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. Cf. Sherman, 782 F. Supp. at 870 ("Sherman has not submitted any evidence to support his contention that his conviction has restricted or will restrict his future career advancement").
Third, and most important, defendant was convicted under the Youth Corrections Act, 18 U.S.C. §§ 5005 et seq. (repealed) (the "Act") and his conviction has been set aside. Under the Act, if a person convicted as a youthful offender was unconditionally discharged before the expiration of the maximum sentence imposed, the conviction must have been set aside. The "clear purpose" for setting aside a youthful offender's conviction was "to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction." Mestre Morera v. United States Immigration and Naturalization Serv., 462 F.2d 1030, 1032 (3d Cir. 1972). Without expunction, Judge Weinfeld's decision to set aside defendant's conviction would be rendered essentially meaningless.
Some courts have held that a set-aside under 18 U.S.C. § 5021(b) requires expunction of a conviction. For example, in an exhaustive opinion balancing both the interests of rehabilitated youthful offenders under the Act and the needs of law enforcement agencies in maintaining criminal records, the D.C. Circuit held that expunction of conviction records was proper. Doe v. Webster, 196 U.S. App. D.C. 319, 606 F.2d 1226, 1243-45 (D.C. Cir. 1979); see also United States v. Doe, 496 F. Supp. 650, 652-53 (D.R.I. 1980) (adopting the conclusion from Webster that the Act authorizes expunction of the conviction records). Moreover, the court held that the FBI would have to "respond in the negative to any and all inquiries concerning the set-aside conviction" and that the ex-offender whose conviction has been set aside "may legally reply in the negative to any and all questions concerning his former conviction." Webster, 606 F.2d at 1244. Conversely, other courts, including one in the Southern District of New York, have held that § 5021(b) permits, but does not require, expunction. United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977); United States v. McMains, 540 F.2d 387, 389 (8th Cir.1976); United States v. Hall, 452 F. Supp. 1008, 1012-13 (S.D.N.Y. 1977).
Under all the circumstances of in this case, I need not determine whether the set-aside provision of the Act requires expunction. I find that the combination of factors at issue presents an extreme circumstance warranting expunction of defendant's conviction records in this action. Indeed, if this case does not present "extreme circumstances" it is difficult to imagine one that would.
The issue remains as to what is meant by expunction. One possibility is simply to order that the records be destroyed. That remedy, however, is too drastic in light of the government's legitimate interest in preserving criminal records. The better solution is the one proposed by the D.C. Circuit in Webster. In Webster, the court defined "set aside" as physically removed from central criminal files and placed in a separate storage facility. Thus, the ex-offender need not fear that the records will be accidently released. On the other hand, should the government commence a bona fide criminal investigation concerning the ex-offender, which could be aided by reference to the youthful offender conviction, it could obtain the file. This solution is simply the most equitable under the circumstances.
For the foregoing reasons, defendant's motion to expunge his criminal record in the above-captioned matter is granted. It is hereby ORDERED that the conviction records in the above-captioned action shall be placed in a separate storage facility. It is further ORDERED that these records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. These records may not be used by the government or any of its agents for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose. Finally, it is further ORDERED that in the event the government receives any inquiries about defendant's conviction record, it shall not respond in the affirmative on the basis of the set-aside conviction.
Dated: New York, New York
August 29, 1996
United States District Judge