The opinion of the court was delivered by: Tenney, District Judge.
Defendant Richard L. Sherman has moved to have his record of
conviction and all records relating to that conviction expunged.
For the reasons set forth below, the motion is denied.
In February 1979, Sherman pleaded guilty to one felony count of
medicaid fraud and one felony count of income tax evasion. In May
1979, the court sentenced Sherman to a term of imprisonment of
two years for each count, with the terms to run concurrently.
However, execution of sentence was suspended and Sherman was
placed on probation for a period of three years, with the special
condition that he perform community service. Judgment and
Probation/Commitment Order of May 1, 1979, Judge Charles H.
As a result of his guilty plea, Sherman's license to practice
chiropractic medicine in the state of New York was suspended for
three years. In addition, Sherman was put on probation for a
period of two years in the state of Florida, where he currently
resides. Affidavit of Richard L. Sherman (sworn to July 2, 1991)
("Aff. I") at 1.
Sherman's return to the field of chiropracty has apparently
been quite successful. Sherman states that he has held virtually
every office in the Broward County Chiropractic Society, which
according to him is the nation's largest local chiropractic
society for any individual state, and was elected President in
1985 and 1991. Aff. I at 2. In 1986, Sherman was selected as
"Chiropractor of the Year" by his Florida peers. Aff. I at 2. In
addition, Sherman states that he has been chairman of the "Ethics
Committee" for the past six years, although he does not specify
to what organization this ethics committee belongs. Aff. I at 2.
Sherman argues that his criminal records should be expunged
because the records will inhibit his admittance to various
professional organizations. Aff. I at 3. In support of his
argument, Sherman cites several applications to institutes and
professional groups which inquire as to whether the applicant has
ever been convicted of a crime or suspended from practice. Aff. I
at 3; Aff. I, Ex. B; Affidavit of Richard L. Sherman (sworn to
August 15, 1991) ("Aff. II"), Exs. unmarked. However, Sherman has
not actually been refused membership in any professional
organization because of his criminal records, and he has not
completed any applications which would require him to disclose
his criminal record. Aff. I at 3. Sherman also argues that
because he sometimes testifies in multiple personal injury and
workman's compensation cases, he "live[s] in fear that [his]
record of conviction will be divulged in court and discredit
[his] reputation with the attorneys, judges and juries." Aff. I
In addition, Sherman asserts that he has been asked to consider
running for a state political office, but was forced to abstain
for fear that adverse publicity would be generated if his
criminal record were disclosed. Aff. I at 3. In sum, Sherman
requests an expunction because he has been "economically and
emotionally deprived of leading a normal life with this prior
offense remaining of record." Aff. I at 4.
Because the retention of criminal records is essential for an
effective criminal identification system, the courts that have
recognized the inherent judicial power to expunge criminal
records*fn1 have exercised that power only in "extreme
circumstances." See, e.g., United States v. Sweeney,
914 F.2d 1260, 1264 (9th Cir. 1990); United States v. Noonan,
906 F.2d 952, 956 (3d Cir. 1990); United States v. Friesen,
853 F.2d 816, 817-18 (10th Cir. 1988); Allen v. Webster, 742 F.2d 153,
155 (4th Cir. 1984); United States v. Schnitzer, 567 F.2d 536,
539 (2d Cir. 1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456,
55 L.Ed.2d 499 (1978). Congress recognized the "compelling public
need" to retain criminal records when it authorized the
Department of Justice to acquire and preserve criminal records
and to exchange those records with federal, state, and local law
enforcement authorities. Schnitzer, 567 F.2d at 539; see
28 U.S.C. § 534(a). In so doing, Congress mandated "a central
location for information to make identification of persons
responsible for crimes, the deceased, and missing persons."
Sweeney, 914 F.2d at 1264.
In the face of the public's compelling need to have an accurate
criminal identification system, courts have rarely granted
motions to expunge arrest records, let alone conviction records.
This is true even where the arrests at issue resulted in
acquittals or even dismissal of the charges. In Schnitzer, the
Second Circuit explained that the power to expunge'" is a narrow
one, and should not be routinely used whenever a criminal
prosecution ends in an acquittal, but should be reserved for the
unusual or extreme case.'" Schnitzer, 567 F.2d at 539 (quoting
United States v. Linn, 513 F.2d 925, 927 (10th Cir.), cert.
denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975)). Such
extreme circumstances have been found and records ordered to be
expunged where procedures of mass arrests rendered judicial
determination of probable cause impossible, where the court
determined the sole purpose of the arrests was to harass civil
rights workers, where the police misused the police records to
the detriment of the defendant, and where the arrest was proper
but was based on a statute later declared unconstitutional. Id.
at 540 (citations omitted).
Thus, the Second Circuit in Schnitzer refused to order a
defendant's arrest record expunged even though the indictment
charging the defendant with defrauding a federal agency was
ultimately dismissed. The court emphasized that Schnitzer's
arrest, subsequent indictment, and the law under which he was
indicted were all valid, and that the dismissal of the charges
did not necessarily establish his innocence. The court further
noted that there had been no allegation that the Government had
misused, or would misuse, the defendant's criminal record. The
court recognized that retention of his arrest record would create
a "poignant problem" for the defendant "because of his status as
a rabbinical student," and because he could "be asked to explain
the circumstances surrounding his arrest." Id. at 540. Yet, the
court refused to order the relief sought because Schnitzer's
situation was not "harsh or unique," since "[s]uch an explanation
may be expected from those about to enter a profession, such as a
religious or legal profession." Id.
Sherman argues that even if no exceptional circumstances are
present in this case, the court should use its equitable powers
to grant his motion, as the court of appeals did in Chastain v.
Kelley, 510 F.2d 1232 (D.C.Cir. 1975). The records at issue in
Chastain, however, pertained to a cancelled suspension and
proposed dismissal of an FBI agent rather than to a felony
conviction of a criminal defendant. Furthermore, the court stated
only that a right not to be adversely affected by such
information in the future "may exist if the information (1) is
inaccurate, (2) was acquired by fatally flawed procedure, or (3)
. . . is prejudicial without serving any proper purpose of the
Bureau's." Id. at 1236 (emphasis added). Here, however, Sherman
has not argued that the records pertaining to his conviction are
inaccurate or were acquired by flawed procedures. Furthermore,
although Sherman's conviction records are certainly prejudicial,
the court cannot conclude that they do not serve any proper
Sherman also relies on Menard v. Saxbe, 498 F.2d 1017
(D.C.Cir. 1974), and Diamond v. United States, 649 F.2d 496
(7th Cir. 1981), even though these cases concerned circumstances
markedly different from those presented by the instant motion.
Menard involved the expunction of an arrest record held by the
FBI after the bureau was informed that the police encounter was
not an arrest but a mere detention. Diamond, while advocating a
case by case approach to motions to expunge criminal records, did
so in the context of a request to expunge the record of an
indictment that was dismissed sua sponte by the government. The
court in Diamond took pains to distinguish that ...