Peters v. USA
Filing
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ORDER denying 1 Motion to Expunge. For the reasons stated in the attached Memorandum and Order, the petitioner's motion to expunge her arrest record is denied. The Clerk of the Court is directed to serve a copy of this Order upon pro se petitioner. The Clerk of the Court shall enter judgment and close the case. Ordered by Magistrate Judge Joan M. Azrack on 6/27/2013. (Minarcik, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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For Online Publication Only
ANNETTE PETERS,
Petitioner,
MEMORANDUM AND
ORDER
-against13–MC–103 (JMA)
UNITED STATES OF AMERICA,
Respondent.
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A P P E A R A N C E S:
Annette Peters
Pro Se Petitioner
David C. Pitluck
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
Attorney for Respondent
AZRACK, United States Magistrate Judge:
On February 19, 2013, pro se petitioner Annette Peters filed this motion seeking
to expunge or seal her arrest record. 1
For the reasons set forth below, petitioner’s motion is denied.
1
There is no practical difference between a request to seal and a request to expunge; courts analyze both under the
same standard. See Fernandez v. United States, Nos. 09–MC–326, 98–CR–902, 2009 WL 2227140, at *1 n.1
(E.D.N.Y. July 24, 2009) (collecting cases).
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BACKGROUND
Petitioner has not disputed the facts of her arrest as presented by the government. On
May 13, 2003, the Court issued an arrest warrant for petitioner. Gov’t Mem. of L. in Opp’n Mot.
to Expunge Criminal R. (“Gov’t Opp’n”) at 1, ECF No. 3; Order Issuing Arrest Warrant, United
States v. Ali et al., 03–MJ–765 (E.D.N.Y.), ECF No. 5. In the complaint supporting the arrest
warrant, the government alleged that about and between July 2002 and October 2002, the
petitioner knowingly and intentionally conspired with others to devise a scheme to defraud in
violation of 18 U.S.C. §§ 371 and 1343. Gov’t Opp’n at 1. In an affidavit supporting the arrest
warrant, the government alleged that petitioner participated in the fraudulent purchase and sale of
property in Brooklyn, New York.
Id.
On September 15, 2003, the Court granted the
government’s motion to dismiss the criminal complaint against the petitioner without prejudice.
Id.; Dismissal of Counts, 03–MJ–765, ECF No. 41.
Petitioner now seeks to have her arrest record expunged, claiming that she has “never
defrauded nor will [she] ever intentionally defraud anyone.” Pet’r’s Affirm at 2, ECF No. 1.
Petitioner explains that she and her husband initially sought to purchase a property in Brooklyn
but ultimately decided not to. Id. Petitioner cites personal reasons, mainly physical injuries and
mental issues, for her decision not to proceed with the purchase. Id. Further, petitioner claims
that although her husband requested the paperwork back from their mortgage broker, she did not
follow up with the broker when the paperwork was not returned. Id. Petitioner does not allege
that she has suffered any specific hardship resulting from her arrest record. Id.
On February 19, 2013, petitioner filed the instant motion.
Notice of Mot.
The
government filed its opposition on April 2, 2013. Gov’t Opp’n. Petitioner did not file a reply.
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DISCUSSION
A.
Standard
Pursuant to 28 U.S.C. § 534, the Attorney General is required to establish and maintain
arrest records. 2 Although no federal statute provides for the expungement of arrest records,
“expungement lies within the equitable discretion of the court.” United States v. Schnitzer, 567
F.2d 536, 539 (2d Cir. 1977).
However, “relief usually is granted only in ‘extreme
circumstances.’” Id. (quoting United States v. Rosen, 343 F. Supp. 804, 807 (S.D.N.Y. 1972)).
In determining whether extreme circumstances exist, “the government’s need to maintain arrest
records must be balanced against the harm that the maintenance of arrest records can cause
citizens.” Id.
Maintaining arrest records enables effective law enforcement and serves the “compelling
public need for an effective and workable criminal identification procedure.” Id. (quoting United
States v. Seasholtz, 376 F. Supp. 1288, 1290 (N.D. Okl. 1974)). Arrest records also serve public
information needs where appropriate.
Moss v. United States, No. 09–MC–495, 2011 WL
1706548, at *1 (E.D.N.Y. May 4, 2011) (citing United States v. Robinson, No. 04–CR–580,
2007 WL 2077732, at *1 (E.D.N.Y. July 18, 2007)).
At the same time, an arrest record can “create serious adverse consequences” for an
individual, “notwithstanding the ultimate disposition of the case.” Schnitzer, 567 F.2d at 539.
Courts, however, have consistently refused to expunge criminal records even where such harm
exists. See Robinson, 2007 WL 2077732, at *2 (“Courts have furthermore been clear that the
consequences attendant to possessing a criminal record, such as loss of financial or employment
2
Under 28 U.S.C. § 534 (a)(1) and (4), the Attorney General shall “acquire, collect, classify, and preserve
identification, criminal identification, crime and other records” and “exchange such records and information with,
and for the official use of, authorized officials of the Federal Government including the United States Sentencing
Commission, the States, including State sentencing commissions, Indian tribes, cities, and penal and other
institutions.”
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opportunities, do not fall within the narrow bounds where expungement has been declared
appropriate.”) (internal quotation marks and alterations omitted). For example, difficulty in
securing employment or obtaining a professional license does not warrant expungement. See
e.g., Schnitzer, 567 F.2d at 540 (affirming denial of motion to expunge where defendant claimed
difficulties in entering rabbinical profession); Moss, 2011 WL 1706548, at *3 (denying motion
to expunge arrest record where petitioner alleged she was barred from employment as home tutor
and substitute teacher as result of arrest record); Gardner v. United States, No. 10–MC–0159,
2010 WL 2292222, at *1–2 (E.D.N.Y. Apr. 26, 2010) (report and recommendation) (denying
motion to expunge where petitioner alleged that arrest record prevented him from obtaining
security license required for job) adopted by 2010 WL 2292398 (E.D.N.Y. June 3, 2010). Even
the threat of deportation does not necessarily warrant expungement. See e.g., Akwurah v. United
States, No. 99–MC–045, 1999 WL 390832 (E.D.N.Y. March 31, 1999) (denying motion to
expunge where petitioner claimed he would be deported, causing immeasurable financial harm to
his family, as result of arrest record).
Moreover, courts routinely deny motions to expunge arrest records “even where the
arrests at issue resulted in acquittals or even dismissal of charges.” United States v. Sherman,
782 F. Supp. 866, 868 (S.D.N.Y. 1991); see also Manoharan v. United States, No. 12–MC–68,
2012 WL 2872631, at *2 (E.D.N.Y. July 12, 2012) (“[C]ourts typically deny motions to expunge
arrest records of those not convicted of any crime.”). The government’s express concession of
an individual’s innocence, however, if coupled with hardship, can warrant the expunging of an
arrest record when charges have been dismissed. See United States v. Van Wagner, 746 F. Supp.
619, 621–22 (E.D. Va. 1990) (granting motion to expunge arrest record given “unmistakable
concession” by government of defendant’s innocence together with resulting economic
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detriment); cf. Schnitzer, 567 F.2d at 540 (denying expungement where mere dismissal of
indictment against defendant was not concession that defendant was innocent).
Nevertheless, the Second Circuit has found four extreme circumstances that warrant
expunging an arrest record: (1) where mass arrests rendered the judicial determination of
probable cause impossible; (2) where the sole purpose of the arrest was to harass civil rights
workers; (3) where the police misused the record to the defendant’s detriment; and (4) where the
arrest, though proper, was based on a statute later declared unconstitutional. Schnitzer, 567 F.2d
at 540.
B.
Application
In this case, petitioner argues that her arrest record should be expunged because “the
alligations [sic] brought against me was [sic] false.” Pet’r’s Affirm at 1. Petitioner further states
that “[she has] never defrauded nor will [she] ever intentionally defraud anyone.” Id. at 2.
Petitioner, however, fails to allege any harm as a result of her arrest record. Even if petitioner
had alleged some hardship, such an allegation would likely be insufficient to warrant
expungement absent extreme or harsh circumstances.
Although petitioner adamantly asserts her innocence, the government has not conceded
her innocence. Gov’t Opp’n at 5–6 (“The government moved to dismiss the complaint against
the petitioner without prejudice, but there is no evidence that it acknowledged that the petitioner
was innocent or that her arrest was in any way improper.”). Furthermore, none of the Second
Circuit’s four extreme circumstances warranting expungement are present here.
Accordingly, petitioner’s interest in expungement does not outweigh the government’s
interest in maintaining arrest records.
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CONCLUSION
For the foregoing reasons, petitioner’s motion to expunge her arrest record is denied.
The Clerk of the Court is directed to serve a copy of this order upon pro se petitioner. The Clerk
of the Court shall enter judgment and close the case.
Dated: June 27, 2013
Brooklyn, NY
/s/
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE
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