U.S. v. Carson

• Decision Date: 15 September 2004
• Docket Number: No. 304MC19J99TEM.,304MC19J99TEM.
• Citation: 366 F.Supp.2d 1151
• Parties: UNITED STATES of America v. Drelton CARSON.
• Court: U.S. District Court — Middle District of Florida

366 F.Supp.2d 1151

UNITED STATES of America v. Drelton CARSON.

No. 304MC19J99TEM.

United States District Court, M.D. Florida, Jacksonville Division.

September 15, 2004.

Frank Merrill Talbot, II, U.S. Attorney's Office, Middle District of Florida, Jacksonville, FL, for United States of America.

Drelton Carson, Columbia, SC, pro se.

ORDER

CORRIGAN, District Judge.

This case is before the Court on defendant's Motion to Expunge Arrest Record (Doc. 1) to which the government responded in opposition (Docs. 2, 3). The undersigned referred the matter to the assigned United States Magistrate Judge who conducted a hearing and prepared a Report and Recommendation recommending that the motion be denied. See Doc. 9. No objections were filed and the time in which to do so has now passed.

Accordingly, upon independent review of the file and for the reasons stated in the Report and Recommendation issued by the Magistrate Judge (Doc. 9), it is hereby

ORDERED:

1. The Report and Recommendation (Doc. 9) of the Magistrate Judge is ADOPTED in full as the opinion of the Court.

2. Defendant's Motion to Expunge Arrest Record (Doc. 1) is DENIED.

3. The Clerk is directed to close the file.

REPORT AND RECOMMENDATION¹

MORRIS, United States Magistrate Judge.

The Court has before it a Motion to Expunge Arrest Record (Doc. # 1, Motion) to which the United States has responded in opposition (Docs. # 2, # 3). The matter was referred to this Court (Doc. # 5) for consideration and issuance of a Report and Recommendation. Carson did not provide any details in his motion, nor did he include a memorandum of law in support of the relief requested. A hearing on the Motion was held on June 29, 2004.² The United States appeared in person at the motion hearing, while Carson was permitted to appear telephonically because he resides out of state.

Facts:

Drelton Carson was arrested on September 23, 2003, at the United States Courthouse in Jacksonville, FL. A complaint was filed charging that Carson "knowingly possessed or caused to be present a firearm in a Federal court facility" in violation of Title 18 U.S.C. § 930(e)(1). The affidavit accompanying the complaint stated that Court Security Officers recovered a .38 caliber Smith & Wesson firearm from Carson's briefcase as Carson attempted to pass through the security checkpoint at the courthouse main entrance.

On motion of the United States, the complaint (in United States v. Drelton Carson, Crim. Case No. 3:03-m-0273-MMH) was dismissed on October 10, 2003. See Docs. # 6, # 9 in Case No. 3:03-m-0273-MMH.

At the hearing on the instant motion, the assistant United States attorney stated that after the firearm was discovered, Carson indicated he had forgotten it was in that briefcase. At the time of the incident, Carson was a law student and clerking for a lawyer from South Carolina and they had driven to Jacksonville for a court proceeding. Carson had a South Carolina permit to carry a firearm. Carson stated³ that he obtained the permit to carry the firearm because his family operates a small business and occasionally has a large amount of cash on hand to meet a payroll. Carson stated he thought that the firearm was in a black travel bag in the trunk of the car, rather than in the black briefcase where it was found.

The United States investigated Carson's background, received information from acquaintances, and found no reason to dispute Carson's claim that he had forgotten the firearm was in the briefcase.

Carson filed his Motion to Expunge Arrest Record on March 29, 2004, in the original criminal case which had been closed. The Court ordered the matter referred to a new miscellaneous file based on the affirmative relief sought (Doc. # 4).

At the June 29, 2004 hearing, Carson stated that because he is a second-year law student at a law school in New York state, he is concerned the arrest could cause him difficulties with bar admission and other career goals.⁴ Carson mentioned an incident in which he recently had trouble getting into a federal prison for an interview with his employer's client because of the firearms possession charge. The prosecutor responded to Carson's stated concern by noting he had checked with the Federal Bureau of Investigation records center and found that the Marshal's office had not entered the dismissal of the charge in the record before Carson's prison visit, but that situation had been corrected prior to the motion hearing.

Analysis:

As noted earlier, Carson did not file a memorandum of law to support his request for expungement. His motion requested an order "expunging his arrest record from the National Crime Investigation Center (NCIC)⁵ record database and any and all relevant law enforcement agencies." Doc. # 1. He did not specifically mention the court file itself when making his request to expunge the records related to the September 23, 2003 arrest.

There is no specific constitutional or general statutory right to expungement. Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699-700 (5th Cir.1997), cert. denied 523 U.S. 1077, 118 S.Ct. 1523, 140 L.Ed.2d 675 (1998).⁶ There is, however, substantial case law, generally not favorable to Carson.

In examining the case law, it is apparent that the circuit courts allow expungement of records, if at all, only in cases involving exceptional circumstances. Some circuits have found that courts have inherent equitable power to consider expungement. See, e.g., Geary v. United States, 901 F.2d 679, 680 (8th Cir.1990). Other circuits have found that courts have ancillary jurisdiction related to the underlying criminal matter to consider a request for expungement. See, e.g., United States v. Schnitzer, 567 F.2d 536 (2d Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978).

The Ninth Circuit has held that district courts possess ancillary jurisdiction; however, it rejected an argument that the court may use that power for equitable considerations, finding that the ancillary jurisdiction would be limited to expunging the record of an unlawful arrest or conviction, or to correct a clerical error. United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000)(although the case concerned a Youth Corrections Act ("YCA") sentence imposed 26 years previously, the court also considered whether it had general equitable power to expunge after rejecting the YCA claim).

The Seventh Circuit has held that courts have no jurisdiction to order expungement of executive branch records⁷ of an indictment and conviction, even after the conviction was overturned on appeal for violation of the Speedy Trial Act and the case was subsequently dismissed with prejudice. United States v. Janik, 10 F.3d 470, 472 (7th Cir.1993). The court distinguished the request for executive branch records from judicial or court records, and applied a balancing test as to the expunction of judicial records: "if the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate." Id. at 472, Diamond v. United States, 649 F.2d 496, 499 (7th Cir.1981). Applying that test to the defendant, the court found the defendant's fear of hiring and promotion rejections because of the indictment was not sufficient to outweigh the public interest in maintaining the records. Janik, 10 F.3d at 472-73.

The Court has not found any Eleventh Circuit published opinions on expungement in general (a YCA case is discussed, infra); however, the Fifth Circuit prior to its 1981 split held that "the Court's privilege to expunge matters of public record is one of exceedingly narrow scope." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.1972).⁸ In that case, a Duval County school employee who accidentally fired a weapon he had carried to a school was convicted in state court of discharge of a firearm. The federal district court reversed the conviction on a right-to-counsel issue and ordered all public records expunged. The Fifth Circuit reversed the part of the decision concerning expungement, stating: "The judicial editing of history is likely to produce a greater harm than that sought to be corrected." Id. at 1085. Previously, the Fifth Circuit had ordered expungement in a civil rights/voting rights case in which state officials had intentionally arrested blacks to prevent them from voting. United States v. McLeod, 385 F.2d 734, 750 (5th Cir.1967). Thus the expungement was used as a remedial measure for the state officials' misconduct.

The Fifth Circuit has continued to follow Rogers and McLeod. In Sealed Appellant, 130 F.3d at 699, the court held that in order to have standing a party seeking expungement against executive agencies "must assert an affirmative rights violation by the executive actors holding the records of the overturned conviction." Otherwise, "The President, not the district court, runs the executive branch -and it is he who decides how that branch will function." Id. The court found no constitutional basis for a right to expungement, thus unless there is a specific rights violation (or a specifically delineated statutory right), the executive branch is left to decide how to handle its own records.

Even in the circuits that have found ancillary jurisdiction or inherent equitable power to order expungement, relief usually is granted only in "extreme circumstances." Schnitzer, supra, 567 F.2d at 539-540. The court in Schnitzer noted that in determining whether those circumstances exist, other courts have balanced the "equities between the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties." Id. The Schnitzer court further found retaining and preserving arrest records serves an important law enforcement function.⁹ Even though arrest records can have a deleterious effect on citizens, the power to expunge should be used narrowly, not for each case ending in acquittal, but should be "reserved...