fifth Amendment right against self-incrimination. Crowley urges this Court to stay the hearing until the criminal case is resolved so that he can avoid this predicament.

 Crowley's second argument in favor of a stay is that he will not have the full benefit of an Academy advisor if the hearing is held prior to resolution of the criminal prosecution. The parties agree that the Rules permit Crowley to consult with legal counsel prior to the hearing, but that counsel may not attend the hearing itself. Under the Rules, Crowley must select an Academy faculty or staff member to advise and assist him at the hearing. If he does not select an advisor, the Board will designate one for him. (The Rules, § 803[i]). Crowley asserts that since no attorney-client privilege will attach to his communications with the advisor, anything he says could be used against him ...

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