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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"
Summary of this case from U.S. v. RicheOpinion
Case No. 02-CR-38
July 11, 2002
Stephan A. Ingraham, for Plaintiff.
Dean A. Strang, for Defendant.
DECISION AND ORDER
On June 14, 2002, defendant Sobat Fotouhi pled guilty to one count of making false statements to the FBI in violation of 18 U.S.C. § 1001, and I sentenced him to two years probation. Defendant then asked that his conviction be expunged contingent upon his successful completion of his sentence. I now address his request.
I. BACKGROUND
Defendant is sixty-seven years old and was born in Iran. In 1953 he was conscripted into the Iranian Navy. He was periodically stationed at bases in the United States and apparently came to feel an affinity for this country. In 1973 he began working at the United States Embassy in Tehran and was employed there in 1979 when followers of the Ayatollah Khomeini occupied the embassy.
Defendant was accused of spying for the United States and was jailed and tortured by the Khomeini regime. He was whipped, dangled upside down by one leg for extended periods of time, locked in a stockade while water was dripped repeatedly on his head and forced to stand in a ditch in the dark with water up to his chin. He escaped but was periodically re-arrested and tortured.
Eventually, he left Iran and went to Switzerland and, in 1988, made his way to the United States. In 1994 he became a citizen. He lives here with his wife and works as a clothing salesman. He has no prior criminal record.
In the present case, defendant falsely told the FBI that a cousin in Iran had informed him that terrorist attacks were to occur in England and the United States. Defendant also asked to be paid for the information. However, soon after, defendant acknowledged that he had lied and, thereafter, was charged and pled guilty.
At sentencing, defendant presented two psychiatric reports stating that he was bipolar and suffered from post-traumatic stress disorder arising out of his incarceration and torture in Iran. The reports stated that defendant's offense was occasioned by a manic episode caused by these conditions. Based on the doctors' reports, I granted defendant a two-level downward departure under United States Sentencing Guideline Manual § 5K2.13 for having committed the offense while suffering from a significantly diminished mental capacity.
II. DISCUSSION
A. Authority to Expunge
Expungement is the removal of a judgment of conviction from a person's criminal record. Black's Law Dictionary 603 (7th ed. 1999). A court's authority to expunge may be statutory, see, e.g., 18 U.S.C. § 3607 (c) (permitting expungement of convictions and other records of certain drug offenses committed by individuals under the age of twenty-one); Wis. Stat. § 973.015 (authorizing expungement of misdemeanors committed by persons under twenty-one who successfully complete their sentences); or based on the court's inherent authority. For example, the Seventh Circuit Court of Appeals permits district courts to expunge judicial (but not executive branch) records pursuant to their inherent power to manage judicial business. United States v. Janik, 10 F.3d 470, 471-72 (7th Cir. 1993); see also United States v. Bohr, 406 F. Supp. 1218, 1219 (E.D. Wis. 1976) ("In the absence of a specific denial of power, this court may fully effectuate its jurisdiction and do complete justice in the cases before it."). In this circuit, expungement is permitted "[i]f the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records." Janik, 10 F.3d at 472 (citing Diamond v. United States, 649 F.2d 496 (7th Cir. 1981)).
The Seventh Circuit has considered expungement requests in three cases. In Diamond, the plaintiff was indicted for assisting a co-defendant evade income taxes. But, when the co-defendant pled guilty, the indictment was dismissed. Two decades later Diamond sought expungement, arguing that he had no subsequent contacts with the law, and that his record was interfering with his employment opportunities. The district court dismissed for failure to state a claim. The court of appeals reversed, holding that relief was available on a case-by-case basis. Diamond, 619 F.2d at 499 (citing United States v. Linn, 513 F.2d 925 (10th Cir. 1975)).
The court stated that:
Diamond has alleged facts indicating that his encounter with the criminal justice system was an aberration. In these days of employer awareness of high recidivism, this truly may present an "unusual" or "extreme" case in which the extraordinary relief Diamond requests is appropriate so that his employment will not be unfairly refused.
The Government should be required to state why the indictment against Diamond was dismissed on its motion and why it is necessary to maintain this 17-year-old rap sheet. If he is to be denied this relief, the district court judge must give his reasons therefor. Absent valid reasons Diamond should be permitted to prevail.Id.
In Scruggs v. United States, 929 F.2d 305 (7th Cir. 1991), the plaintiff requested expungement of the record of a ten year old felon in possession charge of which he was acquitted. The district court denied relief. On appeal, the Seventh Circuit first determined that federal courts lacked jurisdiction to expunge arrest records because they were executive branch records. The court noted that "a court's' inherent powers' concern the management of judicial business. Judges lack supervisory powers over the behavior of the Executive Branch of the government." Id. at 306. The court also stated that the applicant did "not qualify for relief under any approach. . . . Scruggs has the proverbial record as long as an arm; one arrest more or less will not greatly affect his standing in the community." Id. at 307.
The Seventh Circuit appears to be the only circuit that authorizes district courts to expunge judicial but not executive branch records. See Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 696-97 (5th Cir. 1997). In Sealed Appellant, the court held that expungement of executive branch records was permissible only when the applicant can establish an "affirmative rights violation by the executive actors holding the records of the overturned conviction." Id. at 699.
Finally, in Janik the court considered a request to expunge a firearms conviction that had been reversed because of a Speedy Trial Act violation. The court determined that expungement of judicial records was authorized and then restated the balancing test enunciated in Diamond. Janik, 10 F.3d at 472. However, the court denied relief finding that Janik's interest in expungement amounted "to a personal fear that he will not obtain promotions in the United States Army Reserves and that he will be rejected from civilian employment with various municipal and county employers because of their practice of fingerprinting applicants for all positions." Id. at 472-73. The court also stated that because Janik had been convicted, his "case presents a stronger reason for denying the relief sought than Aaron Scruggs did." Id. at 473.
In Bohr, which was cited with approval in Diamond, 649 F.2d at 498, the plaintiff, an attorney, requested expungement of records related to a mail fraud charge that had been dismissed. Although the record did not bar his admission to practice law in Arizona, where he had relocated, the plaintiff argued that it "could be a source of embarrassment or misunderstanding to his professional detriment." bohr, 406 F. Supp. at 1220. The court granted relief, stating:
The potential that improper inferences will be drawn from arrest records is significant. Since an attorney's reputation is of the utmost importance in the practice of law, this is a particularly sympathetic case for relief. The incidents in question here are more than eleven years old, and no occurrence in the interim suggests that the defendant has ever been involved with the commission of any crime. Nothing suggests that these records are needed in the interest of law enforcement. Under the circumstances of this case, the preservation of [his] indictment and arrest records constitute an unwarranted slur on his reputation and character.Id. (citations omitted).
B. Expungement of Valid Convictions
Some circuits have held that in the absence of statutory authority courts may not expunge valid convictions. The Ninth Circuit recently considered a request to expunge a twenty-six year old drug conviction obtained under the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. § 5010(a), a statute repealed by Congress in 1984. United States v. Sumner, 226 F.3d 1005, 1007-08 (9th Cir. 2000). The FYCA authorized expungement of the convictions of youthful offenders serving sentences of probation if the court unconditionally discharged the offender's probation before the sentence expired. Id. at 1009. The Ninth Circuit denied relief under the FYCA because Sumner had failed to comply with the conditions of his sentence. Id.
His statutory argument unavailing, Sumner also sought expungement pursuant to the court's inherent power. However, the Ninth Circuit held that courts could not "expunge a record of a valid arrest and conviction solely for equitable considerations." Id. at 1014. Rather, the ancillary jurisdiction to expunge was "limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error." Id. The court reasoned that expungement for equitable reasons such as to reward rehabilitation did not serve the dual purposes of ancillary jurisdiction, which were to permit courts to dispose of matters related to cases before them and to enable courts to manage their proceedings, vindicate their authority, and effectuate their decrees. Id.
The court also said that the expungement of valid arrest and conviction records usurped the power of Congress and of the executive branch because its effect was to nullify a law passed by Congress and enforced by the executive. Id. The court further opined that expungement infringed on the interests of states, indicating: "When states have established professional standards that are affected by criminal records, expungement also trenches on their right to regulate employment within their borders." Id. The court pointed to the absence of statutory authority to expunge, stating:
Sumner has not cited, nor has our research disclosed, any statute in which Congress has empowered a district court to reopen a criminal case after its judgment has become final for the purpose of expunging a record of a valid arrest or conviction to enhance a defendant's employment opportunities. We hold that a district court does not have ancillary jurisdiction in a criminal case to expunge an arrest or conviction record where the sole basis alleged by the defendant is that he or she seeks equitable relief. The power to expunge a record of a valid arrest and conviction on equitable grounds must be declared by Congress. The Constitution prohibits federal courts from expanding their own subject matter jurisdiction.Id. at 1015; accord United States v. Scott, 793 F.2d 117 (5th Cir. 1986) (holding that "the court is not empowered to [expunge where] the validity of the original conviction is unquestioned"); see also United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993) (holding that "federal courts may, in extreme cases, expunge a federal conviction that has, in some manner, been invalidated").
The Sixth Circuit, in two unpublished decisions, has sent mixed signals concerning whether valid convictions may be expunged. In United States v. Robinson, No. 94-1945, 1996 U.S. App. LEXIS 8245 (6th Cir. Mar. 8, 1996), the court noted that "courts have uniformly denied expunction requests regarding valid convictions." Id. at *5 (citing Janik, 10 F.3d at 472 and other cases). However, the court then stated: "While these cases may not establish a per se rule against expunging valid convictions, they illustrate that petitioners must put forth much more compelling and extraordinary circumstances than those relied upon by Robinson." Id. at *5.
Robinson asserted that after losing her job as the result of downsizing, her conviction prevented her from obtaining comparable employment. Id. at *2.
In In re Mamoth, No. 98-5764, 1999 U.S. Dist. LEXIS 14667, at *2 (6th Cir. June 24, 1999), the court affirmed the denial of an expungement motion by a defendant who conditionally pled guilty but whose conviction was later overturned on Fourth Amendment grounds. The court stated that the defendant could not dispute that the judicial records accurately reflected his conviction and the dismissal of the indictment, and held that expungement would not be appropriate in light of his conditional guilty plea. Id. at *2 (citing Janik, 10 F.3d at 473). The court thus suggested that applicants who had been found guilty as the result of a plea or trial should not be granted expungement, even if their convictions were later overturned. However, the court did not adopt a per se rule to that effect or disavow Robinson.
The Second Circuit has implied that expungement of valid convictions is inappropriate. In United States v. Schnitzer, 567 F.2d 536, 537 (2d Cir. 1977), the court declined to expunge an indictment that the government dismissed after a co-defendant pled guilty. The court stated that "the power to expunge' is a narrow one, and should not be routinely used whenever a criminal prosecution ends in an acquittal, but should be reserved for the unusual or extreme case.'" Id. at 539 (quoting Linn, 513 F.2d at 927). The court cited as examples cases involving mass arrests of people for harassment purposes or police misuse of records to harm a defendant, or where a statute of conviction was declared unconstitutional. Id. at 540. The court noted that the dismissal of Schnitzer's indictment was not equivalent to a governmental concession of his innocence. Id. at 540. Thus, for the Schnitzer court, actual innocence or conviction or arrest tainted by illegality seemed to be the touchstones. Accord Allen v. Webster, 742 F.2d 153, 155 (4th Cir. 1984) (adopting logic of Schnitzer concerning when expungement is appropriate); see also Geary v. United States, 901 F.2d 679, 680 (8th Cir. 1990) (noting that expungement had been granted in cases of mass arrests without probable cause, arrests under statutes held unconstitutional, and arrests for the purpose of harassment).
See also United States v. Noonan, 906 F.2d 952, 953 (3d Cir. 1990), where the court considered whether expungement was appropriate after the applicant had received a presidential pardon. Thus, the issue was the inverse of that presented in Janik — whether the executive branch through a pardon could erase judicial branch records. Id. at 955. The court concluded "that no such entitlement exists because the grant of a pardon does not wipe out the record of a conviction." Id. at 956. The court noted that expungement was an "extraordinary remedy," id., appropriate when an arrest or conviction was constitutionally infirm, based on a statute later declared unconstitutional, or where an arrest was unlawful because it was made for the purpose of harassment or intimidation. Id. at 957. The court concluded that the pardon did not eliminate Noonan's conviction and did not justify expungement of his criminal court record. Id. at 960.
Other courts have found that expungement is available to those with valid convictions, at least when "extraordinary circumstances" are present. In United States v. Steelwright, 179 F. Supp.2d 567, 568 (D. Md. 2002), the court considered a motion for expungement by a defendant convicted of misdemeanor possession of drug paraphernalia. The court determined that it was authorized to expunge the conviction but nevertheless denied the request, explaining:
Mr. Steelwright does not demonstrate facts suggesting "extreme or exceptional circumstances" exist warranting this Court to grant his motion for expungement. He does not allege that his arrest or conviction were unlawful, that he was denied a constitutional right or even that he was denied a specific job opportunity. Although this Court is cognizant of and applauds Mr. Steelwright for the actions he has taken after his arrest and subsequent conviction, the grounds set forth in his motion do not rise to the type of "extreme circumstances" warranting such expungement of Mr. Steelwright's court record. Mr. Steelwright's law-abiding life, while commendable, does not warrant expungement.Id. at 574.
In United States v. Wiley, 89 F. Supp.2d 909 (S.D. Ohio 1999), the court considered an application for expungement from a defendant convicted of mail fraud. The court noted that requests for expungement of valid convictions had uniformly been denied. Id. at 910 (citingRobinson, 1996 U.S. App. LEXIS 8245, at *5) However, the court found that, at least in the Sixth Circuit, there was no per se rule against it, id. at 911 (citing Robinson, 1996 U.S. App. LEXIS 8245, at *2), and that such relief could be granted when warranted by "extraordinary or extreme circumstances." Id. at 912.
Wiley argued that he had committed his offense while suffering from severe depression, that he was married with a small child to support, and that his conviction was interfering with his efforts to obtain a good job with benefits. Id. at 909-10. Nevertheless, the court denied the request.
In the present case, the validity of the Defendant's 1992 conviction has not been challenged, and the Court perceives no extraordinary circumstances justifying expungement. Although the Court is genuinely (and without reservation) sympathetic to this Defendant's plight, particularly in view of his having turned his life around and the alleged medical reasons behind his commission of the offense, his current hardship is a natural and predictable consequence of his legitimate felony conviction. As such, the Court has difficulty concluding that the Defendant's hardship outweighs the government's long-recognized interest in maintaining complete criminal records. The preservation of such records helps to promote effective law enforcement. Such records also help to meet the "compelling public need for an effective and workable criminal identification procedure." Schnitzer, 567 F.2d at 539; United States v. Johnson, 714 F. Supp. 522, 524 (S.D. Fla. 1989). In short, the present record is devoid of the extraordinary or extreme circumstances that other courts have found sufficient to justify expungement. Indeed, if the Defendant's harm justified expungement, most individuals convicted of felonies would be entitled to the same remedy. Only in extraordinary cases will a felony conviction not limit prospective employment opportunities.Id. at 912 (footnote omitted).
In Cupeta v. United States, No. 98-171, 1999 U.S. Dist. LEXIS 14672, at *1 (E.D.N.Y. Aug. 16, 1999), the court considered the defendant's request to expunge his 1970 conviction for conspiring to derail a Long Island Railroad train by use of a pipebomb. The court concluded that it was authorized to expunge but declined to do so, stating:
Petitioner desires to wipe clean his criminal past in order, among other things, to acquire a firearm. This court must balance his expressed interests against the public's right to have law enforcement officials perform their necessary duties based on accurate and complete information. If this court were to grant Cupeta the relief requested, then federal authorities, when contacted by their state counterparts regarding Cupeta's qualifications for gun ownership, would be required to provide no information about petitioner's serious and life-threatening 1970 conviction. Similarly, Cupeta could legally reply in the negative to any and all questions concerning his former conviction. Such a result exacts too high a public cost. While Cupeta remains free to urge state authorities to discount his twenty-nine year old conviction and to allow him to acquire a gun, this court declines to assist him achieve his goal through "judicially mandated prevarication." United States v. Doe, 36 F. Supp.2d 143, 144 (S.D.N.Y. 1999).Id. at *4-5 (citation omitted).
In the Seventh Circuit there appears to be no bar to the expungement of a valid conviction. The Janik court had the opportunity to impose such a prohibition but declined to do so. Further, the balancing test enunciated in Diamond and reiterated in Janik strongly suggests that courts may expunge valid convictions. Under the balancing test, courts evaluating requests for expungement must consider a variety of factors, only one of which is the validity of the conviction.
Further, for a variety of policy reasons the authority to expunge should not be based on the outcome of a case. First, a court's inherent authority to manage its own records and "do complete justice in the cases before it," Bohr, 406 F. Supp. at 1219, is not limited to acquittals, dismissals and overturned convictions. Courts possess ancillary jurisdiction in all criminal cases regardless of the result.
Second, to distinguish between expungement requests solely on the disposition of cases is arbitrary because dispositions only imperfectly reflect culpability. For example, defendants whose convictions have been reversed or who have been unlawfully arrested may not be innocent. Further, prosecutors may dismiss cases for reasons other than a defendant's lack of culpability.
Third, the expungement of a valid conviction does not diminish the powers of Congress or the executive branch. Expungement does not nullify a statute, undo a prosecution or relieve a defendant from punishment. Rather, it exempts defendants only from certain consequences that, by definition, are ancillary to the penalties specified by law.
Finally, the expungement of a federal conviction by a federal court does not infringe on the authority of states to regulate professions. This is so because federal courts, like their state counterparts, may manage their own judicial affairs and are fully competent to assess the public interest in maintaining records. Similarly, when a state court expunges a sentence pursuant to a statute such as Wis. Stat. § 973.015, no significant federal interest is in play. The courts of both sovereignties are entitled to assess the significance of their own records.
Under U.S.S.G. § 4A1.2 (j), expunged convictions may not be included in a defendant's criminal history score.
Thus, I conclude that I am authorized to expunge valid convictions as well as the records of cases resulting in other dispositions. I now turn to the question of how to determine when expungement is appropriate and to consideration of defendant's request.
C. Discussion and Application of Balancing Test
Under the balancing test, I may expunge records if the dangers of unwarranted adverse consequences to the applicant outweigh the public interest in maintenance of the records. Janik, 10 F.3d at 472. On the applicant's side of the balancing test the court should consider the nature and severity of the adverse consequences alleged, whether such consequences are truly unwarranted, the nature of the record at issue and the character of the applicant. Against this must be weighed the public interest in effective law enforcement and in access to the courts and court records.
The adverse consequences requirement means that an applicant must demonstrate tangible harm due to the maintenance of the record. The record might, for example, interfere with an applicant's being able to find appropriate employment, Diamond, 619 F.2d at 499, or it might cause harm to his reputation, Bohr, 406 F. Supp. at 1220. Other possible adverse consequences might include deportation or the denial of naturalization; the loss of the right to hold public office, vote or obtain certain licenses; or significant and disproportionate harm to a person's emotional well-being.
A more difficult question is what adverse consequences should be considered unwarranted rather than the natural consequences of a criminal act. A number of factors are potentially relevant to this issue. One of the most important is the gravity of the offense. The more serious the offense, the harder it will be to show that the resultant harm is undeserved. Also relevant is whether there is a connection between the offense and the potential adverse consequence. It would not be an unwarranted consequence, for example, for a convicted child molester to be unable to find employment working with children or for a corrupt public official to suffer reputational harm.
The applicant's character at the time of the expungement request is also a significant factor. If a court has strong reason to believe that an applicant will not reoffend, 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.
Assuming that there are unwarranted adverse consequences, such consequences must be weighed against the public interest in maintenance of the records. Janik, 10 F.3d at 72. Perhaps the most important such interest is whether maintenance of the record is necessary to protect the public. Thus, where a court believes that an applicant for expungement may reoffend, the public interest in maintaining the record will likely never be outweighed. Courts should not expunge if the result would be to expose the unwary to future predation or loss.
However, in all cases there will be some public interest in maintaining records. This is so because the public's right of access to court proceedings and documents is well established. See In Re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (addressing the issue of sealing court records). This right of access allows for public scrutiny of the courts and "serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding." Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). This presumption of access is rebuttable only when "suppression is necessary to preserve `higher values' and when the suppression is `narrowly tailored' to serve those interests." In Re Associated Press, 162 F.3d at 506 (quoting Grove Fresh, 24 F.3d at 897).
In the present case, the applicant emphasizes his age, mental condition, absence of a prior record and history of service to the United States. These factors enabled him to make a strong case for leniency in sentencing. However, because his arguments look backward rather than toward the future, they are less compelling with respect to expungement.
Defendant has not shown that in the absence of expungement he will suffer adverse consequences, much less unwarranted adverse consequences. He does not argue that the conviction will affect his current job or impact on future employment opportunities. Nor has he demonstrated that expungement will protect him against a loss of reputation or future emotional suffering. I do not doubt that the defendant is ashamed of his conduct. However, he is being treated for the disorders that precipitated the offense. It is thus difficult to see what additional adverse consequences he will suffer if his conviction is not expunged.
I note that in Wisconsin it is unlawful to discriminate in employment on the basis of a conviction record unless the conviction is substantially related to the job. Wis. Stat. § 111.321.
Further, because of the unusual nature of the offense (with its connection to terrorism, the history of United States relations with Iran and the government's response to threats), the public interest in maintaining the case record is probably greater than in the typical case. This is true even though there is little likelihood that the applicant will reoffend.
Therefore, although defendant is a sympathetic figure, he has not shown that in the absence of expungement he will suffer adverse consequences that outweigh the public interest in maintenance of the case record.
III. CONCLUSION
THEREFORE, IT IS HEREBY ORDERED THAT defendant's request for expungement is DENIED.