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UNITED STATES v. DOE

August 29, 1996

UNITED STATES OF AMERICA, against JOHN DOE, Defendant.


The opinion of the court was delivered by: CHIN

 Part I

 CHIN, D.J.

 Defendant John Doe *fn1" seeks an order sealing and expunging his criminal record in the above-captioned matter. The government opposes this application. Because I find that defendant has demonstrated "extreme circumstances" warranting expunction, his motion is granted.

 BACKGROUND

 On November 12, 1976, Judge Weinfeld sentenced defendant to a term of imprisonment of two years on each indictment, with the terms to run concurrently. Execution of all but four months of the sentence, however, was suspended. Judge Weinfeld also imposed two years of probation. Importantly, Judge Weinfeld provided that defendant was sentenced as a youthful offender "so as to make provisions of § 5021(b) of Title 18, United States Code, applicable to him."

 On August 19, 1978, Judge Weinfeld discharged defendant from probation before the maximum period of probation had expired. Accordingly, he ordered that "the judgment of conviction entered by this Court on November 12, 1976 . . . has been set aside pursuant to the provisions of Section 5021(b), Title 18, U.S. Code."

 Defendant evidently learned a lesson from his youthful indiscretions. Throughout the 1980s, defendant educated himself in computer programming, eventually obtaining employment at a software company. There, he wrote computer applications for major companies such as Estee Lauder, Entemann's and AT&T. In 1993, defendant started his own computer consulting business.

 In 1995, defendant obtained a position as a Computer Programmer/Systems Analyst for Chemical Bank. In connection with this position, Chemical Bank obtained defendant's fingerprints and conducted a background check. In March 1996, the background check uncovered defendant's 1976 conviction. Although defendant was at first told not to return to work, Chemical Bank later allowed defendant to complete his current employment contract, which will expire in September 1996. Nevertheless, defendant will likely not be given another employment contract with Chemical Bank because of his prior conviction. Thus, he fears that his 20 year-old conviction will prevent him from obtaining other job opportunities. This motion followed.

 DISCUSSION

 Pursuant to 28 U.S.C. § 534(a)(1), the Attorney General of the United States is required to acquire, retain, and disseminate criminal records. Nevertheless, courts may order the expunction of criminal records through the exercise of their inherent equitable power. See, e.g., United States v. Rabadi, 889 F. Supp. 757, 759 (S.D.N.Y. 1995). This power to expunge arrest and conviction records "lies within the equitable discretion of the court. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977), cert. denied, 435 U.S. 907, 55 L. Ed. 2d 499, 98 S. Ct. 1456 (1978). But see United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993) ("federal courts are without jurisdiction to order an Executive Branch agency to expunge what are admittedly accurate records of a person's indictment and conviction"). In exercising their discretion, courts must balance "'the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties.'" Schnitzer, 567 F.2d at 539 (quoting United States v. Rosen, 343 F. Supp. 804, 806 (S.D.N.Y. 1972)).

 This standard is extremely stringent. Courts have recognized that their equitable power to expunge is a narrow one, which should be exercised only in "extreme circumstances." See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991); United States v. Noonan, 906 F.2d 952, 957 (3d Cir. 1990); Schnitzer, 567 F.2d at 539-40. Indeed, "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." United States v. Sherman, 782 F. Supp. 866, 868 (S.D.N.Y. 1991).

 Despite this rigorous standard, defendant has demonstrated that this case presents extreme circumstances that, in combination, warrant expunction. First, defendant's conviction occurred twenty years ago. Since that time, he has not had any incidents with the law and has been gainfully employed as a computer programmer. Second, unlike similar cases where courts have refused to expunge records of conviction, defendant has demonstrated that this ancient conviction has had an actual impact on his employment status. Defendant was initially suspended from work and only was allowed to return based on his excellent work record. Nevertheless, this incident constitutes evidence that he may not be able to continue finding employment. ...


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