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UNITED STATES v. HALL

July 11, 1977

UNITED STATES OF AMERICA
v.
GARY T. HALL, Defendant



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 CONSTANCE BAKER MOTLEY, D.J.

 On July 14, 1972 Gary Hall pleaded guilty to an information charging him with violating 18 U.S.C. §§ 32 and 35 by making threatening telephone calls to Pan American World Airways in which he stated that a bomb would explode aboard its aircraft. On August 14, 1972 Hall was sentenced by this court under the Youth Corrections Act, 18 U.S.C. § 5010(a), as extended by § 4209. Hall was placed on probation for two years subject to the condition that he (1) seek psychiatric help; (2) complete his college education; and (3) find gainful employment.

 Hall immediately absconded from probation supervision. About two years later, Hall turned himself in to the probation department when he realized he might be apprehended on a bad check charge. Although Hall had not reported as required, and aside from the bad check charge which was dropped, Hall had on his own made a reasonably satisfactory adjustment. He had settled in a small upstate New York community and had opened a small business. Hall's probation, therefore, was extended an additional year which he successfully completed. He was finally discharged from probation on December 8, 1975. Since the defendant was discharged prior to the maximum period of probation, his conviction was "set aside" pursuant to 18 U.S.C. § 5021(b). (Section 5021 is fully set forth in the margin.) *fn1"

 On February 4, 1976 Hall wrote to the Federal Bureau of Investigation and requested that his arrest and fingerprint records be "expunged" from its files. *fn2" The F.B.I. answered that fingerprint records are official Government records which cannot be destroyed except by court order. It added that its records (accurately) noted that the disposition of Hall's arrest in 1972 is "conviction set aside."

 Hall now moves this court to order that the F.B.I. records relating to the arrest and its subsequent history be expunged. Hall does not ask, contrary to his original letter to the F.B.I., that his fingerprint records be expunged. Rather, he only seeks to prevent the dissemination of his arrest record to "thousands of federal, state and local agencies and private businesses for employment, licensing or prosecutorial purposes through the extensive F.B.I. Identification Division and NCIC systems." (Def's Reply Brief, at 8.) The defendant is concerned because aside from the ever-present possibility that his record will be indiscriminately disseminated, there is the fact that the mere existence of a criminal record looms ominously through one's life.

 The court is asked to decide two discrete questions: First, is 18 U.S.C. § 5021 an "expunction statute"? In other words, if a defendant's conviction is duly "set aside" pursuant to that section, does that section implicitly authorize the court to order the F.B.I. to erase all evidence of the proceedings from its files? Second, if such "expunction" is not so authorized, does the district judge have the inherent power to order such expunction in an appropriate case in order to further the purpose of the Act? If so, is such equitable relief appropriate in this case?

 DISCUSSION

 Background

 There can be no doubt about Congress' intent in enacting the Youth Corrections Act and especially Section 5021. As confirmed by the legislative history (H.R. Rep. No. 2979, 81st Cong., 2d Sess., 1950 U.S. Code Cong. Serv. 3983), the cases are unanimous that its goal is the rehabilitation of the young persons in this country who have made their first mistake, so to speak. The purpose of Section 5021's "setting aside" provision is to give these eligible defendants a "second chance, free of all taint of a conviction." Mestre Morera v. United States Immigration and Naturalization Service, 462 F.2d 1030, 1032, (1st Cir. 1972) (emphasis in original). See generally Dorszynski v. United States, 418 U.S. 424, 432-34, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974).

 Given the undisputed fact that the Act is a statute clearly aimed at the rehabilitation of young offenders, it is but a small step to argue that Section 5021 is an expunction statute. The evils of a criminal record are well known. The convicted are forever branded as untrustworthy members of society. Their job prospects are permanently compromised; they are often the subject of suspicion and mistrust. The District of Columbia Circuit alluded to this grave problem when it said that "a person sentenced under the Youth Corrections Act can, by virtue of his own good conduct, be spared the lifelong burden of a criminal record." Tatum v. United States, 114 U.S. App. D.C. 49, 310 F.2d 854, 856 (1962). That Circuit further elucidated the evils attached to a criminal record in a later opinion, Menard v. Mitchell, 139 U.S. App. D.C. 113, 430 F.2d 486, 490-91 (1970):

 
Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender. (Footnotes omitted and emphasis added).

 The hardships attendant on a criminal record have been recognized by the courts and the commentators alike. See, e.g., Utz v. Cullinane, 172 U.S. App. D.C. 67, 520 F.2d 467, 479-80 (1975); A. R. Gough, "The Expungement of Adjudication Records of Juveniles and Adult Offenders: A Problem of Status," 1966 Wash. U. Law. Q. 147, 153-59.

 Hall, of course, argues that an F.B.I. notation which reads "conviction set aside" is ineffectual in giving him that "second chance, free of all taint of conviction." This court agrees. Such a record would likely inspire little more confidence than if it stated "convicted". Only the most sophisticated and the most sympathetic members of today's society can be expected to view such a fact without reservation. To the uninitiated, such a notation may even appear to mean that the defendant was not found guilty. ...


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