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U.S. v. DOE

United States District Court, S.D. New York

May 19, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

Defendant John Doe, *fn1 who pled guilty before this Court in 1971 to a violation of 18 U.S.C. § 656, moves for an order expunging and sealing all records relating to his arrest and conviction. The Government has taken no position on the merits of the motion. For the reasons that follow, defendant's motion is granted.


  In April 1971, at the age of 20, defendant was charged with embezzling $730 from a bank at which he was a teller. On August 23, 1971, he pled guilty before this Court to a violation of 18 U.S.C. § 656. On October 8, 1971, the Court adjudicated him a Youth Offender pursuant to the Youth Corrections Act (18 U.S.C. § 5005, et seq. (repealed 1984)). The Court gave him a suspended sentence, and placed him on probation for 18 months.

  On February 9, 1973, this Court, in an exercise of its discretion, unconditionally discharged defendant from probation, three months before the expiration of his maximum probation period, and, as was automatically required in such circumstances, set aside the judgment of conviction, pursuant to 18 U.S.C. § 5021(b).*fn2 Defendant is currently 53 years old, and has no criminal record other than that discussed herein. He describes his current occupation as "investment and insurance advisor." He holds Series 7, 63 and 65 licenses issued by the National Association of Securities Dealers ("NASD"), and since October, 2003, has worked as an independent broker affiliated with H.D. Vest, a subsidiary of Wells Fargo & Company.

  Defendant seeks an order directing the Government to remove all records relating to his arrest and conviction from its central criminal files and place them in a separate storage facility, at which they would be available for review only in the course of a bona fide criminal investigation involving him.

  Defendant gives as the reason for his motion his belief "that a stigma that attaches to me as a result of the ability of current and/or potential clients to learn of the fact that I was arrested and charged with embezzlement in 1971, nearly a third of a century ago, will impinge upon my ability earn [sic] a living in my chosen field of endeavor." He addresses some of the specific ways in which his record impacts his work in the following paragraphs of his affidavit:

In the course of my work, I am often required to submit applications to insurance companies so that I can be appointed as a broker for their products. I must also make periodic filings with the NASD as well as the federal Securities and Exchange Commission, state insurance departments and their administrators. In the course of my efforts to act as a broker to companies already represented by H.D. Vest and as an advisor to clients that I am attempting to bring to H.D. Vest for my account, I must submit applications for selling agreements.
In all of the contexts set forth in the preceding paragraph, I am legally obligated to make full disclosure of all relevant facts concerning my background and qualifications. Accordingly, I have no choice but to disclose the fact that I was arrested in April 1971 and charged with embezzlement of bank funds by the federal government. This almost always means that I must also disclose all of the related official documentation and explain the 1971 arrest, information, indictment, Youth Offender conviction, probation, vacation of conviction and my subsequent employment history.
  Defendant's attorney states in his affidavit that, as an independent broker, defendant has to file applications to state insurance departments and applications for selling agreements with the insurance companies that H.D. Vest represents "at least once per month, and sometimes more often," and that, with regard to the latter, defendant "has already had to elect to forego requesting one such appointment since it would have otherwise required disclosure of his 1971 arrest, conviction, sentence of probation, and subsequent setting aside of the conviction." In addition, when defendant became eligible for his Series 7, 63 and 65 licenses, he was required to submit to NASD a Form U-4, which plaintiff describes as "a document used by broker/dealers to register associated persons with self-regulatory organizations, states, and the federal government." The information reported on this form is available, free of charge, on NASD's website. Thus, members of the public, including colleagues, actual or potential clients, and competitors, can easily discover defendant's charge detail ("I charge of embezzling and misapplying funds, a felony, 1 plead not guilty"), and his disposition details ("The defendant was sentenced as a youth offender. Imposition of sentence suspended. Defendant placed on probation on 10-8-71 for 18 months. Discharged from probation on 2-13-73."), as well as the case number and the name of the court. They can also read the following summary: "Charged with embezzling and misapplying $730.00 on 3/7/71 at East Savings Bank, New York. The missing funds were identified and returned. Charges subsequently dismissed." With regard to this source of information, defendant states that "[i]n an extremely competitive environment, I know that clients utilize this resource to check the qualifications and background of those who propose to represent or advise them in financial matters. I also know that competitors have access to this information too, and that they can and will use any negative information about me to gain an edge as we vie for institutional clients." Defendant also claims that any discussions that occur in response to questions from clients in relation to this information "are, and will continue to be, a source of great personal embarrassment; moreover, the nature of the charge obviously raises questions in a current or potential client's mind as to my suitability to act as a broker/advisor in either the investment or insurance fields."


  Pursuant to 28 U.S.C. § 534(a)(1), the Attorney General of the United States is required to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records." No statutory authority exists for the expunction of federal criminal records. United States v. McFadzean, 1999 WL 993641 at *2 (S.D.N.Y. 1999). The Second Circuit has held that expunction of an arrest record "lies within the equitable discretion of the court," but that such relief "usually is granted only in `extreme circumstances.'" United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (quoting United States v. Rosen, 343 F. Supp. 804, 807 (S.D.N.Y. 1972)). To determine whether expunction is appropriate, "[t]he government's need to maintain arrest records must be balanced against the harm that the maintenance of arrest records can cause citizens. " Id. (noting that "an arrest record alone can create serious adverse consequences for those who have been arrested in the past, notwithstanding the ultimate disposition of the case."). The power to expunge is a narrow one, and even when a defendant is acquitted, it "should not be routinely used . . . but should be reserved for the unusual or extreme case." Id. (internal quotation omitted).

  While the expunction standard is strict, several factors weigh in defendant's favor. First, defendant was adjudicated a Youth Offender pursuant to the Youth Corrections Act. Judge Chin's decision to grant an expunction motion in United States v. Doe. 935 F. Supp. 478 (S.D.N.Y. 1996) has been distinguished from the much larger number of cases in this district that have denied such motions on the ground that Doe dealt with the Youth Corrections Act. See United Stales v. Morelli. 1999 WL 459784 at *1 n. 1 (S.D.N.Y. 1999); United States v. Seibel, 1999 WL 681276 at *2 n.2 (S.D.N.Y. 1999) (Chin, J.) (stating that Doe was "based in large part upon the Youth Corrections Act, 18 U.S.C. § 5021(b)"). As this Court has stated in relation to the Youth Corrections Act, "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." United States v. Hall, 452 F. Supp. 1008, 1010 (S.D.N.Y. 1977). In Hall, we "fe[lt] constrained to hold that, despite the acknowledged fact that expunction would further the purposes of the Act," Section 5021 could not, "without more explicit guidance from Congress," be interpreted as requiring expunction of records relating to a conviction that is "set aside" pursuant to the Act. Id. at 1012. We noted, however, that while not appropriate on the facts of the case, the basic power to expunge was "clearly established." Id. at 1013.

  Second, this Court exercised its discretion to grant defendant an unconditional discharge from probation prior to the expiration of the maximum period, concluding that this would be "compatible with the welfare of society," and thus triggered the automatic "setting aside" of defendant's conviction, pursuant to the Youth Corrections Act. "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.'" Doe, 935 F. Supp. at 481 (quoting Morera v. U.S. Immigration & Naturalization Service, 462 F.2d 1030, 1032 (3d Cir. 1972)) (adding that "[w]ithout expunction," the sentencing judge's decision to set aside the defendant's conviction, "would be rendered essentially meaningless.").

  Third, the act in question is distant in time and nature from defendant's present life. At the time that he first appeared before this Court, defendant was only 20 years old. He is now 53 years old, with a wife and child, and has had no further contact with the criminal justice system. He has been gainfully employed, and has, as he states, "worked hard both to make something of (himself) and to provide for [his] family."

  Finally, defendant has provided sufficient indication of the harm he is exposed to so long as the records in question remain generally accessible. The Second Circuit has declared that "courts need not wait for substantial damage to occur before taking remedial equitable action." Schnitzer, 567 F.2d at 540; see id. at 539 (noting that "an arrest record alone can create serious adverse consequences for those who have been arrested in the past, notwithstanding the ultimate disposition of the case."); Hall, 452 F. Supp. at 1010 (noting as the explanation for defendant's concern regarding his criminal record that "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 information submitted to the Court regarding the adverse impact that the availability of these records has already had on defendant's pursuit of his current career, and the reasons underlying defendant's claim of future dangers satisfy us that defendant is not, to use his language, "wast[ing] the Court's valuable time with this application."

  Turning, as we must, to the countervailing interests, we note that the Government has taken no position on the merits of the motion. In lieu of substantive response, the Government submitted to the Court a copy of Judge Chin's opinion in Doe, as well as what the Government described as "a copy of the defendant's criminal history record." The Government subsequently acknowledged that it submitted the New York criminal history of someone whose name is somewhat similar to that of defendant, but whose information "should not have been sent to the Court., " since it "has no relevance at all to the defendant's case."

  Thus persuaded by our weighing of the relevant factors that defendant's is the kind of "unusual" case in which expunction is warranted, Schnitzer, 567 F.2d at 539, we turn to the question of relief. Defendant proposes that this Court issue an order an analogous to that issued by Judge Chin in Doe, such as would strike "a fair balance between the government's need, under appropriately limited circumstances, to have access to records relating to my arrest and my legitimate need to be free of the deleterious effects of a shadow that reaches across time and will, in all likelihood, limit my ability earn [sic] a living in the endeavor I have chosen." We are persuaded that, as in Doe, relief of this kind is "the most equitable under the circumstances." Doe, 935 F. Supp. at 481.


  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 arrest and 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.


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