Opinion
7:07-CR-28 (HL), 6:05-CR-11 (WLS).
January 29, 2008
ORDER
Before the Court is a motion by Everett Montgomery ("Montgomery") to seal or expunge the record of his indictment (Doc. 158). The charges against him were dismissed with prejudice on August 30, 2006 on the Government's motion. Although the Court has the power to expunge the record of an indictment, the circumstances under which it may do so are exceedingly limited.Cavett v. Ellis, 578 F.2d 567 (5th Cir. 1978); see also United States v. Sumner, 226 F.3d 1005 (9th Cir. 2000) (holding that district court has ancillary jurisdiction to expunge criminal records, but not on purely equitable grounds); United States v. Smith, 940 F.2d 395 (9th Cir. 1991); United States v. Schnitzer, 567 F.2d 536 (2nd Cir. 1977). But see United States v. Johnson, 714 F. Supp. 522 (S.D. Fla. 1989) (expunging record where court granted motion to dismiss at the end of defendant's trial).
Montgomery, acting pro se, identifies the following reasons for expunging his record: (1) he has never been convicted of a criminal offense, (2) he has never had a record expunged or sealed, (3) all the counts against him were dismissed, (4) he is a single parent with custody of two children, and the arrest record has made it very difficult to find employment and provide for his family. Montgomery states that he "would like, once again, to become an asset to [his] community, organizations, and society." Mot. Expunge 4.
These factors must be considered in determining whether to expunge the record of indictment, but they are not alone sufficient to justify the exercise of such an extraordinary remedy. The Court therefore orders the Government to respond to Montgomery's motion and identify any relevant considerations, including but not limited to whether there was a constitutional infirmity in his arrest or indictment, or whether a statute authorizes expungement under these circumstances. See Sumner, 226 F.3d at 1012 n. 5-n. 12 (listing statutes that authorize expungement). The Government's response must be filed on or before February 22, 2008.