US v. Van Wagner

• Decision Date: 10 October 1990
• Docket Number: Crim. No. 89-184-A (08).
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Paul VAN WAGNER.

746 F. Supp. 619

UNITED STATES of America v. Paul VAN WAGNER.

Crim. No. 89-184-A (08).

United States District Court, E.D. Virginia, Alexandria Division.

October 10, 1990.

Liam O'Grady, Asst. U.S. Atty., Alexandria, Va., for U.S.

Peter D. Greenspun, Klein & Greenspun, Fairfax, Va., for Paul Van Wagner.

MEMORANDUM OPINION

ELLIS, District Judge.

I.

When should federal courts exercise their equitable powers to order expungement of an arrest record? This is the seldom litigated but important question presented here. More specifically, the question presented is whether the record of an arrest should be expunged where the person arrested is completely innocent of any crime and suffers significant adverse consequences as a result of the arrest record. For the reasons that follow, the Court concludes that this is an appropriate case for the exercise of its equitable power to expunge an arrest record.

II.

The pertinent facts are undisputed. A lengthy government investigation uncovered a decade-long multi-kilogram drug distribution conspiracy operating in the Washington, D.C. metropolitan area. As a result of this investigation, a grand jury returned a 78 count indictment, charging 16 persons, including Paul Van Wagner and his brother George, with various drug trafficking and money laundering offenses. Specifically, Paul Van Wagner was charged with conspiracy to possess and distribute in excess of five (5) kilograms of cocaine, in violation of 21 U.S.C. § 846, conspiracy to launder money, in violation of 18 U.S.C. § 371, and four counts of money laundering, in violation of 18 U.S.C. § 1956. Van Wagner was arrested following the return of the indictment. Not long thereafter, the government dropped all charges against Van Wagner, having concluded he was in fact innocent.¹ It is the government's position, not contested by Van Wagner, that there was probable cause to arrest defendant in connection with the money laundering scheme and that the arrest was not unlawful on this ground. At the same time, however, the government now believes that defendant is completely innocent of all the charges. Moreover, the government concedes Van Wagner's claim that he has suffered, and will likely continue to suffer, real and permanent economic harm as a result of the arrest record.

This matter came before the Court on Van Wagner's Motion for an Order of Expungement and Sealing of all Records of Arrest, Fingerprinting, or Proceedings. At the hearing, the government seemed to support the motion. Yet no formal Department of Justice position was presented on the matter. Noting this, the Court took the matter under advisement and gave the government an opportunity to seek formal Department of Justice concurrence in the motion at bar. Thereafter, the government advised the Court in timely fashion that the Department of Justice would not concur in light of its policy that expungement should be vigorously opposed "as long as no constitutional violations occurred or the arrest was not the result of an unlawful police action...." Government brief at 1.² Even so, the government's response "asks this Court to take notice of the extreme circumstances of hardship in existence in this case ... and ... to use its equitable powers to grant or deny the motion for expungement."

III.

"In the absence of a federal statutory claim ... the remedy of expungement invokes a federal court's equitable jurisdiction." Schwab v. Gallas, 724 F.Supp. 509, 510 (N.D.Ohio 1989). It is, therefore, "within the inherent equitable powers of a federal court to order the expungement of a record in an appropriate case." United States v. Doe, 556 F.2d 391, 393 (6th Cir.1977); see also United States v. McLeod, 385 F.2d 734, 750 (5th Cir.1967); United States v. Singleton, 442 F.Supp. 722, 723 (S.D.Tex.1977). In general, courts have invoked this power only in cases involving "either a lack of probable cause coupled with special circumstances, flagrant violations of the Constitution, or other unusual and extraordinary circumstances." Doe v. Webster, 606 F.2d 1226, 1230 (D.C.Cir.1979) (citations omitted) (footnotes omitted). Thus, the decision to expunge turns on whether "serious governmental misbehavior leading to the arrest, or unusually substantial harm to the defendant not in any way attributable to him, outweighs the government's need for a record of the arrest." Doe v. Webster, 606 F.2d at 1231 (footnote omitted); see also Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir.1977), cert. denied 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978); Woodall v. Pettibone, 465 F.2d 49, 52-53 (4th Cir.1972), cert. denied 413 U.S. 922, 93 S.Ct. 3054, 37 L.Ed.2d 1044 (1973); Kowall v. United States, 53 F.R.D. 211, 214 (W.D. Mich.1971); Wheeler v. Goodman, 306 F.Supp. 58, 65-66 (W.D.N.C.1969), vacated on other grounds, 401 U.S. 987, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971). Put another way, expungement is appropriate where "the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records." Diamond v. United States, 649 F.2d 496, 499 (7th Cir.1981) (footnote omitted). In the case at bar, the Court finds that this balance weighs decidedly in favor of Van Wagner: The severe adverse consequences to him substantially outweigh the public interest in maintaining the record of his arrest. Expungement is therefore appropriate.

First, there is no legitimate public interest in maintaining a record of Van Wagner's arrest. He was arrested because authorities erroneously thought he was a part of a vast and intricate drug conspiracy ongoing within the Northern Virginia area. Because of the nature of the government's investigation of this matter, conspiracy members were not approached prior to the indictment. Prior to the indictment, therefore, the government had no information from the conspirators concerning Van Wagner's involvement or non-involvement in the conspiracy. After the indictment, however, a number of the conspirators cooperated with the government; they confirmed, individually and collectively, Van Wagner's innocence. This was further confirmed by the evidence adduced in the lengthy trial of those conspirators who pled not guilty. Not once in more than eight days of trial involving more than 40 witnesses was Van Wagner implicated in any way in the conspiracy. The government is satisfied he is innocent. Given this, it follows that no legitimate public purpose is served by the preservation of Van Wagner's arrest record, for it contains no information about him likely to be useful in the future. In the expungement balance, therefore, this side of the scales carries little, if any, weight.

The other side of the scales tells a different story. The government concedes, based on Van Wagner's submissions, that the arrest record has "caused Van Wagner real and permanent economic damage." Van Wagner, a young, aspiring Washington businessman, has lost his ability, it appears, to secure bank loans and city government contracts as a result of his arrest record. And this is true despite the fact that all charges against him were dismissed. These severe consequences satisfy the requirement that expungement only be invoked in "extreme" or "extraordinary" circumstances. See United States v. Friesen, 853 F.2d 816 (10th Cir.1988) (trial court cannot expunge absent a factual showing of unusual or extreme circumstances); Reyes v. Supervisor of Drug Enforcement Admin., 647 F.Supp. 1509, 1513 (D.P.R.1986) (power to expunge is "a narrow one ... reserved for the unusual or extreme case"), affirmed in part, vacated in part on other grounds, 834 F.2d 1093 (1st Cir.1987); Coles v. Levine, 561 F.Supp. 146, 153 (D.Md.1983), affirmed 725 F.2d 674 (4th Cir.1984) (power to expunge "is one of `exceedingly narrow scope' ... to be reserved for extreme cases ... and is not to be used routinely") (quoting Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972) (citations omitted). The Court notes, however, that what is extreme in this case is not the economic hardship per se³ caused by Van Wagner's arrest record. Rather, the compelling unfairness justifying expungement here is that a wholly innocent individual, mistakenly arrested and indicted, but supposedly presumed innocent of all charges, is nonetheless suffering adverse consequences no different from those he would have endured had he in fact been charged, arrested and convicted of a crime.

These facts distinguish this case from those cases where expungement was denied to defendants who were convicted and then pardoned or where the defendant is ultimately not prosecuted or convicted, but the government refuses to concede her or his innocence. See, e.g., United States v. Noonan, 906 F.2d 952 (3d Cir.1990) (expungement denied where defendant received presidential pardon); United States v. Scott, 793 F.2d 117 (5th Cir.1986) (expungement denied where defendant was validly convicted, yet received a suspended prison sentence and served only a period of supervised probation); 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) (expungement denied where government refused to concede defendant's innocence); see also, Diamond v. United States, 649 F.2d 496, 498 (7th Cir. 1981) (distinguishing in expungement context between "an acquittal after a full trial" and "a prosecution aborted at the Government's request"). In those cases, the defendant's innocence was not conceded, as it is here. Expungement in such cases, as the Fifth Circuit noted, would give the "defendant more relief than if he had been acquitted." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.1972). By contrast, the expungement remedy applied in the instant case gives the relief justice requires: It remedies a government mistake, one made in good faith and without constitutional...