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United States v. Robinson

July 18, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TALITA ROBINSON, DEFENDANT.



The opinion of the court was delivered by: Pohorelsky, Magistrate Judge

OPINION AND ORDER

Defendant Talita Robinson ("Robinson") seeks an order to seal or expunge her criminal arrest and conviction record. As set forth below, Robinson has not established a basis for expungement, and the motion is therefore denied.

BACKGROUND*fn1

On September 28, 2004, Robinson pleaded guilty to one misdemeanor count for the theft of government funds, a violation of 18 U.S.C. § 641, in connection with submitting false income statements for three years and eight months to the New York City Housing Authority ("NYCHA"). For this crime, Robinson was sentenced to thirty-nine months probation and ordered to make restitution to NYCHA for the housing subsidies she unlawfully received. In January 2007, Robinson made full payment on the restitution amount, and to the best of the court's knowledge has thus far complied with the terms of her probation which is scheduled to end in April 2008.

Robinson has no prior arrest or conviction record. Her background, however, is marked by personal and financial adversity. She was raised by her grandmother who was dependent on public assistance. Robinson's father never established a stable relationship with her, while her mother was a drug addict who died of tuberculosis when Robinson was fourteen years old. As an adult, Robinson lived in shelters for women and children and cared for her first child without the father's support. In the face of these challenges, Robinson earned a Master's degree in education and, since 1995, she has worked as a teacher in New York and New Jersey. Since her conviction, Robinson has continued to develop her career in special education and support her two children.

Days after making full restitution, Robinson filed a pro se motion asking the court to seal or expunge her arrest and conviction record. Upon notice from the court, Robinson's attorney subsequently provided additional support for the motion. Robinson seeks the expungement in order to regain her teaching certificate, which the state of New Jersey revoked in reliance on Robinson's criminal record. Without the certificate, Robinson is unable to teach and is therefore without means to support herself or her two children. The government has opposed the motion.

DISCUSSION

I. Legal Standard

28 U.S.C. § 534 requires the Attorney General of the United States "to acquire, collect, classify and preserve" criminal records. 28 U.S.C. § 534(a) (2007). A related regulation, 28 C.F.R. § 20.33, authorizes the Department of Justice to disseminate criminal history records "for criminal justice purposes" and "for use in connection with licensing or employment." 28 C.F.R. § 20.33 (2007). This regime of maintaining and exchanging criminal identification records serves "not only the immediate needs of law enforcement for identification and reference in future criminal proceedings, but also punishment and deterrence, as well as public information needs, as appropriate." United States v. Morelli, No. 91-CRIM-639(MHD), 1999 WL 459784, at *1 (S.D.N.Y. June 30, 1999).

Given the governmental and public interest in an accurate criminal identification system, the Second Circuit has recognized that while courts possess the inherent equitable authority to expunge criminal records, they are to exercise this authority only under "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)); United States v. McFadzean, No. 93-CR-25-CSH, 1999 WL 993641, at *2 (S.D.N.Y. Nov. 2, 1999). In articulating this standard, the Second Circuit in Schnitzer identified the following instances of extreme circumstances under which expungement was warranted: (1) where mass arrests made probable cause impossible to determine; (2) where arrests were made strictly to harass civil rights workers; (3) where an arrest and conviction were supported by a statute later declared unconstitutional; and (4) where the government misused criminal records. Schnitzer, 567 F.2d at 540 (citations omitted); United States v. Hasan, No. 98-CR-786(ILG), 2002 WL 31946712, at *1 (S.D.N.Y. Dec. 4, 2002). The common theme running through these examples is that expungement is justified when arrests or convictions are subsequently found to be meritless, never adjudicated, or invalid due to improper government action. Morelli, 1999 WL 459784, at *5.

Courts have furthermore been clear that the consequences attendant to possessing a criminal record, such as loss of financial or employment opportunities, do "not fall within the narrow bounds [...] where expungement has been declared appropriate." Schnitzer, 567 F.2d at 540; see also United States v. Sherman, 782 F. Supp. 866, 870 (S.D.N.Y. 1991) ("While the court recognizes that having a criminal record affects the path that Sherman's life will take, it disagrees with his contention that this should not be the case."); United States v. Fields, 955 F. Supp. 284, 285 (S.D.N.Y. 1997) ("[T]he difficulties faced by Fields in finding and keeping a steady job do not rise to the level of 'extreme circumstances' required before a court will exercise its inherent power to expunge."); Morelli, 1999 WL 459784, at *2-3 (facing significant medical expenses for his child and limits on his employment options, Morelli's "situation [...] does not come remotely close to demonstrating the 'extreme circumstances' that would justify the relief he seeks."). Thus, while courts do consider the "harm that the maintenance of arrest records can cause citizens" Schnitzer, 567 F.2d at 539, they reserve expungement primarily for the rare and extreme circumstance when an arrest or conviction is invalidated by government error or misconduct and the defendant's innocence is presumed. See Schnitzer, 567 F.2d at 540; Morelli, 1999 WL 459784, at *1; In re Kerwin Farkas, 783 F. Supp. 102, 103 (E.D.N.Y. 1992).

II. Application

Applying these principles, the court concludes that expungement is not warranted in this case. To support her motion for expungement, Robinson argues, first, that the loss of her teaching certificate due to her criminal record threatens her ability to provide for herself and her children, and second, that the government interest in maintaining her record is weak.

As to her first argument, the court acknowledges the financial hardships Robinson has overcome and commends her personal and professional successes; nonetheless, consistent with the law of this circuit, the consequences she faces as a result of her conviction record do not provide a basis for expungement. Robinson stresses that she confronts actual, not speculative, economic harm from the retention of her criminal record and points to cases, specifically, United States v. Doe, 935 F. Supp. 478 (S.D.N.Y. 1996) and United States v. Van Wagner, 746 F. Supp. 619 (E.D. Va. 1990), where other defendants established actual threat to their employment or financial independence and were granted expungement. To be sure, the Doe and Van Wagner courts did consider actual economic harm as an important factor in reaching their respective conclusions to grant expungement. Doe, 935 F. Supp. at 481; Van Wagner, 746 F. Supp. at 622. Consideration of a criminal record's adverse effects, however, was only one aspect of those courts' expungement analyses, and by no means the most significant. Rather, what ultimately tipped the ...


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