Expungement of Criminal Records in Federal Courts

Broadly speaking, expungement may be of two types: 1) “legal”; or 2) “equitable.” Each is described below but with a focus on courts' equitable authority to expunge, since that type of expungement is likely to be the basis for a white-collar defendant's request to seal his criminal-justice records. We also discuss the power of courts to order expungement of executive-branch records, including those held by the FBI.

Cases Involving 'Legal Expungement'

Almost all courts have concluded that they have the power to expunge criminal records, including executive-branch records, where the defendant's arrest or indictment was unlawful or unconstitutional; when probable cause for those events was lacking; where there was government misconduct in obtaining the charge; or, as one court has said, where expungement is necessary “to preserve basic legal rights.” United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976). This type of expungement, which I'll call “legal expungement,” is the less controversial form of the remedy because even courts that take a limited view of their jurisdiction acknowledge their authority to expunge where an arrest or conviction is illegal. Thus, the authority of courts to seal records of an illegal arrest or indictment in a white-collar case appears well established.

Cases Involving 'Equitable Expungement'

A motion seeking equitable expungement requires a court to make an individualized assessment of whether, as a matter of fairness, a moving party's criminal-justice records should be publicly available. While some federal circuit courts have held that they have the power to grant such equitable relief, others have concluded that they do not. Compare, e.g., United States v. Schnitzer, 567 F.2d 536 (2d. Cir. 1977) (court has equitable authority to expunge) with United States v. Summers, 226 F.3d 1005 (9th Cir. 2000) (no authority to grant equitable expungement).

For those courts that believe they have authority to grant such relief, there is no single test for when equitable expungement is appropriate. The cases suggest that courts are sensitive to three factors when considering whether to exercise their equitable powers: 1) the propriety of the criminal charges and prosecution; 2) the immediacy of the reputational and professional harm that the
defendant will suffer if his record is not expunged; and 3) whether the defendant's professional peers are entitled to know about their colleague's criminal history. Just recently, a federal district judge in New York cautioned that the standard for equitable expungement is “extremely stringent.” Fernandez v. United States, 2009 U.S. Dist. LEXIS 63796, at *2 (E.D.N.Y. July 24, 2009).

In United States v. Lin, 513 F.2d 925 (10th Cir. 1975), the defendant sought expungement of his arrest record after having been acquitted of various securities-related offenses. In affirming the trial court's denial of relief, the Tenth Circuit said that there was no indication that the defendant had been subject to any “harassing action” carried out by law enforcement or prosecuting authorities. In particular, the circuit rejected the defendant's argument that expungement was appropriate because the district court refused even to charge the jury on an overwhelming majority of the counts in the indictment. Lin makes clear that an “acquittal, standing alone, is not in itself sufficient to warrant an expunction of an arrest record.” The Lin court also rejected as hypothetical the defendant's arguments that he would suffer future reputational and professional harm absent expungement. The Fourth Circuit reached a similar conclusion in United States v. Flowers, 389 F.3d 737, 740 (7th Cir. 2004), when it held that a mere “fear” that non-expungement will seriously limit the ability to find employment in one's field is a “speculative consequence that cannot outweigh the public interest in maintaining the accuracy of judicial records.”

In contrast, in Livingston v. United States Dep't of Justice, 759 F.2d 74 (D.C. Cir. 1985), the defendant persuaded the court that the presence on his record of an arrest for a murder for which he was never successfully indicted warranted remand to the district court to consider whether to grant expungement, even where there was no evidence of imminent or tangible reputational harm. The court found that simply having the “emotion-laden” word “murder” on one's record might justify relief. While clearly an unusual example, Livingston suggests that, for some courts, even potential harm to reputation can support an order of expungement.

When deciding these motions, courts also consider whether the defendant's professional peers have a right to know about their colleague's criminal history. In Schnitzer, 567 F.2d 536, the Second Circuit held that a rabbinical student who was indicted, but not ultimately prosecuted, for conspiracy to defraud a federal agency was not entitled to have his record expunged because he deserved to have to explain his criminal history to others. Relying on Schnitzer, a district judge in New York recently explained that “courts have nearly uniformly rejected adverse employment effects as grounds for expungement.” Fernandez, 2009 U.S. Dist. LEXIS 63796, at *2. However, in United States v. Bohr, 406 F. Supp 1218 (E.D. Wis. 1976), a district court ordered expungement of the criminal record of a lawyer indicted, but never prosecuted, for fraud, so that the lawyer could gain admission to the bar of another state. In contrast, where actual negative employment effects were shown, a judge ordered expungement. United States v. Doe, 935 F. Supp. 478 (S.D.N.Y. 1996). Thus, while courts generally have been reluctant to take employment effects into account when considering motions to expunge, in some cases those concerns have led to a grant of relief.

Equitable Expungement of Executive-Branch Records

Whether courts can expunge executive-branch records on equitable grounds has great practical significance because a prime target of an expungement motion will be records maintained by the FBI as part of the National Crime Information Center (NCIC), a computer system that contains comprehensive criminal-justice data and is available to law enforcement agencies nationwide.

One court emphasized the difference between judicial records, “over which the court has supervisory powers,” and law enforcement records, where the person seeking expungement must show “an affirmative rights violation by executive branch officers or agencies to justify the intrusion into the executive's affairs.” Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 697 (5th Cir. 1997). And another has said flatly that “federal courts are without jurisdiction to order an Executive Branch agency to expunge what are admittedly accurate records of a person's indictment and conviction.” United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993).

Nevertheless, where a defendant can show that his arrest record is inaccurate in some respect, courts have ordered NCIC records expunged. See, e.g., Dean v. United States, 418 F. Supp. 149 (E.D.N.Y. 2006); Doe v. Immigration and Customs Enforcement, 2004 U.S. Dist. Lexis 12021 (S.D.N.Y. June 29, 2004). Since the appropriateness of expungement is determined on a case-by-case basis, “some courts have even granted expungement where an arrest or conviction was valid and no misconduct was involved so long as sufficient extraordinary circumstances existed.” Doe, 2004 U.S. Dist. Lexis 12021 at *4.

As this discussion suggests, at minimum courts are reluctant to exercise their equitable authority to order expungement of executive branch records. Notwithstanding that general rule, in unique circumstances courts have exercised that authority.

Conclusion

If a defendant seeking expungement can show that government misconduct infected his arrest or the initiation of his prosecution, he will have a strong argument for an order of expungement. In other circumstances, courts clearly are disinclined to grant expungement based on equitable considerations but have done so in special cases where unique factors justified the exercise of the court's equitable authority.

Steven F. Reich, a member of this newsletter's Board of Editors, is the co-chair of the Corporate Investigations & White Collar Defense practice group at Manatt, Phelps & Phillips, LLP.. Adam Farbiarz, a summer associate at Manatt, participated in the drafting of this article.

You've just been through a long trial that was financially ruinous for your client, who was acquitted of fraud charges by a federal jury that was as unimpressed by the government's case as you were. Your client asks whether his arrest records can be sealed, and you say you'll have to look into it. This article examines the little-known and infrequently granted remedy of expungement in federal courts.

What Is Expungement?

Expungement is an order to return, seal or destroy a publicly maintained record. Courts appear to use the terms “expunge” and “seal” interchangeably. Whatever term is used, courts plainly have the power to expunge their own records in appropriate circumstances. What is less clear are the circumstances, if any, under which a court may order expungement of executive-branch records, such as those maintained by the FBI.

Broadly speaking, expungement may be of two types: 1) “legal”; or 2) “equitable.” Each is described below but with a focus on courts' equitable authority to expunge, since that type of expungement is likely to be the basis for a white-collar defendant's request to seal his criminal-justice records. We also discuss the power of courts to order expungement of executive-branch records, including those held by the FBI.

Cases Involving 'Legal Expungement'

Almost all courts have concluded that they have the power to expunge criminal records, including executive-branch records, where the defendant's arrest or indictment was unlawful or unconstitutional; when probable cause for those events was lacking; where there was government misconduct in obtaining the charge; or, as one court has said, where expungement is necessary “to preserve basic legal rights.” United States v. McMains , 540 F.2d 387, 389 (8th Cir. 1976). This type of expungement, which I'll call “legal expungement,” is the less controversial form of the remedy because even courts that take a limited view of their jurisdiction acknowledge their authority to expunge where an arrest or conviction is illegal. Thus, the authority of courts to seal records of an illegal arrest or indictment in a white-collar case appears well established.

Cases Involving 'Equitable Expungement'

A motion seeking equitable expungement requires a court to make an individualized assessment of whether, as a matter of fairness, a moving party's criminal-justice records should be publicly available. While some federal circuit courts have held that they have the power to grant such equitable relief, others have concluded that they do not. Compare, e.g., United States v. Schnitzer , 567 F.2d 536 (2d. Cir. 1977) (court has equitable authority to expunge) with United States v. Summers , 226 F.3d 1005 (9th Cir. 2000) (no authority to grant equitable expungement).

For those courts that believe they have authority to grant such relief, there is no single test for when equitable expungement is appropriate. The cases suggest that courts are sensitive to three factors when considering whether to exercise their equitable powers: 1) the propriety of the criminal charges and prosecution; 2) the immediacy of the reputational and professional harm that the
defendant will suffer if his record is not expunged; and 3) whether the defendant's professional peers are entitled to know about their colleague's criminal history. Just recently, a federal district judge in New York cautioned that the standard for equitable expungement is “extremely stringent.” Fernandez v. United States, 2009 U.S. Dist. LEXIS 63796, at *2 (E.D.N.Y. July 24, 2009).

In United States v. Lin , 513 F.2d 925 (10th Cir. 1975), the defendant sought expungement of his arrest record after having been acquitted of various securities-related offenses. In affirming the trial court's denial of relief, the Tenth Circuit said that there was no indication that the defendant had been subject to any “harassing action” carried out by law enforcement or prosecuting authorities. In particular, the circuit rejected the defendant's argument that expungement was appropriate because the district court refused even to charge the jury on an overwhelming majority of the counts in the indictment. Lin makes clear that an “acquittal, standing alone, is not in itself sufficient to warrant an expunction of an arrest record.” The Lin court also rejected as hypothetical the defendant's arguments that he would suffer future reputational and professional harm absent expungement. The Fourth Circuit reached a similar conclusion in United States v. Flowers , 389 F.3d 737, 740 (7th Cir. 2004), when it held that a mere “fear” that non-expungement will seriously limit the ability to find employment in one's field is a “speculative consequence that cannot outweigh the public interest in maintaining the accuracy of judicial records.”

In contrast, in Livingston v. United States Dep't of Justice , 759 F.2d 74 (D.C. Cir. 1985), the defendant persuaded the court that the presence on his record of an arrest for a murder for which he was never successfully indicted warranted remand to the district court to consider whether to grant expungement, even where there was no evidence of imminent or tangible reputational harm. The court found that simply having the “emotion-laden” word “murder” on one's record might justify relief. While clearly an unusual example, Livingston suggests that, for some courts, even potential harm to reputation can support an order of expungement.

When deciding these motions, courts also consider whether the defendant's professional peers have a right to know about their colleague's criminal history. In Schnitzer, 567 F.2d 536, the Second Circuit held that a rabbinical student who was indicted, but not ultimately prosecuted, for conspiracy to defraud a federal agency was not entitled to have his record expunged because he deserved to have to explain his criminal history to others. Relying on Schnitzer, a district judge in New York recently explained that “courts have nearly uniformly rejected adverse employment effects as grounds for expungement.” Fernandez, 2009 U.S. Dist. LEXIS 63796, at *2. However, in United States v. Bohr , 406 F. Supp 1218 (E.D. Wis. 1976), a district court ordered expungement of the criminal record of a lawyer indicted, but never prosecuted, for fraud, so that the lawyer could gain admission to the bar of another state. In contrast, where actual negative employment effects were shown, a judge ordered expungement. United States v. Doe , 935 F. Supp. 478 (S.D.N.Y. 1996). Thus, while courts generally have been reluctant to take employment effects into account when considering motions to expunge, in some cases those concerns have led to a grant of relief.

Equitable Expungement of Executive-Branch Records

Whether courts can expunge executive-branch records on equitable grounds has great practical significance because a prime target of an expungement motion will be records maintained by the FBI as part of the National Crime Information Center (NCIC), a computer system that contains comprehensive criminal-justice data and is available to law enforcement agencies nationwide.

One court emphasized the difference between judicial records, “over which the court has supervisory powers,” and law enforcement records, where the person seeking expungement must show “an affirmative rights violation by executive branch officers or agencies to justify the intrusion into the executive's affairs.” Sealed Appellant v. Sealed Appellee , 130 F.3d 695, 697 (5th Cir. 1997). And another has said flatly that “federal courts are without jurisdiction to order an Executive Branch agency to expunge what are admittedly accurate records of a person's indictment and conviction.” United States v. Janik , 10 F.3d 470, 472 (7th Cir. 1993).

Nevertheless, where a defendant can show that his arrest record is inaccurate in some respect, courts have ordered NCIC records expunged. See, e.g., Dean v. United States , 418 F. Supp. 149 (E.D.N.Y. 2006); Doe v. Immigration and Customs Enforcement, 2004 U.S. Dist. Lexis 12021 (S.D.N.Y. June 29, 2004). Since the appropriateness of expungement is determined on a case-by-case basis, “some courts have even granted expungement where an arrest or conviction was valid and no misconduct was involved so long as sufficient extraordinary circumstances existed.” Doe, 2004 U.S. Dist. Lexis 12021 at *4.

As this discussion suggests, at minimum courts are reluctant to exercise their equitable authority to order expungement of executive branch records. Notwithstanding that general rule, in unique circumstances courts have exercised that authority.

Conclusion

If a defendant seeking expungement can show that government misconduct infected his arrest or the initiation of his prosecution, he will have a strong argument for an order of expungement. In other circumstances, courts clearly are disinclined to grant expungement based on equitable considerations but have done so in special cases where unique factors justified the exercise of the court's equitable authority.

Steven F. Reich, a member of this newsletter's Board of Editors, is the co-chair of the Corporate Investigations & White Collar Defense practice group at Manatt, Phelps & Phillips, LLP.. Adam Farbiarz, a summer associate at Manatt, participated in the drafting of this article.