Opinion
Case No. 2:90-cr-222-5.
June 28, 2006
ORDER
On November 29, 1990, an indictment was returned charging the defendant with one count of conspiracy to distribute and to possess with the intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846, one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On February 21, 1995, this court entered an order granting the government's motion to dismiss the indictment without prejudice insofar as it pertained to the defendant. The defendant was still a fugitive at the time. On May 8, 2006, the defendant filed a motion to dismiss the indictment with prejudice and for expungement of the record of the indictment.
Pursuant to Fed.R.Crim.P. 48, the government may dismiss an indictment with leave of court. Fed.R.Crim.P. 48(a). The court may also dismiss an indictment if unnecessary delay occurs in bringing a defendant to trial. Fed.R.Crim.P. 48(b)(3). In this case, the dismissal was on motion of the government with leave of court. At the time the government's unopposed motion to dismiss was granted, defendant was a fugitive, and the court had no information before it at that time which would have warranted dismissing the indictment with prejudice. The charges against defendant were dismissed, and the indictment against him is no longer pending.
The government has given no indication in its response to the defendant's motion that it intends to pursue these charges against the defendant eleven years after the dismissal of the indictment. Absent re-indictment, there is no live controversy. Even assuming that this court has jurisdiction, at this late date, to amend the previous order to a dismissal with prejudice, any determination now that the prosecution should be barred would be potentially unnecessary or premature and made without full knowledge of all the circumstances. If defendant is ever re-indicted, then his speedy trial arguments may be asserted at that time. Defendant's motion to change the dismissal of the indictment to a dismissal with prejudice is denied.
In regard to defendant's motion for expungement of the indictment, there is no federal statute which generally authorizes expungement for a federal offense. It is within the inherent equitable powers of a federal court to order expungement of records in an appropriate case. United States v. Doe, 556 F.2d 391 (6th Cir. 1977). However, this equitable authority is limited and narrow, and will only be exercised in extreme circumstances. United States v. Robinson, 79 F.3d 1149 (table), 1996 WL 107129 at *1 (6th Cir. 1996). See also Sealed Appellant v. Sealed Appellee, 130 F.3d 695 (5th Cir. 1997);United States v. Pinto, 1 F.3d 1069 (10th Cir. 1993);Geary v. United States, 901 F.2d 670 (8th Cir. 1990).
The determination of whether expungement is appropriate requires balancing the interest of the government in maintaining law enforcement records against the defendant's rights or harm to the defendant resulting from maintaining the records. Schwab v. Gallas, 724 F.Supp. 509 (N.D.Ohio 1989). It has been recognized that retaining and preserving arrest and other records serves the important function of promoting effective law enforcement.United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977). The defendant bears the burden of establishing that expungement is warranted. Sealed Appellant, 130 F.3d at 702.
Records of valid indictments ordinarily may not be expunged.United States v. Flagg, 178 F.Supp.2d 903, 905 (S.D.Ohio 2001). If an indictment is properly obtained, the record of the indictment should not be expunged, even if the charges are later dismissed. Id. (citing Schnitzer, 567 F.2d at 540). As the court in Flagg noted:
The rationale for generally refusing to expunge arrest or indictment records is that an arrest or indictment has independent legal significance, insofar as it shows the existence of probable cause to believe that a defendant committed a crime, even when the Government ultimately fails to prove guilt. Schnitzer, 567 F.2d at 540. As a result, the Government has an important interest in keeping a record of the arrest or indictment.Id.
An exception to this rule is when the government dismisses the indictment and concedes the innocence of the defendant, or when the indictment is constitutionally infirm, is based on a statute which is subsequently declared unconstitutional, or is returned for purposes of harassment or intimidation or some other improper reason. Id. at 906 (citing Sealed Appellant, 130 F.3d at 697). However, nothing before the court indicates that any of these exceptions are present in this case.
Defendant requests expungement on the basis that he is presently a law-abiding citizen. The fact that a defendant has had no further problems with the law has been held not to warrant the exercise of the equitable power of expungement. Schwab, 724 F.Supp. at 511; United States v. Stromick, 710 F.Supp. 613, 614 (D.Md. 1989). Defendant has presented no grounds which would warrant the exercise of the court's equitable powers to order expungement, and defendant's motion for the expungement of the indictment is denied.