United States District Court, S.D. New York
UNITED STATES OF AMERICA, Government,
JOHN DOE,[fn1] Defendant.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
*fn1 Although the defendant has not specifically requested it,
the Court will use a pseudonym in this Order, so that if the
expungement order is ultimately granted, its purpose is not
frustrated by the presence on the public docket of this or other
OPINION AND ORDER
The defendant was convicted in 1971 of mail embezzlement by a
postal employee, 18 U.S.C. § 1709, and sentenced as a youthful
offender under then 18 U.S.C. § 5010. Upon completion of his
sentence, a certificate setting aside his conviction was filed,
pursuant to then 18 U.S.C. § 5021. Now, over thirty years after
his conviction, the defendant has sent a letter to the Court,
offering to demonstrate his exemplary conduct in the interim and
seeking expungement of this ancient record. This request was
apparently directed to the undersigned judge at the suggestion of
the Clerk's office, as the judge assigned to Part I at the time
the defendant obtained copies of the docket sheet from the
Clerk's office and sent his request.
Under the Court's individual assignment system, such an
application should properly be referred to the judge in charge of
the case. As that judge, the Honorable John M. Cannella, is
deceased, however, the matter would ordinarily be assigned by lot
to a new judge, not decided by the Part I judge. However, it
appears to be the practice of the Clerk not to reopen and
reassign closed criminal matters in response to an application
from a pro se defendant, absent an order by the Part I judge. The apparent root of the practice is to weed
out frivolous applications for post-conviction relief.
This application is far from frivolous. Although there is no
statutory authority for the expungement of federal criminal
records, see United States v. McFadzean, 93 Cr. 25 (CSH),
1999 WL 993641 at *2 (S.D.N.Y. Oct. 29, 1999), the Second Circuit
has held that such relief may be granted "within the equitable
discretion of the court," although such relief "usually is
granted only in `extreme circumstances.'" United State 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). Although
such applications are rarely granted, the Court notes that two
reported cases from this District in which expungement was
ordered are quite similar to this one, in that the applicant was
accorded youthful offender treatment for a first offense,
maintained an apparently clean record for a thirty-year period
thereafter, and argued that his record was a hindrance to
employment opportunities in his chosen profession. See United
States v. Doe, 71 Cr. 892 (CBM), 2004 WL 1124687 (S.D.N.Y. May
20, 2004) (Motley, J.); United States v. Doe, 76 Cr. 935 (WCC),
935 F. Supp. 478 (S.D.N.Y. 1996) (Chin, J.). There is thus a
reasonable probability that the applicant will succeed in his
Given these considerations, the application may not be
dismissed out of hand At the same time, it is neither ripe for
decision nor appropriate for resolution by the Part I judge.
First, the matter should not be acted upon until the United
States Attorney has been properly served with the request and has
had an opportunity to take a position on the application.
Moreover, the present petition is extremely thin. While the
defendant has attested briefly to his good conduct since his
conviction, has submitted a letter of reference from his
employer, and has represented that he is hampered with respect to employment opportunities,
none of these materials are submitted in affidavit form, or in
sufficient detail to meet the standard set in Schnitzer. These
deficiencies are understandable, as the application was made pro
se. With the assistance of counsel, a fuller application will no
doubt be forthcoming.
Second, applications of this kind are not listed in Rule 7 of
the Southern District's Local Rules for the Division of Business
Among District Judges among the criminal case responsibilities
assigned to Part I. Several rules, in contrast, emphasize that
all matters arising after indictment within a particular criminal
case should be directed to the judge to whom the case is
assigned, see Rules 1 (criminal proceedings "shall be assigned by
lot to one judge for all purposes"), 8 (criminal cases shall be
assigned upon indictment to one judge for "all purposes
thereafter"), 10(b) (motions shall be directed to the "assigned
judge"), 11(a) (pro se petitions pursuant to 28 U.S.C. § 2255
"shall be submitted . . . to the judge who accepted the plea or
sentenced the defendant"). When a judge assigned to a case has
died, Rule 19 directs the assignment committee of the Court to
reassign his or her matters to other judges "by lot."
While the defendant has presented his application pro se, the
Court notes that at the time of his prosecution and sentencing,
he was represented by the Federal Defender Unit of the Legal Aid
Society. Although the particular attorney assigned to represent
him in 1971, Jack Lipson, is also deceased, and as the defendant
has indicated to the Court that he desires legal representation,
the Court finds it appropriate to reappoint the Legal Aid Society
to represent the defendant in connection with this application.
Robert Baum of the Federal Defender Unit is hereby appointed to
resume the representation of the defendant. The defendant may
contact Mr. Baum at 212-417-8760. The defendant, through his
counsel, may file a new petition for expungement on or before September 30, 2004. A copy of the defendant's letter will be sent
to the United States Attorney's Office, which of course will be
served with any additional papers submitted by defendant or his
counsel, and will have until October 22, 2004, to respond. These
dates are of course subject to revision upon application to the
judge to whom the case is ultimately assigned.
The Clerk is respectfully directed to docket defendant's letter
dated August 25, 2004, to reassign this case by lot to one of the
judges of this Court for all purposes, and to provide a copy of
this Order, and of the defendant's letter application, to the
judge so assigned.
SO ORDERED. Larry Williams
621 Gates Avenue
Brooklyn, NY 11221
August 25, 1004
Re. Case # 71-cr-439
Honorable Judy Lynch
500 Pearl Street
New York, N.Y. 10007
Dear Judge Lynch:
I am writing you to request that my case #71-cr-439 be
expunged. This arrest happened over thirty (30) years ago, when I
was an immature teenager. The document was sealed as per my
understanding. I have been employed at the same job for over 25
years and have worked my way from assistant teacher to the
principal of a private Special Education school for students with
Mental Retardation. My future plans include either joining the
N.Y.C Department of Education or the Clark County School District
in Las Vegas for the 2005-2006 school year. This one blemish on
my record really hurts my chances of continued and/or future
employment. Please help me! I am sure that you are very busy and
I truly appreciate you taking the time to consider my request.
Enclosed are copies of court documents and a letter from my
current employer. THE LIFE-SKILLS SCHOOL, LTD.
97-30 QUEENS BOULEVARD REGO PARK, NEW YORK 11374 Tel: (718)
August 11, 2004
To Whom It May Concern:
Larry Williams has been an employee at our school for the past
25 years. He currently is the principal of the Day School.
At all times, he has shown complete honesty and integrity. I
would vouch for him under any and all circumstances.
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