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U.S. v. DOE

United States District Court, S.D. New York

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 collateral orders.


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 expungement application.

  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 U.S.D.C. S.D.N.Y. 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.


Larry Williams
  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) 897-4797
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.


Howard Greenwald Executive Director

© 1992-2004 VersusLaw Inc.

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