United States v. Harris

• Decision Date: 21 March 2012
• Docket Number: Case No. 03–1767M.
• Citation: 847 F.Supp.2d 828
• Parties: UNITED STATES of America v. Shawn W. HARRIS.
• Court: U.S. District Court — District of Maryland

847 F.Supp.2d 828

UNITED STATES of America

v.Shawn W. HARRIS.

Case No. 03–1767M.

United States District Court, D. Maryland.

March 21, 2012.

Hollis Raphael Weisman, Office of the U.S. Attorney, Greenbelt, MD, for Plaintiff.

OPINION AND ORDER OF COURT

VICTOR H. LAWS, III, United States Magistrate Judge.

This motion to expunge a federal misdemeanor conviction requires the Court to answer a key question of federal court jurisdiction: Does federal “ancillary jurisdiction” extend to a claim for expungement of a criminal conviction—not on grounds of any illegality of the arrest or conviction, or any constitutional infirmity of the statute on which the Defendant was convicted—but solely on equitable grounds? The federal Circuits are split on this issue, and even within this District the decisions, taken as a whole, are ambiguous on the point. Because I conclude, for the reasons set forth below, that jurisdiction to order expungement on purely equitable grounds is lacking, the Defendant's motion will be denied.¹

I.

On January 14, 2004, the Defendant, Shawn W. Harris, pled guilty to a single count of possession of a controlled substance in violation of 21 U.S.C. § 844. The offense took place on May 23, 2003, when the Defendant drove onto the property of the National Naval Medical Center, a federalreservation in Bethesda, Maryland. A plastic bag underneath the driver's seat contained a number of smaller bags of cocaine with a total weight of 32.29 grams. Following the guilty plea, on January 26, 2004, the Defendant was sentenced to two years of supervised probation and a $1,000 fine, among other conditions. Defendant complied with all conditions of his probation and completed his probationary term without incident.

On September 27, 2011, Defendant wrote a letter to the Court seeking to have his federal misdemeanor record expunged. The Defendant maintained that the cocaine conviction had served as a wake-up call, that he had turned his life around, and that he was now “the sort of person the expungement process was designed for”. In a letter dated October 5, 2011, Defendant wrote to the Court again, amplifying his claim for expungement. In his second letter Defendant asked for the Court's “forgiveness and consideration of how I have conducted myself as an upstanding citizen and quality person to this day”. He included some details concerning his work history and indicated that he had run into problems obtaining a security clearance in connection with certain federal employment. He attached some photographs and a resume detailing his work experience, education and skills.

Treating Defendant's letters as a motion for expungement, this Court then asked for, and received, briefs from both the U.S. Attorney's Office and the Federal Public Defender's Office (which had represented Defendant originally) on the expungement question. The memorandum from the Assistant Federal Public Defender maintained that, to properly evaluate the Defendant's request, the Court should hold a hearing and receive evidence as to the adverse consequences suffered by the Defendant as a result of his drug conviction. Accordingly, an evidentiary hearing on the Defendant's motion for expungement was held on March 9, 2012.

The key factual issue to be determined is the nature and extent of the impact of the Defendant's drug conviction on his job opportunities and specifically the impact thereof on his ability to obtain a work-related security clearance. The Court finds as follows: In addition to maintaining his own self-employed tax preparation business, since college graduation Defendant has worked as a contract employee for two federal agencies (HHS and the Department of Agriculture) and also at least three private employers (General Dynamics, U1st Accounting Service, and most recently Nobilis where he is involved in managing a large government contract involving deployment of a satellite). Despite his 2004 criminal conviction, Defendant appears to have maintained continuous employment.

The evidence as to the impact of the criminal conviction on Defendant's ability to obtain a security clearance is murkier. Defendant testified that he is unable to obtain a top-secret security clearance and that the lack of such a clearance poses problems for his career advancement—preventing him from certain work regarding international contracts at USDA, imperiling his work on the satellite contract with Nobilis, and preventing him from taking a position with the Agency for International Development (USAID) which was contingent on obtaining a security clearance. Where I find the evidence murky is in the Defendant's testimony about the “glass ceiling” that he feels he is bumping up against by not having the security clearance, his comments that he must constantly “dumb down his resume”, and that he is “90% sure” that he will be unable to continue working on the satellite project without obtaining the clearance. Such testimony leaves the Court unsure whether Defendant has ever applied for a security clearance, much less has been denied or has exhausted any appeals, or whether Defendant has been “pulling his punches” throughout his career, opting not to apply for the clearance in the knowledge that his drug conviction must be disclosed. On balance, I find it more probable than not that the Defendant has been unable and will be unable for the foreseeable future to obtain a security clearance and that this represents a significant impediment to the Defendant's ability to undertake or complete specific projects required by current and prospective employers, thus detrimentally impacting his career prospects.

II.

There is no applicable statute providing for expungement in a case like this.² While such a statute would confer federal question jurisdiction over this matter, in the absence thereof the only available jurisdictional basis is ancillary jurisdiction. Federal courts are courts of limited jurisdiction, and can only exercise the authority conferred by the Constitution or by statute. Federal jurisdiction “is not to be expanded by judicial decree”. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

Ancillary jurisdiction, or as it is sometimes called, “ancillary enforcement jurisdiction,” is the concept under which federal courts maintain jurisdiction over related proceedings that are technically separate from the claims or causes of action in the initial case that invoked federal subject matter jurisdiction. As explained in the leading treatise on federal practice and procedure:

Under this concept, a district court acquires jurisdiction of a case or controversy in its entirety, and, as an incident to the full disposition of the matter, may hear collateral proceedings when necessary to allow it to vindicate its role as a tribunal. As the Court said in 1994, ancillary jurisdiction of this type is necessary “to enable a court to function successfully, that is, to manage its proceeding, vindicate its authority, and effectuate its decrees”.

13 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper and Richard D. Freer, Federal Practice and Procedure, § 3523.2 at 213 (3d Ed. 2008) (footnote omitted).

Typical examples of such ancillary jurisdiction are the power reserved to the court to enjoin actions that would interfere with the court's orders, to enter restraining orders to preserve the status quo while claims are adjudicated, to enjoin actions elsewhere, to impose sanctions, and to order garnishment or other incidental proceeding. Id.,§ 3523.2 at 214–17.

With respect to expungement, the treatise continues:

One interesting issue is whether a district court that heard a criminal matter may exercise ancillary jurisdiction to entertain proceedings to expunge the criminal record. In limited circumstance, federal law expressly permits expungement, so ancillary jurisdiction is not necessary. When there is no such federal law, however, the courts clearly have ancillary jurisdiction to expunge records of unlawful convictions or arrests.

The courts disagree, however, on whether there is ancillary jurisdiction to entertain a proceeding to expunge based solely upon equitable considerations. For example, suppose a criminal defendant is acquitted at trial. He may wish to have the record of his arrest expunged based upon equitable considerations, such as damage to his reputation. In a 2007 case, the First Circuit held that there is no ancillary jurisdiction on such facts. According to the court, none of the recognized reasons for ancillary jurisdiction-noted above-was present in such a case. In so holding, the First Circuit joined the Third, Eighth, and Ninth Circuits in rejecting jurisdiction over expungement proceedings based upon equitable grounds. On the other hand, there is authority in the Second, Fourth, Seventh, Tenth, and District of Columbia Circuits upholding ancillary jurisdiction for expungement based upon equitable grounds.

Id.,§ 3523.2 at 217–18 (footnotes omitted). In the 2011 supplement, the authors of the treatise make clear that the Sixth Circuit has joined the mentioned circuits in rejecting ancillary jurisdiction over expungement proceeding, and they cite United States v. Mitchell, 683 F.Supp.2d 427, 430 (E.D.Va.2010) as conclusively distinguishing the Fourth Circuit decision mentioned in the main volume ³ and for persuasively concluding that ancillary jurisdiction does not give the court authority to expunge a conviction solely upon equitable grounds Id.,§ 3523.2 at 26 (2011 Supp.).

In Mitchell the United States District Court for the Eastern District of Virginia found that the Circuits were split on whether federal courts have the power to expunge criminal records and convictions solely on equitable grounds. Id., at 430–31. The court in Mitchell found, however, that many of the decisions upholding the exercise of such ancillary jurisdiction predated the Supreme Court's decision in Kokkonen. In Kokkonen, ...