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United States v. Whitson

September 14, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARC WHITSON, DEFENDANT.



The opinion of the court was delivered by: Judge Holschuh

MEMORANDUM OPINION & ORDER

After pleading guilty to uttering a counterfeit security, a violation of 18 U.S.C. § 513(a), Defendant was sentenced on December 21, 1999 to four months in a halfway house and three years of supervised release. He was also ordered to make restitution to two victims of the offense. He has now completed his sentence and made restitution as ordered.

This matter is currently before the Court on Defendant's motion for expungement of his federal record (Record at 46), and his motion for an oral hearing on that motion for expungement (Record at 47). Defendant desires to become a registered representative for a brokerage house. He seeks expungement of his criminal record so that he does not need to disclose his conviction on his application for a securities license. The government opposes Defendant's motion.

A.

Defendant has requested an oral hearing on his motion for expungement, but fails to set forth any grounds for his request, as required by S.D. Ohio Civ. R. 7.1(b)(2).*fn1 In the Court's view, oral argument is not essential to the fair resolution of Defendant's motion for expungement. The motion does not present complex factual or legal issues, and is not a matter of public importance. Defendant's motion for oral argument (Record at 47) is therefore DENIED.

B.

While there is no statute that authorizes expungement of a conviction for a federal offense, "[i]t is 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). Nevertheless, "the expungement power is narrow and appropriately used only in extreme circumstances." United States v. Robinson, No. 94-1945, 1996 WL 107129, *1 (6th Cir. March 8, 1996). The government's need to maintain a record of convictions to aid in law enforcement efforts must be balanced against the harm to the individual in maintaining such records. Id. While expungement may be warranted in cases in which the conviction was obtained illegally or through governmental misconduct, or in cases involving convictions under statutes later deemed unconstitutional, expungement of a valid conviction is rarely, if ever, warranted. Id. at *2. See also United States v. Wiley, 89 F. Supp. 2d 909, 910 (S.D. Ohio 1999). The burden is on the Defendant to justify the need for expungement. Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 702 (5th Cir. 1997).

Defendant does not claim that his conviction was obtained illegally. Instead, he notes that since his conviction, he has been a model, law-abiding citizen, caring for his ill father, and trying to move on with his life. He is gainfully employed, and seeks to obtain a securities license in connection with his job. Unfortunately, the chance of obtaining such a license with a criminal record for uttering a counterfeit security is not good. He argues that although he has fully paid his debt to society, his criminal record is the equivalent of "a modern day scarlet letter," inhibiting his ability to move on and become a fully productive member of society.

The Court sincerely sympathizes with the inherent difficulties all ex-convicts face in trying to put the past behind them and move on with their lives. As the court explained in Wiley, however, the adverse consequences of their convictions "are the natural and predictable result of engaging in unlawful conduct." Wiley, 89 F. Supp. 2d at 911. The fact that Defendant's criminal record may impede his ability to obtain a securities license is insufficient to warrant expungement of his criminal record. See United States v. Scott, 793 F.2d 117, 118 (5th Cir. 1986) (vacating order of expungement granted by district court where defendant's criminal record interfered with her ability to pursue career as securities dealer).

The Court commends Defendant for obtaining gainful employment, for taking care of his father, and for being a law-abiding citizen since his release from custody. Nevertheless, Defendant has not established any "extreme circumstances" that would justify expunging his criminal record. The burden on Defendant does not outweigh the government's long-recognized interest in maintaining complete criminal records. See Wiley, 89 F. Supp.2d at 912. For these reasons, Defendant's motion to expunge his criminal record (Record at 46) is DENIED.

IT IS SO ORDERED.

John D. Holschuh, Judge United States ...


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