Vargas v. United States of America
Filing
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MEMORANDUM & ORDER, Petitioner has failed to provide a sufficient basis for expungement. The Court denies Petitioner's 1 motion to expunge without prejudice to a future application should his criminal record give rise to "extreme circumstances." ORDERED by Judge Margo K. Brodie, on 8/4/2017. C/mailed. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JEFFREY VARGAS,
Petitioner,
MEMORANDUM & ORDER
17-MC-809 (MKB)
v.
UNITED STATES OF AMERICA,
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On March 21, 2017, Petitioner Jeffrey Vargas, proceeding pro se, moved to seal and/or
expunge his criminal record. (Pet’r Mot. to Expunge (“Pet’r Mot.”), Docket Entry No. 1.)
Respondent the United States of America opposed the motion. (Gov. Opp’n to Pet’r Mot. to
Expunge (“Gov. Opp’n”), Docket Entry No. 4.) For the reasons set forth below, the Court denies
Petitioner’s motion.
I.
Background
On or about January 4, 2007, Petitioner was arrested on charges for conspiracy to import
narcotics into the United States in violation of 21 U.S.C. § 963. (Compl., United States v.
Vargas, No. 06-MJ-1244, (E.D.N.Y. dismissed July 6, 2007), Docket Entry No. 1; Arrest
Warrant, Vargas, No. 06-MJ-1244, Docket Entry No. 2.) According to the criminal Complaint,
Petitioner was arrested for coordinating a courier’s transportation of 832.2 grams of narcotics
into the United States through John F. Kennedy Airport in Queens, New York. (See generally
Compl., No. 06-MJ-1244.)
On July 6, 2007, then-Magistrate Judge Joan M. Azrack dismissed the charges against
Petitioner without prejudice. (Order dated July 6, 2007, No. 06-MJ-1244, Docket Entry No. 19.)
Judge Azrack did not specify the basis for dismissing the charges. (Id.)
II. Discussion
a.
Standard of review
The Attorney General is required to obtain and preserve criminal records including arrest
records pursuant to 28 U.S.C. § 534(a). Although no federal statute provides for the
expungement of an arrest record, a district court may use its inherent equitable powers to order
expungement of arrest records.1 See United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.
1977); see also Mullen v. United States, No. 12-MC-724, 2016 WL 1089261, at *1 (E.D.N.Y.
Mar. 18, 2016) (citing Schnitzer, 567 F.2d at 539). Maintaining arrest records “serves the
important function of promoting effective law enforcement.” Schnitzer, 567 F.2d at 539.
Expungement of a criminal record is usually only granted in “extreme circumstances.”
Id. (quoting United States v. Rosen, 343 F. Supp. 804, 807 (S.D.N.Y. 1972)). Courts balance
“the individual’s privacy rights and law enforcement’s interest in maintaining criminal records”
to determine whether extreme circumstances exist. United States v. Schonsky, No. 05-CR-332,
2015 WL 2452550, at *1 (E.D.N.Y. May 21, 2015) (citing Schnitzer, 567 F.2d at 539–40). This
balancing requires courts to take into account “the harm that the maintenance of arrest records
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Courts apply the same narrow standard in analyzing motions to seal and motions to
expunge criminal records. See Fernandez v. United States, Nos. 09-MC-326, 98-CR-902, 2009
WL 2227140, at *1 n.2 (E.D.N.Y. July 24, 2009). The terms have been used interchangeably
when a request to seal or expunge is made. See, e.g., Peters v. United States, No. 13-MC-103,
2013 WL 3280880, at *1 n.1 (E.D.N.Y. June 27, 2013); Fernandez, 2009 WL 2227140, at *1. In
addition, courts have recognized that when a petitioner requests expungement, he or she is
essentially asking the court to destroy or seal the records of arrest or conviction. United States v.
Rowlands, 451 F.3d 173, 176 (3d Cir. 2006) (citing United States v. Crowell, 374 F.3d 790, 792
(9th Cir. 2004)).
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can cause citizens,” Schnitzer, 567 F.2d at 539, the “compelling public need for an effective and
workable criminal identification procedure” and should give considerable weight to the
government’s overall need to maintain a system of records. Schnitzer, 567 F.2d at 539, 540 n.6
(citation omitted).
Examples of extreme circumstances include: (1) mass arrests that render judicial
determination of probable cause impossible; (2) arrests where the sole purpose was to harass
civil rights workers; (3) the misuse of police records to the detriment of the defendant; and
(4) arrests based on a statute that was later declared unconstitutional. See Schnitzer, 567 F.2d at
540 (citations omitted).
Even when an individual is acquitted of charges or a criminal complaint is dismissed
without prejudice, a petitioner must demonstrate extraordinary circumstances or imminent harm
beyond the termination of the criminal proceeding in order to obtain an expungement of his or
her record. See, e.g., In re Farkas, 783 F. Supp. 102, 103 (E.D.N.Y. 1992) (expungement
“should not be granted routinely after an acquittal or the dismissal of charges, but should be
reserved for extreme cases of government misconduct”); United States v. Feret, No. 05-MJ-75,
2007 WL 2262867, at *1 (E.D.N.Y. Aug. 3, 2007) (denying expungement after a criminal
complaint was dismissed without prejudice because the petitioner did not face harsh, unique or
extreme circumstances as a result of the arrest record). The need to explain the circumstances
surrounding an arrest to an employer does not fall “within the narrow bounds of the class of
cases where expungement has been declared appropriate.” Schnitzer, 567 F.2d at 540; In re
Farkas, 783 F. Supp. at 103–104 (denying expungement when the petitioner asked the court to
consider the effect his twenty-year-old arrest record would have on his current employment as
vice president of a prestigious securities firm even though the charges against the petitioner were
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dismissed because laboratory tests revealed that petitioner had not been in possession of a
controlled substance as initially suspected); United States v. Grant, No. 94-CR-18, 2008 WL
2039309, at *1–3 (E.D.N.Y. May 9, 2008) (denying expungement where the petitioner’s criminal
record erroneously reflected charges for which she had been acquitted fourteen years prior and
she alleged that her inaccurate criminal record had affected her ability to obtain employment).
Recent decisions in this district have questioned this high standard, and in particular the
extent to which the standard fails to allow relief from the negative effect of a criminal record on
procuring employment. See, e.g., Atori v. United States, No. 14-MC-1038, 2016 WL 525469, at
*3 (E.D.N.Y. Feb. 8, 2016) (“The court is not without sympathy for [p]etitioner and the many
other individuals in similar circumstances who have paid their debt to society yet continue to
face collateral consequences of their convictions. Indeed, there is a growing awareness of the
extent to which criminal records continue to burden former defendants, far beyond the
conclusion of their court-imposed sentences. However, in light of the stringent standard set by
the Second Circuit in Schnitzer, and in the absence of legislation from Congress, the court is not
in a position to lift these burdens.” (citation omitted)); Stephenson v. United States, 139 F. Supp.
3d 566, 572 (E.D.N.Y. 2015) (“Criminal records are remarkably public and permanent, and their
effects are pernicious. A criminal sentence too often becomes ‘a lifetime of unemployment.’ It
is time for a change. . . . As a judiciary, it may be time to revisit the standard for granting
expungement and consider, based on what we know now, whether expungement should be
limited to only the most ‘exceptional’ cases.” (citations omitted)); Doe v. United States, 110
F. Supp. 3d 448, 457 (E.D.N.Y. 2015) (“The seemingly automatic refusals by judges to expunge
convictions when the inability to find employment is the ‘only’ ground for the application have
undervalued the critical role employment plays in re-entry” and is “out of step with public
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opinion.”) rev’d, 833 F.3d. 192 (2d Cir. 2016); Joefield v. United States, No. 13-MC-367, 2013
WL 3972650, at *4 (E.D.N.Y. Aug. 5, 2013) (“While lamenting this strict standard for
expungement, most courts nonetheless deny expungement requests.”); see also Michelle
Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply:” The Case for
Reforming Criminal Background Checks for Employment, National Employment Law Project,
(March 2011), http://www.nelp.org/content/uploads/2015/03/65_Million_Need_Not_Apply.pdf
(noting that despite the U.S. Equal Employment Opportunity Commission’s guidance to the
contrary, “a 2010 survey of employers indicated that over [thirty] percent consider an arrest that
did not lead to conviction to be at least ‘somewhat influential’ in a decision to withhold a job
offer” (citing Society for Human Resources Management, Background Checking: Conducting
Criminal Background Checks at 5 (Jan. 22, 2010))).
b.
Petitioner’s motion to expunge
Petitioner argues that he is entitled to expungement of his arrest record because he was
never charged in the case. (See Pet’r Mot. at 1.) The government argues that Petitioner “fails to
identify any actual harm or other extreme circumstances related to his arrest record.” (Gov.
Opp’n at 3.)
Petitioner is not entitled to expungement because, as the government argues, he fails to
identify any harm or other extreme circumstances. In balancing the equities in this case,
Petitioner’s argument that his arrest record should be expunged because he “was not charged in
the matter,” (see Pet’r Mot. at 1), absent any identified hardship resulting from the criminal
record or a substantiated claim of innocence, does not outweigh the government’s interest in
keeping criminal records in order to promote effective law enforcement. See Schnitzer, 567 F.2d
at 539–40; Mullen, 2016 WL 1089261, at *2–3 (denying expungement after a criminal complaint
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was dismissed without prejudice and without reference to the basis for dismissal because the
petitioner did not identify any harm or extreme circumstances); Peters v. United States, No. 13MC-103, 2013 WL 3280880, at *2 (E.D.N.Y. June 27, 2013) (denying expungement where the
petitioner failed to allege any harm as a result of her arrest record and the government did not
concede that her innocence was the basis for dismissing the charges without prejudice). Nor
does Petitioner allege that he was arrested without probable cause or that he is actually innocent
of the charged conduct. Accordingly, Petitioner has failed to provide a sufficient basis for
expungement.
III. Conclusion
For the foregoing reasons, the Court denies Petitioner’s motion to expunge without
prejudice to a future application should his criminal record give rise to “extreme circumstances.”
See, e.g., Sandy v. United States, No. 08-MC-306, 2008 WL 4865993, at *3 (E.D.N.Y. Nov. 7,
2008) (denying motion to expunge an arrest record “without prejudice” to a future application).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 4, 2017
Brooklyn, New York
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