Opinion
98-CR-786 (ILG)
December 4, 2002
MEMORANDUM AND ORDER
Syed Hasan appears before this Court and moves to expunge his criminal record. For the reasons below, this motion is denied.
On November 10, 1998, Mr. Hasan pleaded guilty to one count of violating 8 U.S.C. § 1306 (c), namely making fraudulent statements in connection with filing an application for registration of an alien. See United States v. Hasan, No. 98 CR 786 (E.D.N.Y. Nov. 10, 1998) (ILG). On February 9, 1999, this Court sentenced Mr. Hasan to 2 years probation, 100 hours of community service, a fine of $500, and a special assessment of $10.
Mr. Hasan now claims that he is entitled to have his criminal record expunged because the existence of a misdemeanor became a bar to his job search.
Although district courts are possessed of the inherent equitable power to order expungement of criminal records, the Second Circuit has long cautioned that the power to order expungement should be exercised with great caution. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977). "The determination of whether expungement is appropriate requires a case-by-case balancing of the defendant's interest in avoiding the harm the record causes against the government's interest in effective law enforcement which the preservation of criminal records furthers." United States v. McFadzean, No. 93 CR 25 (CSH), 1999 WL 993641, at *2 (S.D.N.Y. Oct. 29, 1999) (citing Schnitzer, 567 F.2d at 539). The Second Circuit has held that arrest records serve an "important function" and "help to meet the compelling public need for an effective and workable criminal identification procedure." Schnitzer, 567 F.2d at 539 (citation omitted); see also United States v. Rabadi, 889 F. Supp. 757, 759 (S.D.N.Y. 1995) ("The acquisition, preservation and dissemination of criminal records fulfills the compelling public need for an effective criminal identification procedure, thereby promoting effective law enforcement."); United States v. Morelli, No. 91 CR 639 (MHD), 1999 WL 459784, at *1 (S.D.N.Y. June 30, 1999) ("The policies underlying retention of criminal records encompass not only the immediate needs of law enforcement for identification and reference in future criminal proceedings, but also punishment and deterrence, as well as public informational needs, as appropriate.").
Generally expungement is reserved for cases in which an arrest was unconstitutional, an arrest was made for purposes of harassment (such as in the case of civil rights of workers), a determination of probable cause was impossible because arrests were made en masse, or the criminal records have been misused by the government. See Schnitzer, 567 F.2d at 540 see also Morelli, 1999 WL 459784, at *5 ("The remedy of expungement is limited to cases involving a charge that was later determined to be meritless or that was never adjudicated, or where there is proof of government misconduct, or where the law is declared invalid."). Indeed, there is some doubt as to whether expungement is appropriate for a valid conviction. See United States v. Doe, 36 F. Supp.2d 143, 144 (S.D.N.Y. 1999) ("While expunging a record may be an appropriate remedy where an arrest is unconstitutional, it does not seem appropriate where a conviction was valid when entered.") (citations omitted). As Judge Haight has noted,
expungement is an extreme, and rare remedy. It is not commonly granted even in cases in which the defendant was acquitted of the charges, much less where the defendant has been convicted by a jury or pleaded guilty, as here. "In the face of the public's compelling need to have an accurate criminal identification system, courts have rarely granted motions to expunge arrest records, let alone conviction records. This is true even where the arrests at issue resulted in acquittals or even dismissal of the charges."McFadzean, 1999 WL 993641, at *3 (quoting United States v. Sherman, 782 F. Supp. 866, 868 (S.D.N.Y. 1991)); see also United States v. Bryde, 914 F. Supp. 38, 39 (N.D.N.Y. 1996) ("courts rarely have granted motions to expunge arrest records and even more rarely have granted motions to expunge conviction records") (emphasis in original); Morelli, 1999 WL 459784, at *1 (the standard for expungement "developed principally, if not exclusively, to deal with expungement requests concerning records of arrests that did not lead to valid convictions").
Here, as in McFadzean, Mr. Hasan has not met the stringent standard needed to obtain expungement of his criminal record. He does not challenge the validity of his arrest, his guilty plea or his conviction. Mr. Hasan does not contend that the government based its arrest upon an unconstitutional statute, or that the government has misused the criminal records in any way, or even that he is innocent of the underlying offense. Instead, Mr. Hasan simply contends that he faces significant difficulties in locating employment because of his criminal record.
The Court is sympathetic to those difficulties, particularly to their effect on his ability to support himself. However, the law does not permit expungement based on such circumstances. Where the only alleged harm is to a movant's professional reputation or ease in finding employment, the expungement motion must be denied. See, e.g., In re Farkas, 783 F. Supp. 102, 103 (E.D.N.Y. 1992) (Glasser, J.) (denying expungement motion where harm alleged is potential adverse effect on employment); United States v. Aigle, 199 F. Supp.2d 5, 7 (E.D.N.Y. 2002) (Spatt, J.) (same).
For these reasons, Mr. Hasan's motion for expungement must be denied. Unfortunately for Mr. Hasan, if there is some force that will permit him to move on and put the lingering effects of his misdemeanor conviction behind him, it is not the law or the courts, but rather the willingness of an employer to display enough understanding and wisdom to recognize that movant has not only paid his debt to society but has excelled in the more challenging task of overcoming the past. While the law does not go so far as to erase the records of a lapse in judgment, neither does it envision that he will be forever branded as a pariah and forbidden from fully contributing to the fabric of society. As this Court has observed before, it is not the task of a district court to
substitute its own judgment for that of the NASD, of for that of the state bar examiners, the pharmacist licensing board, or any other body charged with maintaining the standards of a vocation. It is they who must evaluate the character and qualifications of potential and present members of their respective professions, in each case applying their own particular criteria to the facts before them.Farkas, 783 F. Supp. at 104. The same is true for potential employers. To merely pay lip service, however, to the tenet of "paying one's debt to society" and to continue to regard that debt as never to be absolved is socially self-defeating and morally wanting. Despite having found no basis upon which to grant the motion for expungement, this Court is nevertheless prompted to express the same hope that it did in Farkas, that prospective employers will not look askance upon Mr. Hasan, who has atoned for his misstep.
SO ORDERED.