Opinion
Case No. 05-CR-58.
March 20, 2006
ORDER
On February 15, 2005, a grand jury sitting in this district returned a two count indictment charging defendants Benjamin Riche ("Riche") and Laura Vanryzin ("Vanryzin") with violations of 18 U.S.C. § 1341 (Count one); and Riche with violating 18 U.S.C. § 1029(a)(7) (Count two). Specifically, at Count one, the indictment charges both defendants with mail fraud, alleging that the defendants knowingly participated in a scheme to defraud Tracfone Wireless by purchasing, fraudulently refurbishing, and mailing via Federal Express, approximately 200 altered cellular telephones. Count two charges Riche with the selling of the cellular telephones after they had been altered.
The investigation leading up to the indictment began several months earlier, when on June 17, 2004, ten law enforcement officers executed a search warrant at Riche's and Vanryzin's residence in Menomonee Falls, Wisconsin. April 7, 2005 Hearing Tr. at 7-8. As the local and federal law enforcement agents entered the home, they informed Riche and Vanryzin that a search was being executed on the premises in relation to a fraudulent scheme involving refurbishing and reselling cellular telephones. Id. at 15. Riche and Vanryzin were separately questioned, and each voiced a similar level of confusion regarding the officers' allegations relating to cellular telephone fraud. During the execution of the search warrant, both defendants expressed the belief that they were unaware that their conduct was fraudulent, and each appeared surprised during the execution of this search warrant. See id. at 40. However, they conveyed a willingness to cooperate as best they could, and Riche consented to subsequent searches of his office and his father's office in an effort to assist the law enforcement agents. Id. at 22, 24. While conducting the search of his father's office, the agents seized a computer and cable that Riche had informed them had been used to refurbish the cellular telephones. Id. at 26.
The defendants were summoned and appeared on March 4, 2005, where each entered a plea of not guilty to the charges in the indictment. The defendants were severed for purposes of trial, and a jury trial as to Riche commenced on May 17, 2005. However, shortly after the trial began, it abruptly ended when the government moved to dismiss the indictment as to both defendants. The court granted this motion and requested that a written order be prepared for signature. Within a matter of days, the defendants, through their respective counsel, filed motions to expunge the judicial records as to these defendants. The expungement motions are currently before the court for consideration.
ANALYSIS
Expungement of records has been categorized as an "extraordinary" remedy which should be granted only in instances where the adverse consequences suffered by the defendant in maintaining the records are substantial. United States v. Flowers, 389 F.3d 737 (7th Cir. 2004). The Seventh Circuit has held while the judiciary has jurisdiction to order expungement of its own records, it does not have the jurisdiction to order expungement of executive branch records. United States v. Janik 10 F.3d 470, 472 (7th Cir. 1993).
The Seventh Circuit employs a balancing test for motions to expunge and has held that expungement of judicial records is appropriate when unwarranted adverse consequences outweigh the strong public interest of "maintaining accurate and undoctored records." U.S. v. Flowers, 389 F.3d at 739. Turning first to the public interest of maintaining judicial records, the court notes that in a typical criminal case, there is an unequivocally high interest in their preservation. This is emphasized not only in the abundance of federal case law denying motions to expunge records, but also in 28 U.S.C. § 534 and the United States Sentencing Guidelines.
See, e.g., Geary v. United States, 901 F.2d 679 (8th Cir. 1990) (noting that a federal court may order expungement only in "extraordinary circumstances"); United States v. Friesen, 853 F.2d 816 (10th Cir. 1988) (holding that an acquittal of the charges does not automatically entitle a defendant to expungement of records); Allen v. Webster, 742 F.2d 153, 155 (4th Cir. 1984) (expungement of an arrest record is relief confined to "exceptional circumstances"); and United States v. Schnitzer, 567 F.2d 536, 539 (2nd Cir. 1977) (holding that expungement of records is to be granted only in "extreme circumstances").
28 U.S.C. § 534 sets forth the requirement that the Department of Justice make criminal records available to other governmental agencies, evidencing the high interest in preserving these records as they are used to assist law enforcement. See 28 U.S.C. § 534 (2005). Additionally, sentencing calculations rely heavily on information relating to a defendant's prior criminal record. United States Sentencing Guideline § 4A1.1 sets forth specific increases to be assigned, each relating to a defendant's prior criminal history, and inherently emphasizes the need for records to be accurate and complete. Thus, both federal statutes and Sentencing Guidelines greatly underscore the exceptionally high interest in the preservation of records.
These preservation interests are to be balanced against what the Seventh Circuit has referred to as "unwarranted adverse consequences." Flowers, 389 F.3d at 739. These unwarranted adverse consequences must be "uniquely significant" to outweigh the interest to preserve the records. Id. Flowers further commented that these "unwarranted adverse consequences" may be difficult to predict. Id.
However, in a decision preceding Flowers, this district provided concrete examples of what a court may consider as "adverse consequences." See United States v. Sobat Fotouhi, 2002 U.S. Dist. LEXIS 14601 (E.D. Wis. 2002) (noting that interference with employment; the loss of the right to vote; the loss of the right to hold public office; deportation, denial of naturalization services; and significant damage to a person's emotional well-being are all examples of possible "adverse consequences"). Sobat Fotouhi further stated that perhaps the more difficult question is, if there are adverse consequences, if these adverse consequences are truly unwarranted. Id. at *21. The court also provided examples of considerations in determining this question. See id. (articulating that the nature of the offense, the type of adverse consequences the defendant claims, the connection between these adverse consequences and the offense, and the character of the defendant are all relevant considerations when determining if such consequences are unwarranted). Where relevant, these considerations will be applied to Riche's and Vanryzin's motions.
In Riche's brief supporting his motion to expunge, he states that he is in a unique position that warrants expungement due to the nature of the charges against him and the nature of his employment. Riche points out that the investigation and prosecution against him relates to his business in the cellular phone industry of refurbishing and reselling cellular telephones. Prior to this indictment, Riche states that he had a solid reputation among his peers and customers. Riche is, not surprisingly, concerned about the tarnish this case may cause to his reputation in the cellular phone industry. Additionally, Riche noted that he is a young adult, and in the likely event that he pursues a different career in his lifetime, he is concerned that this indictment and litigation will provide unnecessary hurdles in his employment search. Finally, Riche stated that his criminal record was virtually unblemished and seeks expungement to return it to its previous condition.
Vanryzin cites similar concerns as Riche. In addition to noting difficulties in pursuing future employment, Vanryzin requests expungement for the following reasons: (1) to maintain her previously untarnished criminal history; (2) to dispel the chance that one may think she has undiscovered criminal conduct; and (3) to right her loss of the constitutional right to a jury trial.
The court notes that this is indeed a valid concern and an interesting theory to set forth in support of her expungement motion. However, the court will decline to address this issue as the Seventh Circuit has previously stated that a defendant "need not show a constitutional violation as a premise of the relief" she seeks for expungement. United States v. Diamond, 649 F.2d 496, 498 (7th Cir. 1981).
Previous cases in this district have found that employment impediments, when they relate to potential misunderstandings that are detrimental and damaging to a professional reputation, are sound reasons for granting expungement motions. United States v. Bohr, 406 F.Supp. 1218, 1220 (E.D. Wis. 1976). In Bohr, an attorney successfully sought expungement of records for a case in which he was indicted, but that subsequently ended in a dismissal of the case. Then-Chief Judge Reynolds noted that the defendant's "indictment and arrest record constitute an unwarranted slue on his reputation and character" and ordered the Clerk for the Eastern District of Wisconsin to expunge such records. Id.
Riche and Vanryzin have substantially similar concerns to the defendant in Bohr, which lends support to their motions to expunge. Moreover, the very conduct on which the defendants were originally indicted relates to their professional work: the criminal conduct alleged in the indictment regards Riche's work in refurbishing cellular telephones. This indictment, without the attendant completion of the prosecution, may lead to untrue assumptions and unwarranted adverse consequences to Riche in his business. Vanryzin is in a somewhat similar position. She was indicted on a count of mail fraud, and she is self-employed using an internet auction website to mail purchased items using various carriers across the country. She, like Riche, has legitimate concerns relative to unwarranted negative assumptions relating to her employment.
Riche and Vanryzin also support their expungement motions with a desire to return their criminal history records to the conditions they were in prior to this case. While there is not an abundance of federal case law suggesting that a desire to maintain a clean criminal record warrants expunction, several state cases have supported this notion. See, e.g., Fulmer v. State, 987 S.W.2d 700, 701(listing that the absence of a prior criminal conviction is valid consideration when determining if expungement is warranted). Riche and Vanryzin came before this court with a virtually untarnished criminal history; Vanryzin's record is totally void of an prior criminal conduct, and Riche has a 1992 (when Riche was age 14) theft conviction for switching price tags on an item that cost approximately $5.00. While the court cannot base granting the expungement motions on these factors alone, they are nevertheless compelling when considered in light of the entirety of their situation.
Another pertinent consideration Sobat Fotouhi suggests examining is the character of the defendants. If a defendant seems rather unlikely to re-offend, this may lead more to conclusions the attendant adverse consequences are in fact unwarranted. Sobat Fotouhi, 2002 U.S. Dist. LEXIS 14602 *21-22. The court stated:
[i]f a court has strong reason to believe that an applicant will not re-offend, either because he has been rehabilitated or because the offense was an aberration, the argument that a particular adverse consequence is unwarranted will be stronger.
Id.
While this court has not had the benefit of time to know whether or not Riche and Vanryzin will re-offend, their prior criminal records may enlighten it when considering this question. If past conduct is any indication of future conduct, this court can quite safely conclude that it's very unlikely that either Riche or Vanryzin will have any future criminal records.
A final consideration to note is a distinction the Seventh Circuit has made clear: the material difference between cases that end in a valid conviction or acquittal; and those cases that end in an aborted prosecution such as Riche's and Vanryzin's. United States v. Diamond, 649 F.2d 496, 498 (7th Cir. 1981). In opposition to the expungement motions before the court, the government's letter cites cases where defendants unsuccessfully moved for expunction after a valid conviction; after an acquittal; and after a conviction was overturned. See United States v. Flowers, 389 F.3d 737 (7th Cir. 2004) (defendant showing rehabilitative efforts after a valid conviction not entitled to expungement); See United States v. Scruggs, 929 F.2d 305 (7th Cir. 1991) (acquittal on felony gun charges did not entitle defendant to expungement); United States v. Janik, 10 F.3d 470 (7th Cir. 1993) (conviction overturned based on violation of speedy trial act did not entitle defendant to expungement). However, Diamond was careful to point out the distinctions between the situations in the cases the government cites to and ones where the "prosecution was aborted at the government's request." Diamond, 649 F.2d at 498. While it is true that Flowers, Scruggs, and Janik support the denial of expungement motions in their respective circumstances, they are distinguishable from a Diamond situation, which is the most analogous to the case at hand.
Riche's and Vanryzin's motions provide compelling reasons in support as to why the consequences they claim to suffer are not only adverse, but also unwarranted. While there should be no mistake made that expungement of records is still a rare exception in the courts, in light of potential employment and reputation consequences they suffer, their character, and the nature of the case, I am satisfied that these two defendants have met the high burden that warrants an expungement of the judicial records. The Clerk of the United States District Court for the Eastern District of Wisconsin is ordered to implement this order by removing from the court records and files pertaining to this matter.
Accordingly,
IT IS ORDERED that the government's oral motion to dismiss the indictment as to the named defendants Benjamin Riche and Laura Vanryzin be and the same is hereby GRANTED with prejudice.
IT IS FURTHER ORDERED that Riche's and Vanryzin's motions to expunge be and the same are hereby GRANTED.
The Clerk of the Court is directed to take all appropriate steps to implement this order of expungement.