Opinion
22-MC-3670 (NRM)
2023-05-01
M.D., Petitioner, v. UNITED STATES of America, Respondent.
M.D., Elmont, NY, Pro Se. James R. Simmons, United States Department of Justice United States Attorney's Office, Brooklyn, NY, for Respondent.
M.D., Elmont, NY, Pro Se. James R. Simmons, United States Department of Justice United States Attorney's Office, Brooklyn, NY, for Respondent. MEMORANDUM & ORDER NINA R. MORRISON, United States District Judge:
Pending before the Court is Petitioner M.D.'s motion to expunge her criminal record. The Court has considered Petitioner's pro se motion, the Government's response, and oral argument made by the parties during the Court's March 7, 2023 conference. For the reasons outlined herein, Petitioner's motion is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 1993, M.D. ("Petitioner"), while on a trip from Colombia to visit her then-boyfriend, was arrested and, along with four co-defendants, charged with one count of conspiracy to distribute cocaine. ECF No. 1 at 7; ECF No. 9 at 4; see generally United States v. Ambra et al., 93-mj-225-JXA-5 (E.D.N.Y) (hereinafter "Dkt. No. 93-mj-225-5"). Petitioner was ordered detained by then-Magistrate Judge Joan Azrack of the Eastern District of New York on February 4, 1993. See Dkt. No. 93-mj-225-5, Order dated February 4, 1993. Approximately one month later, the Government moved to dismiss the sole charge it had filed against Petitioner, although the docket is silent as to the reason(s) why. The Court granted the motion to dismiss on March 2, 1993. See Dkt. No. 93-mj-225-5, Order date March 2, 1993. Petitioner has no prior or subsequent criminal history. See ECF No. 9 at 27, 38.
On December 20, 2022, Petitioner filed the present pro se motion to expunge the record of her nearly thirty-year-old arrest. ECF No. 1 at 1. Petitioner explained that although her 1993 criminal case was dismissed in its entirety, she has been informed by prospective employers over the years that, after conducting routine background checks prior to hiring her, they learned that Petitioner had a "pending" criminal narcotics case in federal court dating to 1993. Id. at 3, 6-7. In an October 3, 2017 letter, for example, the New York Office of School Personnel Review and Accountability ("OSPRA") informed Petitioner, who had applied for a job in a school, that her "criminal history record reveal[ed] one or more open/pending criminal charges" and that her "eligibility for clearance for employment can[not] be completed" until her 1993 case is resolved. Id. at 6. Similarly, the Freeport Public School District in New York, who had offered Petitioner a job as an account clerk, informed Petitioner that it could not clear her for work in light of her "pending" criminal case. Id. at 3, 9.
On December 28, 2022, this Court ordered Respondent United States of America ("the Government") to show cause as to why Petitioner's motion to expunge should not be granted. See ECF No. 2. On February 5, 2023, the Government responded to the Court's order, explaining that while it would be happy to write a letter informing Petitioner's potential employer that the information it received about Petitioner's criminal background was inaccurate, it opposed Petitioner's motion to expunge. ECF No. 4 at 1, 3. The Court directed the parties to confer as to whether the Government's offer to correct the inaccuracy in Petitioner's record by letter would settle the action. ECF No. 6.
During oral argument held on March 7, 2022, Petitioner explained to the court the circumstances of her 1993 arrest and some of the ways in which her inaccurate criminal record has impacted her and may continue to do so. First, in both her motion and at oral argument, Petitioner emphasized that she has suffered from adverse employment outcomes due to her criminal record. Specifically, Petitioner, who has a bachelor's degree in accounting and has decades of experience working as an accountant, has missed out on at least two positions—possibly more, although she does not know for sure—after her prospective employers received incorrect information about her record. Since the beginning of the COVID-19 pandemic, Petitioner has remained unemployed. ECF No. 9 at 18. Although she was offered a job nearly two years into the pandemic, she lost that time-sensitive job offer after her prospective employer informed her that it could not clear her for work in light of the information it had obtained about her allegedly "pending" criminal case in a final background check after making her the initial job offer. Id. at 10-11.
Petitioner also asserted at oral argument that her criminal record has affected her ability to travel and visit her family abroad. In 2003—ten years after the Government dropped its federal narcotics charges against her—Petitioner, while returning from a trip with her three-month-old daughter to visit her family in Colombia, was sequestered by airport officials for intensive screening. Id. at 12-13. During this screening, federal employees searched through Petitioner's luggage, including her infant daughter's diapers, for what felt to Petitioner "like eternity" as her daughter cried. Id. While Petitioner informed the Court that she did not know whether this special screening had to do with incorrect criminal record, she stated that she suspected that "they knew" that she "had [a] record" and "that's why they pulled [her] out." Id. at 12. Petitioner, who described the twenty-year old experience as "traumatizing," informed the Court that she has never once visited her family in Colombia since that time. Id. at 15. Whether or not the airport search and detention Petitioner experienced in 2003 was in fact due to any misinformation airport officials may have received about her 1993 charges, it is clear that Petitioner believes this may have been the case, and it has left her fearful of traveling outside the United States.
In light of these difficulties, Petitioner has urged the Court to expunge her criminal record, especially because she has "never had another trouble [sic] with the justice department" and has "tried to live and [sic] honest life with integrity, truthfulness and respect for people, institutions and the government of the United States." ECF No. 1 at 3.
At oral argument, the Government acknowledged that Petitioner has lived an "exemplary" life. ECF No. 9 at 32. The Government also conceded that at least some of the state agencies that conducted Petitioner's background checks "seemed to be relying on inaccurate information." Id. at 25. But the Government nonetheless opposed Petitioner's motion because it wished to maintain "an accurate historical account" of the 1993 case against her. Id. at 31-32. The Government further informed the Court that it had reached out to the Federal Bureau of Investigations ("FBI"), an internal investigator at the United States Attorney's Office, and certain state agencies, including those two state agencies that conducted background checks on behalf of Petitioner's prospective employers in 2017 and 2022, and each agency assured the Government that Petitioner's record accurately reflected the fact that her 1993 case was closed. Id. at 25-27. Counsel for the Government also indicated that these two state agencies may retrieve their data from a third state agency, the New York State Division of Criminal Justice Services, but said that he "can't really speak to what New York State is using for the databases." Id. at 28. In any event, the Government informed the Court that it had indeed written letters of clarification on Petitioner's behalf to both OSPRA and the Office of Teaching Initiatives ("OTI"), a division of the New York State Education Department that processes background checks, explaining the inaccuracy in Petitioner's record. Id. at 26. The Court requested that the Government file these letters with the Court, which the Government promptly did. ECF No 7.
On March 21, 2023, the Government also submitted to the Court copies of emails it received from both OSPRA and OTI in response to the Government's inquiry about Petitioner's background check. See ECF No. 8. In the first email, a representative from OSPRA informed the Government that it had Petitioner's "updated status information, so she is all set." ECF No. 8-1 at 1. In the second email, a representative from OTI informed the Government that its inquiry "would not go to our office as [Petitioner's] prints have already cleared [ ]on her teach account and she has no discipline holds? [sic]." ECF No. 8-2 at 1. In light of these responses indicating that Petitioner's records were correct, the Government argued that Petitioner's motion to expunge should be dismissed as moot. ECF No. 8 at 2.
LEGAL STANDARD
Under 28 U.S.C. § 534(a), the Attorney General is required to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" and "exchange such records and information with, and for the official use of, authorized officials of the Federal Government, including . . . the States . . . cities, and penal and other institutions." 28 U.S.C. § 534(a). Although "[n]o federal statute" authorizes a federal court to expunge a petitioner's arrest record, this authority nonetheless lies "within the equitable discretion of the court" and may be granted in "extreme circumstances." United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (citation omitted). When deciding whether such circumstances exist, the court must "balanc[e] the equities between the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties," with much weight afforded to the "compelling public need for an effective and workable criminal identification procedure." Id. (citation omitted)
In light of the standard disfavoring expunction, many district courts have concluded that adverse employment outcomes suffered by a petitioner with a criminal record are, on their own, insufficient to defeat the Government's law enforcement interest in those records. See, e.g., Ruiz v. United States, 19-mc-850, 2019 WL 3388817, at *3 (E.D.N.Y. July 25, 2019); Gardner v. United States, 10-mc-159, 2010 WL 2292222, at *1 (E.D.N.Y. Apr. 26, 2010). Many district courts have also declined to expunge the record of a petitioner's arrest or indictment even after the criminal case against that petitioner was dismissed. See, e.g., Bulla v. United States, 18-mc-299, 2021 WL 242149, at *1-2 (E.D.N.Y. Jan 25, 2021). Although "[c]ourts in this district have [begun to] question[ ] this high standard, and, in particular, the extent to which the standard fails to allow relief from the negative effect of a criminal record on procuring employment," Ruiz, 2019 WL 3388817, at *2 (collecting cases), the equitable test outlined in Schnizter remains the controlling standard absent contrary guidance from the Court of Appeals for the Second Circuit.
As with all equitable matters that come before a court, however, each motion to expunge "must be examined individually on its merits to determine the proper balancing of the equities." Schnitzer, 567 F.2d at 540. See also Fernandez v. United States, 09-mc-326, 2009 WL 2227140, at *1 (E.D.N.Y. July 24, 2009) ("[S]ome courts have even granted expungement where an arrest or conviction was valid . . . so long as sufficient 'extraordinary circumstances' existed."); Peters v. United States, 13-mc-103, 2013 WL 3280880, at *2 (E.D.N.Y. June 27, 2013) ("The government's express concession of an individual's innocence, . . . if coupled with hardship, can warrant the expunging of an arrest record when charges have been dismissed."). Indeed, a district court faces unique equities when presented with a motion to expunge a criminal record which is or may be inaccurate. The Government's interest in preserving an inaccurate record is very low, while the petitioner's interest in expunging an inaccurate record is very high. Some district courts have denied motions to expunge inaccurate records only after the Government took steps to ensure that the petitioner's record was first corrected. See, e.g., United States v. Grant, 94-cr-18, 2008 WL 2039309, at *1 (E.D.N.Y. May 9, 2008). Other courts have concluded that inaccuracy in a petitioner's records might itself be proper grounds for expunction. See United States v. Daisley, 95-m-59, 2006 WL 3497855, at *1 (E.D.N.Y. Dec. 5, 2006); Doe v. Immigration and Customs Enforcement, M-54, 2004 WL 1469464, at *2 (S.D.N.Y. June 29, 2004).
ANALYSIS
In light of this Court's obligation to balance the equities between the parties' interests, Schnitzer, 567 F.2d at 539, the Court turns first to the interests Petitioner highlights in support of her motion to expunge.
Petitioner argues, and the Government does not dispute, that the record of her 1993 arrest has caused her to miss out on multiple employment opportunities. She knows of at least two positions that were offered to her but withdrawn after her employers conducted a background check and were informed—incorrectly—that her 1993 charge was still "pending." Petitioner also argues that her 1993 arrest record has made it difficult for her to travel internationally—and that indeed, she was so traumatized by a 2003 border search at an airport which she suspects is related to her criminal record, that she fears leaving the country (lest she undergo another intrusive detention and search, or encounter another problem at the border) and thus has not seen her family in Colombia for twenty years.
Courts frequently decline to grant a motion to expunge simply because the petitioner faces adverse employment outcomes due to her criminal record. See, e.g., Fernandez, 2009 WL 2227140, at *2. Courts have reached the same result when the petitioner has argued that her criminal record has made it difficult to travel. Prophete v. United States, 10-mc-811, 2011 WL 5027172, at *1 (E.D.N.Y. Oct. 20, 2011) ("Petitioner's travel restrictions do not warrant relief."). However, courts deny motions to expunge on these grounds only after first concluding that the petitioners' underlying criminal records are accurate. Fernandez, 2009 WL 2227140, at *2 ("Where a record is accurate, regardless of the disposition of the case, courts have nearly uniformly rejected adverse employment effects as grounds for expungement." (emphasis added)); Gonzalez v. United States, 10-mc-547, 2010 WL 5860297, at *2 (E.D.N.Y. Nov. 22, 2010) (report and recommendation) adopted by 2011 WL 705399 (E.D.N.Y. Feb. 17, 2011) (concluding that adverse employment outcomes alone are not a valid basis for expunction of a criminal record "[a]bsent any issue with the record's accuracy" (emphasis added)); Daisley, 2006 WL 3497855, at *1 ("Although Daisley may have found it difficult to obtain employment due to the inaccuracy of his criminal record, this can no longer provide a basis for expunction now that the record has been corrected." (emphasis added)). In this case, on the other hand, all parties agree that Petitioner's prospective employers declined to hire Petitioner because, after conducting a background check, they were under the false impression that federal charges against Petitioner remained "pending." For this reason, Petitioner has made a compelling case that, unlike the equities presented in many other motions to expunge, her employment and travel troubles provide a sufficient basis for relief from this Court, since they stem not simply from her criminal record, but from an inaccuracy in her criminal record.
At oral argument, counsel for the Government informed the Court that he had reached out to various federal and state agencies, and that each one assured him that Petitioner's record was in fact accurate and reflected the contemporaneous dismissal of her 1993 charge. Not only did both the FBI and an internal investigator within the United States Attorney's Office inform the Government that the record of Petitioner's criminal history was correct, but counsel for the Government also wrote letters to "two entities with the State Education Department," who later informed counsel over the phone that Petitioner's records had already been "updated at some point between 2017 and 2023," and in any event were already accurate before the agencies received the Government's letter. ECF No. 9 at 25-26, 29. The Government also submitted to the Court copies of emails it received from two state agencies who informed the Government that Petitioner's "[finger]prints have already cleared" and that she was "all set." ECF No. 8-1; ECF No. 8-2. In light of these submissions, the Government urges the Court to dismiss this case as moot, arguing that the inaccuracy in Petitioner's record has been corrected. ECF No. 8 at 2.
However, while the Court appreciates what it has no doubt were the Government's good-faith efforts to ensure the record correctly reflects the status of the 1993 charge, the results of the Government's inquiry heighten, rather than assuage, the Court's concerns. The federal entities that the Government contacted regarding Petitioner's criminal record both reported to the Government that Petitioner's record already was accurate at the time these recent inquiries were made. ECF No. 9 at 25. Similarly, each state agency that the Government has contacted has also informed the Government that Petitioner's records are accurate, and had already been accurate, prior to the Government's inquiry. Id. at 25-27, 29. But this plainly cannot be so. As recently as late 2022, prospective employers have conducted background checks on Petitioner and received incorrect information saying that her dismissed 1993 federal narcotics charges remained "pending." Id. at 7, 20. As a logical matter, it simply must be that some government agency, either federal or state, is maintaining an inaccurate record of Petitioner's criminal history. In other words, despite the Government's recent efforts to ensure an accurate record of dismissal, it has yet to answer the question of why these supposedly accurate databases and agencies had incorrectly reported Petitioner's charge as "pending" in the first place. The Government has therefore not eliminated the risk that these agencies might do so again in the future.
The email from OSPRA that the Government submitted to the Court might, on first glance, suggest that OSPRA corrected its records in response to the Government's letter and phone call to the agency. ECF No. 8-1. However, at oral argument, counsel for the Government informed the Court that OSPRA's records had already been corrected "at some point between 2017 and 2023 when we spoke," and that, as he understood it, "they already had that correction before I even sent the letter." ECF No. 9 at 26, 29.
At oral argument, the Court provided the Government the opportunity to address this logical gap:
THE COURT: So I guess I interpret [the state and federal agencies'] responses to you a little bit differently, which is if they had said Oh my goodness, you know, Mr. Assistant United States Attorney, I'm so glad you called, we have this inaccuracy, but we've now fixed it in response to your letter. I might be more persuaded that the taint has been cut off and it's been cured. The fact that they're telling you that there was nothing wrong with their records at the time you called them leaves some question in mind of, well, if they're saying that there was nothing wrong with their records and it was accurate and reflected the dismissal, why was it still showing up less than a year ago when she applied for a job in a school that the charge was open? . . . .ECF No. 9 at 30-31.
MR. SIMMONS: Your Honor, unfortunately I'm limited in what the State was willing to tell me just calling them, so I totally appreciate your position on this.
Although the Government attempts to analogize Petitioner's motion to other cases in which district courts have dismissed motions to expunge as moot once the inaccuracies in the petitioners' records were corrected, see ECF No. 8 at 2, the logic of these cases is not applicable here. In United States v. Grant, for example, the petitioner moved to expunge a federal drug charge from her record because it failed to reflect the fact that she had been acquitted. 2008 WL 2039309, at *1. The Court dismissed the petitioner's motion, but only because the Government took the necessary steps to correct her record: it "contacted the Federal Bureau of Investigation," which then "updated" petitioner's record "in the National Crime Information Center ('NCIC') database," and the Government then submitted to the Court "an updated printout received from the FBI" which "now states 'Sentence-May 1994 All Counts Acquitted/Dismissed.' " Id. The Court therefore concluded that the petitioner's motion was moot because "[t]he accuracy of the NCIC record has been addressed and the error corrected." Id. at 2. Similarly, in United States v. Daisley, a petitioner moved to expunge his record, which incorrectly reflected a "pending" criminal case that had in fact been dismissed more than a decade prior. 2006 WL 3497855, at *1. The Court dismissed the petitioner's action as moot, but only after the Court ordered the Government "to make any appropriate corrections" to the petitioner's record, and the Government then submitted to the Court "an updated criminal history record for [petitioner], which now accurately reflects that the 1995 case was dismissed." Id. However, the facts that rendered the petitioners' motions moot in Grant and Daisley—that is, submissions that satisfied a court that the Government had located the inaccuracy in the petitioner's records and corrected it—are simply not present in this case. Here, no state or federal agency has actually located the source of the inaccuracy in Petitioner's record.
This, then, brings the Court to its analysis of the equities that favor denying Petitioner's motion—namely, the law enforcement interest in maintaining a record of Petitioner's criminal history. As a default matter, the Court must afford great weight to the "compelling public need for an effective and workable criminal identification procedure," and any decision considering expunction must consider "the right of law enforcement officials to perform their necessary duties." Schnitzer, 567 F.2d at 539 (citations omitted). Indeed, the only interest in maintaining Petitioner's record that the Government identified at oral argument was "maintaining a historically accurate account of what happened in the Eastern District of New York." ECF No. 9 at 32. Here, however, this prong is owed significantly less weight in light of the fact the Government has not been able to deduce why Petitioner's record, at least in some government database(s), apparently remains inaccurate. Indeed, on this record, the Court's consideration of the law enforcement interest weighs in favor of expunction, since any city, state, or federal law enforcement official that conducts a background check on Petitioner—during a vehicular stop, a customs check at the airport, or otherwise—and incorrectly learns that she has a "pending" federal narcotics charge could very well waste significant time questioning, detaining, or even arresting her based on a possible "pending" charge before realizing the mistake.
At oral argument, the Government conceded that there was no law enforcement interest in inaccurate records, and that the Government "very much want[s] accuracy in the records." Id. at 33. However, it seems clear to the Court that the Government is not itself certain that the inaccuracy in Petitioner's record has in fact been corrected. At oral argument, the Government averred that if Petitioner is confronted with this inaccuracy in her record in the future, counsel for the Government would be willing to "write, or call . . . anyone to whom [Petitioner] feels is necessary to clarify" it. Id. at 33-34. While this offer may be admirable, it indicates to the Court that the Government knows Petitioner's inaccurate criminal record may continue to plague her. First, the Government's piecemeal proposal would amount to little more than a game of Whack-a-Mole, reactively quashing one inaccurate report at a time as soon as such a report is discovered, which may well prove too little or too late to rectify the harm in each such instance. Moreover, the Government's letter to a prospective employer would do nothing to help a law enforcement officer who stops or investigates Petitioner based on inaccurate record pulled from a government database. Indeed, in light of the Government's thorough but ultimately inconclusive inquiry to track down the inaccuracy in Petitioner's record, the simplest way to protect law enforcement's interest in accurate records would be to grant Petitioner's motion to expunge.
Indeed, Petitioner has already suffered this outcome once. At oral argument, Petitioner informed the Court that by the time she was able to provide her most recent prospective employer with confirmation that she did not have any pending drug charges, "they had already hired another person." ECF No. 9 at 10.
On the current record, it is unclear whether the inaccuracy that has recurred in Petitioner's background checks is attributable to state or federal actors (or both), since each state and federal agency from whom the Government has requested information has asserted that its record of Petitioner's 1993 arrest is correct. Even if the inaccuracy is attributable only to state agencies, however, the balance of equities would still merit expungement, notwithstanding the fact that the United States is the only respondent in this action. Schnitzer requires a district court to balance a petitioner's interest in expungement not against the federal government's interest in the record, but against "the right of law enforcement officials" generally to perform their duties. 567 F.2d at 539 (citation omitted). Indeed, the federal government's statutory authority to maintain these records is intended in part to help the law enforcement branches of other government bodies, including those of the states. 28 U.S.C. § 534(a)(4).
In sum, the Court concludes that Petitioner's motion presents the rare "extreme" case in which the balance of the equities favor expunction. Schnitzer, 567 F.2d at 539. Indeed, it is unclear to the Court why the Government opposes Petitioner's motion, since it seems to be in all parties' interests that Petitioner's inaccurate record be expunged. The hardships to Petitioner, in combination with her otherwise "exemplary" life, favor expunction. Cf. Peters, 2013 WL 3280880, at *2 ("The government's express concession of an individual's innocence, . . . if coupled with hardship, can warrant the expunging of an arrest record when charges have been dismissed."). Moreover, the latent source of the inaccuracy in multiple reports regarding Petitioner's criminal record also demonstrates to the Court that there is simply no law enforcement interest in maintaining the record of Petitioner's 1993 arrest. The equities here strongly favor expunction.
Conclusion
For the reasons stated herein, Petitioner's motion to expunge the record of her 1993 arrest and charges is GRANTED. The Government shall promptly confer with the Clerk of Court regarding compliance with the terms of this order.
SO ORDERED.