US v. Janik, 81 CR 621.

• Decision Date: 26 October 1992
• Docket Number: No. 81 CR 621.,81 CR 621.
• Parties: UNITED STATES of America, Plaintiff, v. Mitchell S. JANIK, Defendant.
• Court: U.S. District Court — Northern District of Illinois

804 F. Supp. 1065

UNITED STATES of America, Plaintiff, v. Mitchell S. JANIK, Defendant.

No. 81 CR 621.

United States District Court, N.D. Illinois, E.D.

October 26, 1992.

Terry M. Kinney, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Kimberly A. Sutherland, Chicago, Ill., for defendant.

ORDER

NORGLE, District Judge.

Before the court is petitioner Mitchell S. Janik's ("Janik") motion for expungement of record of an eleven-year-old case. For the following reasons, the motion is denied.

FACTS

Originally arrested by local police, Janik's state charges were later dropped. On October 27, 1981 a federal grand jury indicted Janik, a deputy sheriff in Cook County, Illinois, for possessing two unregistered guns (a submachine gun and a sawed-off shotgun), in violation of Title 26, United States Code § 5861(d).

In deciding this motion, the court has considered the thorough review by the Seventh Circuit of the evidence at the bench trial on January 18, 1983 before Judge Susan Getzendanner, who found Janik guilty and sentenced him to eight months in prison for possession of the submachine gun, and sentenced him to five years probation and imposed a $2,000 fine for possession of the sawed-off shotgun.

Janik appealed his conviction and raised two issues: whether the proceedings violated the Speedy Trial Act, Title 18, United States Code § 3161 et seq., and whether the seizure of the guns violated the Fourth Amendment. The Seventh Circuit found no violation of the Fourth Amendment but did find a violation of the Speedy Trial Act. The court reversed Janik's conviction and remanded the case with instructions to determine whether Janik's case should be dismissed with or without prejudice as a sanction for the Speedy Trial Act violation. The Seventh Circuit directed the lower court to balance the fact that two years had passed since the arraignment with the following factors in favor of dismissing without prejudice: "the defendant never manifested any desire to see the proceeding move along any faster than it was; much of the delay was due to a clerical oversight ...; his offense was a grave one, punishable by a maximum prison sentence of ten years ... and he was found guilty of committing two such offenses." United States v. Janik, 723 F.2d 537, 546-47 (7th Cir.1983). The Seventh Circuit observed that there was enough evidence to convict Janik beyond a reasonable doubt of possessing an unregistered automatic weapon and an unregistered sawed-off shotgun, both capable of being operated. Janik, 723 F.2d at 549. The case was reassigned from Judge Getzendanner, and on June 21, 1984, Judge McMillen dismissed the case without prejudice. The defendant was not reindicted. Eight years later, the defendant filed this motion for expungement of records.

Janik prays that this court direct the United States and its agencies to expunge all records of indictment and court proceedings of Mitchell S. Janik together with all photographs, fingerprints, and all other records of identification, and for such other relief as this court deems fit. Janik asks this court alternatively to consider equitable relief short of expunction that would allow the United States to keep its records, but would not allow it to disseminate the records in a manner that destroys or dampens his opportunities for employment and economic advancement.

DISCUSSION

Petitioner's motion lacks any explanation of the jurisdictional basis for deciding the motion following dismissal by Judge McMillen of the indictment more than eight years ago. "Being a defendant in a criminal prosecution does not forever license litigation against the government...." Scruggs v. United States, 929 F.2d 305 (7th Cir.1991). The district court accordingly lacks jurisdiction to hear this matter as part of the criminal case after the case has been dismissed and closed. Id. at 306; Diamond v. United States, 649 F.2d 496 (7th Cir.1981).

Additionally, the Seventh Circuit has rejected the idea that jurisdiction can be based upon the "inherent" power of judges to order the executive branch to expunge records, and no statute authorizes expunction. Scruggs, 929 F.2d at 306; see also United States v. Scott, 793 F.2d 117 (5th Cir.1986) (court expressed "grave doubts" about whether district court has authority under Article III of the Constitution to order expungement as a form of relief). Accordingly, the court lacks jurisdiction to consider Janik's motion to direct the executive branch to expunge its records. The motion is, therefore, denied.

The government appropriately argues that even assuming for the sake of argument that this court retains jurisdiction, Janik's case does not present the extraordinary circumstances which might justify expunction. The court agrees. Courts which have considered expunction acknowledge that expungement is a very narrow power exercised only in "extraordinary circumstances." United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991). Cases in which courts have found "extraordinary circumstances" and have ordered expungement include:

mass arrests without probable cause, Sullivan v. Murphy, 478 F.2d 938, 968-73 (D.C.Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), arrests under statutes later held unconstitutional, Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971), and arrests found to have been for the purpose of harassment only, United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir. 1967).

Geary v. United States, 901 F.2d 679, 680 (8th Cir.1990).

Janik's situation is not akin to any of these circumstances. He was not part of a mass arrest; the statute under which he was arrested is still constitutional; his arrest was not for the purpose of harassment; the police did not misuse his records to his detriment; and finally, there is no claim of inaccuracy or alteration. In fact, as the government's response argues, Janik's case is similar to cases where the courts have refused to expunge records. See Smith, 940 F.2d at 396 (defendant had "otherwise clean background" and a good purpose for seeking expunction — to reenlist in the United States Army Reserves); United States v. Bagley, 899 F.2d 707 (8th Cir.) cert. denied, ___ U.S. ___, 111 S.Ct. 343, 112 L.Ed.2d 307 (1990). The Fifth Circuit has held that the district court could not expunge records under circumstances stronger than Janik's case: where the defendant's conviction was overturned on constitutional grounds. Rogers v. Slaughter, 469 F.2d 1084 (5th Cir.1972).

Courts must balance the government's need to maintain records to aid law enforcement with the harm to the individual of maintaining such records. The court in Doe v. Webster articulated the government's need:

The government does, however, have a legitimate need for maintaining criminal records in order to efficiently conduct future criminal investigations. Law enforcement authorities have an interest in knowing, for example, that a definite suspect in a crime under investigation had previously been arrested or convicted, especially if for a similar offense. Likewise, police investigators will be greatly assisted if they are able to check whether persons residing or having been observed at the sites of an offense involving a particular modus operandi had previously been arrested or convicted for an offense involving the same modus operandi.

Doe v. Webster, 606 F.2d 1226, 1243 (D.C.Cir.1979).

The government correctly argues that Janik fails to show any extreme or unusual factors in his case which could outweigh the government's need to maintain records. Having no other criminal record is not considered an extraordinary circumstance. See Smith, 940 F.2d at 395-96. Leading an exemplary life is not enough to grant expungement.

In addition, Janik fails to show any actual harm resulting from his record; he only "fears" that he might be rejected if he applies for certain jobs. In fact, he has been employed by the Illinois Department of Public Aid which indicates that he is not barred from civilian employment with local governments. Anticipated harm is not enough for expungement. See Smith, 940 F.2d at 396 (defendant feared he could not reenlist in the Army Reserve due to his record); see also Allen v. Webster, 742 F.2d 153 (4th Cir.1984) (the court affirmed the denial of expungement even where the defendant showed that he was actually harmed by his criminal record; he was rejected for federal employment).

In support of his motion for expungement, Janik cites Diamond v. United States, 649 F.2d 496 (7th Cir.1981). Diamond is no longer controlling after Scruggs. Diamond, like Scruggs was a civil suit asking the court to order expunction of records. The district court dismissed the complaint for failure to state a claim and the Seventh Circuit reversed holding that the defendant should be given an opportunity to prove why he was entitled to expunction. Procedurally, the present motion is brought under the original criminal case filed following the indictment in 1981.

Janik also argues that because the United States did not reindict him, he should be presumed innocent and granted expungement. Courts have rejected this argument. In Scruggs, the jury acquitted the defendant and the court refused to expunge this record stating that "acquittal does not establish the lack of probable cause; the prosecution's high burden of persuasion means that even some guilty persons will be found not guilty, and `probable cause' is a lower threshold than actual guilt." Scruggs, 929 F.2d at 307; see also Bagley, 899 F.2d at 708 (government did not concede innocence in dismissing the indictment); United States v. Schnitzer, 567 F.2d 536, 540 (2d Cir.1977) (in dismissing the indictment, the government does not concede the innocence of the defendant; prosecution believed that it could not...