MEMORANDUM OF LAW IN OPPOSITION TO THE PETITIONER S MOTION TO EXPUNGE HER PRIOR FELONY CONVICTIONS

Transcription

1 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 1 of 25 PageID #: 40 BWB/JMK:DKK F. # 2015R01116 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X JANE DOE, Petitioner, Docket No. 15-MC-1174 (JG) - against - UNITED STATES OF AMERICA, Respondent. X MEMORANDUM OF LAW IN OPPOSITION TO THE PETITIONER S MOTION TO EXPUNGE HER PRIOR FELONY CONVICTIONS KELLY T. CURRIE ACTING UNITED STATES ATTORNEY Eastern District of New York 271 Cadman Plaza East Brooklyn, New York David K. Kessler Assistant U.S. Attorney (Of Counsel)

2 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 2 of 25 PageID #: 41 TABLE OF CONTENTS TABLE OF CONTENTS... i PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 1 I. The Petitioner s Felony Convictions and Sentence for Fraud... 1 II. The Petitioner s Post-Conviction Employment History... 2 III. The Petitioner s Motion for Expungement... 5 ARGUMENT... 6 I. The Petitioner s Motion Should Be Denied... 6 A. The Petitioner s Motion Should Be Denied Because This Court Lacks Jurisdiction to Expunge Her Prior Conviction Ancillary Jurisdiction Over the Expungement of a Lawful Criminal Conviction Is Precluded by Controlling Supreme Court Law and Would Directly Interfere with the Separation of Powers No Circuit Court in the Post-Kokkonen Era Has Held that a Court Has Ancillary Jurisdiction to Expunge Records of a Lawful Criminal Conviction for Equitable Reasons B. The Petitioner s Motion Should Be Denied Because the Petitioner Has Not Established Extreme Circumstances Warranting Expungement II. This Court Lacks the Authority to Issue a Certificate of Rehabilitation CONCLUSION i

3 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 3 of 25 PageID #: 42 PRELIMINARY STATEMENT In October 2002, the petitioner was convicted after trial of six counts of conspiring to commit and committing health care and mail fraud arising out of a staged motor vehicle accident. She does not contest the validity of that conviction, assert that the government has in any way misused her criminal records, or argue that the government has violated any Constitutional or statutory right she might have. Instead, the petitioner asks this Court to order that all records of her convictions be expunged so that she will be better able to find and keep a job. The petitioner s motion should be denied. Federal courts lack jurisdiction to expunge the records of a valid criminal conviction for purely equitable reasons, such as the reason the petitioner gives. Even if this Court had jurisdiction over petitioner s motion, it should still deny that motion because the petitioner has failed to show the kind of exceptional circumstances that might merit expungement. Among other things, the petitioner has routinely misrepresented her criminal record to prospective employers. Finally, this Court lacks the authority to grant alternative relief in the form of a certificate of rehabilitation. STATEMENT OF FACTS I. THE PETITIONER S FELONY CONVICTIONS AND SENTENCE FOR FRAUD In 2000, the petitioner was the driver of a vehicle involved in a staged automobile accident, part of a larger scheme to stage accidents to allow for the filing of false insurance claims. In October 2002, the petitioner was convicted after trial of conspiring to commit and of committing health care and mail fraud. See Declaration of Mitchell A. Golub, Jane Doe v. United States, No. 15-MC-1174 (JG) (E.D.N.Y.), Dkt. No. 1 ( Golub Dec. )

4 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 4 of 25 PageID #: 43 1, 3; Jury Verdict & Judgment, United States v. Hawkins, et al., No. 02-CR-1077 (JG) (E.D.N.Y.), Dkt. No In 2003, this Court sentenced the petitioner to 15 months in prison, to be followed by three years of supervised release. Id. 1 The petitioner completed her term of imprisonment in (Dep. Tr. 31:10-17.) 2 II. THE PETITIONER S POST-CONVICTION EMPLOYMENT HISTORY As detailed below, the petitioner, a Licensed Practical Nurse, has held a number of jobs in the nursing industry from 2004 to the present. She also has applied for additional jobs for which she was not hired. According to the petitioner, she has never truthfully answered questions on job applications about her criminal convictions: Q. Do you have a sense of how frequently when an application asked you whether you had a criminal conviction you would say or write you did not have a criminal conviction? A. I never say yes. Q. Can you think of any application where you had been asked whether you had a criminal conviction and you had written that you have a criminal conviction? A. No. Q. Is it fair to say you filled out more than ten but fewer than a hundred job applications that have asked whether you have a criminal conviction? 1 In 2012, after the petitioner had completed her terms of incarceration and supervised release, the judgment against her was amended to a term of imprisonment of only 11 months for each count, rather than 15 months per count. See Amended Judgment, United States v. Hawkins, et al., No. 02-CR-1077 (JG) (E.D.N.Y.), Dkt. No Citations to Dep. Tr. refer to the transcript of a deposition of the petitioner taken on August 20, A copy of that deposition has been provided to the defendant and to the court. 2

5 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 5 of 25 PageID #: 44 A. Yes. Q. On none of the applications did you say I had a criminal conviction? A. I ve never admitted to having. [sic] (Dep. Tr. 16:4-12, 17:9-15.) From 2004 through part of 2006, the petitioner worked as a nurse. (Dep. Tr. 39:5-8, 42:12-24.) She made more than $30,000 working as a nurse in 2004, and more than $47,000 in (Id. Tr. 44:7-19, 46:11-16.) According to the petitioner, her employers during that two-year period did not know about her felony convictions, in part because she never told them about the convictions. 3 (Id. Tr. 47:16-48:4.) In September 2006, the petitioner s New York nursing license was suspended for two years, with the second year stayed, because of her felony convictions. (Golub Dec. 5.) The petitioner does not remember what if any work she did, or how she otherwise supported herself, while her license was suspended. (Dep. Tr. 50:17-51:21.) After the suspension of her license was lifted, the petitioner returned to work as a nurse. From 2008 through 2011, she worked for three different agencies. (See Dep. Tr. 52:11-14, 56:20-25.) The petitioner submitted an application for each of these jobs. (Id. Tr. 53:18-21, 54:7-12, 57:8-10.) She stopped working at one agency when that agency went out of business. (Id. Tr. 55:18-21.) She worked at a second agency for approximately two years and stopped because she wasn t getting cases from them any more. (Id. Tr. 55:21-3 According to an entry in the Probation Department s Chronological Record Report on March 29, 2006, the petitioner said that she was only working on weekends and stated that she is applying to various nursing agencies but her conviction is baring [sic] her from employment. The entry also states that the Probation Officer directed subject to expand her job search. 3

6 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 6 of 25 PageID #: 45 56:11.) The petitioner is not sure why she wasn t getting cases. (Id.) Finally, the petitioner worked at a hospice care agency for about one year. (Id. Tr. 56:20-25.) The petitioner stopped working at the hospice care agency after a patient made a complaint about her. (Id. Tr. 57:11-18.) No one at any of those three employers told the petitioner that she would no longer be given work because of her criminal record. (Id. Tr. 58:15-23.) From 2012 to 2013, the petitioner was unable to work because of a medical condition. Once that condition had been treated, the petitioner again began to look for work in the nursing industry in From 2013 through the present, the petitioner continued to work in the nursing industry. In 2013, the petitioner worked for one nursing agency for less than a year. (Dep. Tr. 64:4-5.) Eventually the agency stopped placing the petitioner at nursing jobs, but did not tell her why. (Id. Tr. 64:24-65:2.) The petitioner recalls applying to two other nursing jobs during (Id. Tr. 67:22-24.) The first prospective employer told the petitioner that she was not getting the job because they didn t have the need right now. 4 (Id. Tr. 66:18-67:3.) The second employer that told the petitioner it would not give her work because of her criminal conviction. (Id. Tr. 23:20-25:20, 25:21-27:10.) In 2014, the petitioner worked from March through August at a different nursing agency. (Id. Tr. 68:25-69:4.) The petitioner stopped working for that agency after a client died (not because of anything the petitioner did). (Id. Tr. 70:3-8.) The petitioner 4 The petitioner also mentioned a job working for an unidentified woman to which it appears she applied in (Dep. Tr. 21:20-22:14.) The petitioner said that she did not get that job because that woman called me up she was really upset, she said I didn t tell her, she said she saw it [the convictions] on my license, so I couldn t get the job. (Id. 21:20-22:3.) 4

7 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 7 of 25 PageID #: 46 recalls applying for one other job during 2014, another nursing position. (Id. Tr. 73:16-19.) In that application, the petitioner stated that she did not have a criminal record. (Id. Tr. 72:2-11.) The petitioner was not hired, and the agency did not explain why she not being offered a job. (Id. Tr. 72:20-73:3.) Also in 2014, the petitioner created a house cleaning business. (Id. Tr. 77:11-78:8, 84:24-85:6.) She has cleaned a few houses so far. (Id. Tr. 78:6-8.) In 2015, the petitioner applied for jobs at two nursing agencies that told her she would not be hired because of her criminal record. See Letter, Jane Doe v. United States, No. 15-MC-1174 (JG) (E.D.N.Y.), Dkt. No. 5 ( Golub Let. ) at 3. She applied for a third job with an individual and, during the interview was told that a background check had been done and they found someone with [the petitioner s name] who had a criminal record. (Golub Let. at 2.) After that, the petitioner told [the individual] I would call, but never had taken any more of her calls. (Dep. Tr. 20:23-21:14.) The petitioner applied for a fourth job and was told a background check would be done. (Golub Let. at 2.) The petitioner did not receive a job offer. (Id.) The petitioner did not reveal her criminal convictions when applying for any of the jobs discussed above. (See Dep. Tr. 16:4-12, 17:9-15.) It also appears that the petitioner has stopped, or not started, the application process for some jobs, both in the nursing field and in other fields, because she just feel[s] intimidated when she sees a question about a criminal record on an employment application. (Dep. Tr. 79:6-23.) III. THE PETITIONER S MOTION FOR EXPUNGEMENT This is the petitioner s second motion seeking expungement. This Court denied her first motion in See Docket Entry, United States v. Hawkins, et al., No. 02- CR-1077 (JG) (E.D.N.Y.), dated July 1, 2008 ( Motion to seal and/or expunge her criminal 5

8 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 8 of 25 PageID #: 47 case record is denied ). This Court also denied the petitioner s motion for a Writ of Error Coram Nobis in See Clerk s Judgment, Janet Foster v. United States, No. 13-CV-3004 (JG) (E.D.N.Y.), Dkt. No. 10. The petitioner filed this second motion to expunge her criminal convictions on June 23, ARGUMENT I. THE PETITIONER S MOTION SHOULD BE DENIED The petitioner s motion to expunge her prior felony convictions on equitable grounds should be denied for two reasons. First, this Court lacks jurisdiction to expunge her lawful conviction for equitable reasons. Second, even if this Court had jurisdiction, the petitioner has not shown that she is entitled to such relief. A. The Petitioner s Motion Should Be Denied Because This Court Lacks Jurisdiction to Expunge Her Prior Conviction. Federal courts have limited jurisdiction. They possess only that power authorized by Constitution and statute, as well as ancillary jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, (1994). A court s jurisdiction is not to be expanded by judicial decree beyond these bounds. Id. at 377. Because no Constitutional or statutory provision grants jurisdiction to expunge the records of a lawful criminal conviction on equitable grounds, the narrow question in this case is whether this Court has ancillary jurisdiction to grant that relief. 5 The answer is no. 6 5 This case does not implicate the question whether a court has jurisdiction to expunge the record of an unlawful or otherwise invalid arrest or conviction. See, e.g., United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000) ( ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error. ). 6

9 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 9 of 25 PageID #: Ancillary Jurisdiction Over the Expungement of a Lawful Criminal Conviction Is Precluded by Controlling Supreme Court Law and Would Directly Interfere with the Separation of Powers. The Supreme Court has identified only two grounds for asserting ancillary jurisdiction: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. Id. at Because neither ground supports the assertion of ancillary jurisdiction over a request for the expungement of a valid criminal conviction for equitable reasons, there can be no ancillary jurisdiction over such a request. Moreover, granting such a request for expungement would usurp powers delegated to the Legislative and Executive branches of government. First, an expungement motion is not a claim that is factually interdependent on an underlying criminal case. [F]actually interdependent claims are those that involve simultaneously factually intertwined issues. See Peacock v. Thomas, Nor does this case address the question whether a court has jurisdiction to expunge a valid conviction where there is statutory authority for such expungement, such as the expungement of a criminal conviction that had been set aside under the now-repealed Federal Youth Corrections Act, 18 U.S.C See United States v. Doe, 935 F. Supp. 478, (S.D.N.Y. 1996); United States v. Doe, No. 710-CR-892 (CBM), 2004 WL , at *2 (S.D.N.Y. May 20, 2004). 6 Despite bearing the burden of establishing that this Court has jurisdiction over her motion, Kokkonen, 511 U.S. at 377, the petitioner does not address the issue of jurisdiction. Instead she appears to rely entirely on this Court s prior decision in Doe v. United States, which, among other things, held that the Court has ancillary jurisdiction over a motion to expunge a valid criminal conviction WL , at *5 n.16 (E.D.N.Y. May 21, 2015). 7

10 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 10 of 25 PageID #: U.S. 349, (1996). An expungement motion based on equitable considerations, such as difficulty in finding a job, must necessarily be based on facts that occur after in this case more than 10 years after a conviction in the underlying criminal case. See, e.g., United States v. Coloian, 480 F.3d 47, 52 (1st Cir. 2007) ( [T]he original claims brought before the district court in this case have nothing to do with the equitable grounds upon which [the defendant] seeks the expungement of his criminal record. ). Indeed, such a claim could never be factually interdependent with an underlying criminal case because a criminal case always precedes the facts supporting the expungement motion and so could never depend on those facts. Thus the two claims could never involve simultaneously factually intertwined issues. See Peacock, 516 U.S. at 355 ( once judgment was entered in the original ERISA suit, the ability to resolve simultaneously factually intertwined issues vanished ). Of course, in considering a motion to expunge a criminal conviction, a court might be informed by, inter alia, the facts underlying the conviction and sentence and the extensive factual record created while a defendant was under the court s supervision. See Doe, 2015 WL , at *4 n.16. But the standard established by Kokkonen does not require only that one claim be informed by facts arising from another; it requires that the two claims be factually interdependent. Most motions for the expungement of a lawful conviction on equitable grounds will rely in part on the facts underlying the conviction, yet circuit courts have routinely rejected the extension of ancillary jurisdiction to such motions. And it would prove too much if a court could assert ancillary jurisdiction over a claim because that claim was in some way informed by facts arising from a prior case. For example, other post-conviction motions, such as a motion for resentencing after an 8

11 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 11 of 25 PageID #: 50 amendment to the Sentencing Guidelines, similarly turn in part on the facts underlying the conviction and sentence, yet Congress passed laws to allow for such motions. See, e.g., 18 U.S.C Indeed, [t]wo bills that would create federal expungement authority for nonviolent offences have been introduced in recent years, although neither advanced to a floor vote. Doe, 2015 WL , at *4 & n.13. Such laws would be unnecessary if a court had ancillary jurisdiction to entertain those motions. Second, exercising ancillary jurisdiction to expunge a lawful criminal conviction would not enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. Kokkonen, 511 U.S. at 380. That second source of ancillary jurisdiction provides a court with power that is require[ed] in order to perform [its] functions. Id. That power relates to procedural tools a court may use to ensure that a substantive decision is reached and obeyed such as compelling payment of opposing party s attorney s fees as sanction for misconduct, using the contempt power to maintain order during proceedings, or appointing counsel to investigate a prosecute a violation of a court s order not to an effort to change the substance of an existing decision or to issue a new one. See id. at The petitioner s request to expunge her conviction because it is difficult for her to find work illustrates how expunging a lawful criminal conviction has nothing to do with enabling a court to function successfully. It is inconceivable that, in order to perform its judicial functions, a court would require the power to expunge a criminal conviction so that a defendant could find work. See Coloian, 380 F.3d at 52 (the power to expunge a criminal record is quite remote from what courts require in order to perform their functions ) (emphasis in original). Expunging such a conviction would neither allow a court 9

12 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 12 of 25 PageID #: 51 to manage its proceedings because the criminal proceeding has been managed and completed nor allow a court to vindicate its authority because there has been no challenge to such authority nor allow a court to effectuate its decrees because there is no suggestion that the decree of sentence has not been effectuated. 7 Instead, a request for expungement seeks a new proceeding, involving the exercise of additional authority and the issuance of a new decree. 8 Third, the extension of ancillary jurisdiction to expunge records of valid criminal convictions not only conflicts with Kokkonen, but also would raise serious concerns about the separation of powers. Recognizing the compelling public need for an effective and workable criminal identification procedure, Congress has explicitly authorized the Executive branch to preserve criminal records. United States v. Schnitzer, 567 F.2d 539 (2d Cir. 1977); see, e.g., 28 U.S.C. 534(a) ( The Attorney General shall... acquire, collect, classify, and preserve identification, criminal identification, crime, and other records.... ). 7 The Sixth Circuit observed: What is it about managing a criminal case, vindicating its power over the case and effectuating any orders in the case that requires a district court to have authority, sixteen years later, to remove any record held by any federal entity of the proceeding? None that we can see. Lucido, 612 F.3d at This Court has held that few things could be more essential to the conduct of federal-court business than the appropriateness of expunging public records that business creates. Doe, 2015 WL , at *5 n.16 (quoting Kokkonen). The Kokkonen court did refer to the conduct of federal-court business, but it did not hold that ancillary jurisdiction applies whenever a motion relates to that conduct; Kokkonen limited the source of ancillary jurisdiction to the two narrow categories discussed above. In addition, the maintenance of many public records that [federal-court] business creates, including criminal records, has largely been assigned not to the courts but to the Executive branch. See, e.g., 28 U.S.C. 534(a). 10

13 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 13 of 25 PageID #: 52 Congress also has passed laws that identify limited circumstances in which such records may be expunged. 9 The assertion of ancillary jurisdiction to order the expungement of records of a valid criminal conviction amounts to one branch of government commanding another to violate the explicit commands of the third, without any statutory or Constitutional basis for doing so. Such a command would constitute an extraordinary inter-branch incursion that usurps the powers that the framers of the Constitution allocated to Congress [and] the Executive by nullif[ying] a law which Congress has properly enacted and which the Executive has successfully enforced. 10 United States v. Lucido, 612 F.3d 871, 875 (6th Cir. 2010); United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000) ( The Constitution confers upon Congress the power to enact laws and upon the Executive the power to enforce them. ). Moreover, what the petitioner seeks, in essence, is a pardon. But the Constitution assigns the authority to grant pardons to the President of the United States, as leader of the 9 See, e.g., 10 U.S.C. 1565(e) (expungement of DNA records when a court overturns a military conviction); 18 U.S.C. 3607(c) (expungement of criminal records in certain cases involving drug possession); 42 U.S.C (d) (expungement of FBI DNA records in certain cases when a conviction is overturned). Courts have recognized that there is good reason why the expungement of valid criminal convictions should be regulated by statute and not by a court s equitable power: Different districts might well develop different equitable standards for ordering expungement, thereby undermining the reliability and integrity of federal criminal conviction records. Mitchell, 683 F. Supp. 2d at Such expungement could also usurp powers reserved for the states by the Constitution. Sumner, 226 F.3d at For example, when states have established professional standards that are affected by criminal records, expungement also trenches on their right to regulate employment within their borders. Id. Here, fully to expunge this petitioner s criminal record would require, among other things, that the New York State agency that maintains the record of the petitioner s suspended nursing license an agency not a party to this civil proceeding erase that record. Such a requirement is far afield from an exercise of ancillary jurisdiction. 11

14 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 14 of 25 PageID #: 53 Executive branch, not to the courts. See U.S. Const. art. II, sec. 2 (the President shall have Power to grant Reprieves and Pardons for Offenses against the United States ). Therefore, the assertion of ancillary jurisdiction to expunge a valid criminal conviction for equitable reasons finds no support in Kokkonen and would infringe on the power delegated to the two other branches of government. 2. No Circuit Court in the Post-Kokkonen Era Has Held that a Court Has Ancillary Jurisdiction to Expunge Records of a Lawful Criminal Conviction for Equitable Reasons. In light of Kokkonen and the concerns about the separation of powers discussed above, it is not surprising that the authority in the circuit courts does not support petitioner s assertion of jurisdiction in this case. Every circuit court to address whether, after Kokkonen, a federal court has ancillary jurisdiction to expunge a valid criminal conviction for equitable reasons has held that courts lack such jurisdiction. See, e.g., United States v. Field, 756 F.3d 911, (6th Cir. 2014) (collecting cases); Coloian, 480 F.3d at 52 (First Circuit); United States v. Rowlands, 451 F.3d 178 (3d Cir. 2006); United States v. Meyer, 439 F.3d 855, 860 (8th Cir. 2006); Sumner, 226 F.3d at 1014 (Ninth Circuit). And no circuit court that has considered Kokkonen has held that a court has such ancillary jurisdiction. In addition, although the Fourth 11 and Eleventh Circuits 12 have not yet addressed Kokkonen in this context, numerous 11 Numerous [w]ell-reasoned decisions of district courts in the Fourth Circuit, relying on Kokkonen, have held that they lack ancillary jurisdiction over proceedings to expunge records of criminal proceedings based solely upon equitable grounds. FPP (discussing cases); see, e.g., United States v. Mitchell, 683 F. Supp. 2d 427, 430 (E.D. Va. 2010) ( It is clear that neither the Constitution, nor statute, nor any claim of properly limited ancillary jurisdiction applies to federal courts expungement of criminal convictions solely on equitable grounds ); United States v. Pritchett, 2015 WL , at *2 (D. Md. May 12

15 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 15 of 25 PageID #: 54 district courts in each of those circuits have relied on Kokkonen to hold that a court does not have ancillary jurisdiction over such requests for expungement. 28,2015) ( [A]n expungement of conviction petition does not fall within the two purposes set forth in Kokkonen ); United States v. Ware, 2015 WL , at *3-*5 (N.D.W. Va. May 7, 2015); United States v. Whipkey, 2014 WL , at *1-3 (N.D.W. Va. May 14, 2014) ( This Court, therefore, does not have ancillary jurisdiction to review the defendant s petition for expungement of her federal criminal convictions for equitable reasons); United States v. Taylor, 2014 WL , at *3-*4 (E.D. Va. Apr. 29, 2014); United States v. Banks, 2013 WL , at *3-*4 (N.D.W. Va. Oct. 29, 2013); United States v. Harris, 847 F. Supp. 2d 828, (D. Md. 2012); United States v. Thompson, 2012 WL , at *1-*2 (D. Md. 2012) ( While the Fourth Circuit has not directly addressed the issue, a number of district courts in this circuit have. The more well-reasoned of these decisions have agreed that ancillary jurisdiction does not empower a court to expunge federal criminal convictions on purely equitable grounds. ); Sambou v. United States, 2010 WL (E.D.N.C. Aug. 24, 2010); Bethel v. United States, 2010 WL (E.D.N.C. Aug. 3, 2010); United States v. Pence, 2006 WL , at *1-*2 (W.D. Va. Oct. 27, 2006). These cases also acknowledge that a thirty-year-old Fourth Circuit decision, Allen v. Webster, 742 F.2d 153, 154 (4th Cir. 1984), could be read to suggest that a court might have jurisdiction to expunge records relating to a defendant s arrest, trial, and acquittal. The district court cases distinguish Allen on numerous grounds, including that it does not address Kokkonen. E.g., United States v. Allen, 57 F. Supp. 3d 533, (E.D.N.C. 2014) ( [S]everal district court decisions within the Fourth Circuit, including Harris and Mitchell, have distinguished the Allen case in light of the Supreme Court s Kokkonen decision in the intervening time period.... Because the Fourth Circuit has not revisited this issue since Kokkonen, the court is guided by these district court decisions. ). Moreover, even if Allen was the relevant precedent in the Fourth Circuit, it does not address the expungement of a lawful criminal conviction. 12 In the absence of statutory authority or a post-kokkonen opinion from the Eleventh Circuit suggesting that a district court has jurisdiction to expunge criminal records on the basis of equitable considerations, courts in that Circuit have held that there is no such jurisdiction. United States v. Tyler, 607 F. Supp. 2d 1346, 1349 (M.D. Fla. 2009); accord Hall v. Alabama, 2010 WL , at *8 (M.D. Ala. Feb. 18, 2010) ( Absent statutory authority and a post-kokkonen opinion from the Eleventh Circuit, this Court agrees with the analysis set forth by the First, Third, Eighth, and Ninth Circuits as well as [Tyler] that no ancillary jurisdiction exists to determine the issue of expungement ); United States v. Paxton, 2007 WL , at *2 (M.D. Ala. July 20, 2007) (same). The Paxton court predicted that the Eleventh Circuit would follow the post-kokkonen theory that courts lacked ancillary jurisdiction to expunge valid criminal records WL at *2. 13

16 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 16 of 25 PageID #: 55 Several circuits that have not yet addressed the effect of Kokkonen in this context have nevertheless held that a court lacks jurisdiction to expunge records of a valid conviction in light of the separation of powers and the generally limited jurisdiction of the federal courts. The Tenth Circuit has repeatedly held that there is no applicable inherent equitable authority to grant expunction of a valid conviction. Tokoph v. United States, 774 F.3d 1300, 1305 (10th Cir. 2014); United States v. Pinto, 1 F.3d 1069, (10th Cir. 1993) (courts lack the power to expunge a criminal conviction that has not in some manner, been invalidated ). 13 The Seventh Circuit in United States v. Flowers held that federal courts lack jurisdiction to order expungement of criminal records if maintained by the executive branch. 389 F.3d 737, 739 (7th Cir. 2004). The Fifth and D.C. Circuits have held that a court has the power to expunge executive branch records only where the conviction was the result of an affirmative rights violation by the executive branch, not for equitable reasons Camfield v. City of Oklahoma City is a case in the Tenth Circuit that postdates Kokkonen but states that courts have inherent equitable authority to order the expungement of an arrest record or a conviction in rare or extreme circumstances. 248 F.3d 1214 (10th Cir. 2001). In making that statement, the Camfield court cited Pinto, which recognized such authority in the context of an invalidated conviction, and Linn, in which the court held that where an arrest itself was an unlawful one, or where the arrest represented harassing action by the police, or where the statute under which the arrestee was prosecuted was itself unconstitutional, courts have ordered expunction, 513 F.2d 925 (10th Cir. 1975). In other words, the dicta in Camfield did not refer to the expungement of a valid, lawful criminal conviction for equitable reasons. And the Tenth Circuit made clear in Tokoph, which was issued more than ten years after Camfield, that a court does not have jurisdiction to expunge such a conviction. 14 Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (D.C. Cir. 1997); Melawer v. United States, 341 Fed. App x 83, 84 (5th Cir. 2009) ( [T]he party seeking expungement against executive agencies must assert an affirmative rights violation by the 14

17 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 17 of 25 PageID #: 56 The petitioner in this case cites no authority for the exercise of ancillary jurisdiction over her petition. Instead, the petition appears implicitly to rely on this Court s prior decision in Doe v. United States, which cited cases from the Second, Fourth, Seventh, Tenth, and D.C. Circuits that purportedly have held that there is ancillary jurisdiction to expunge records of lawful convictions based on equitable considerations. Doe, 2015 WL , at *5 n.16 (citing United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977)); Allen, 742 F.2d at (Fourth Circuit); Flowers, 389 F.3d at 739 (Seventh Circuit); Linn, 513 F.2d 925, 927 (10th Cir.1975); Livingston v. United States Dep t of Justice, 759 F.2d 74, 78 (D.C.Cir.1985)). To the extent these cases may appear to create a circuit split about ancillary jurisdiction to expunge records of a valid criminal conviction, that split is just an illusion. None of the cases cited in Doe address Kokkonen, and all but Flowers predate that decision. See United States v. Lucido, 612 F.3d 871, (6th Cir. 2010) (explaining the inapplicability of these same five cases). Nor is there is reason to believe that any of the circuits whose cases are cited would support an assertion of ancillary jurisdiction over a motion to expunge a lawful conviction for equitable reasons. As discussed above, the Seventh, Tenth, and D.C. Circuits have held that a court lacks ancillary jurisdiction to expunge records of valid convictions held by the Executive branch, and the cases cited in Doe do not hold otherwise. Similarly, the myriad district courts in the Fourth Circuit have executive actors holding the records of the overturned conviction. ); United States v. Scott, 793 F.2d 117, 118 (5th Cir. 1986) (same). 15

18 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 18 of 25 PageID #: 57 recognized that a reading of Allen that supports such ancillary jurisdiction would be foreclosed by Kokkonen. See supra page 12 n.11. Finally, the Second Circuit s last statement about the existence of ancillary jurisdiction to expunge criminal records is the forty-year-old Schnitzer decision. In that case, the court denied a motion to expunge the arrest record of a rabbinical student, noting that expungement lies within the equitable discretion of the court, and relief usually is granted only in extreme circumstances. 567 F.2d at 539. The only extreme circumstances recognized by the court were those that would make an arrest invalid or otherwise violate a defendant s rights. 15 In other words, Schnitzer is consistent with the holdings of the other circuit courts that ancillary jurisdiction exists to expunge records based on an invalid arrest or conviction, or after some other affirmative rights violation. The Second Circuit has never held that Schnitzer provides a basis for asserting ancillary jurisdiction to expunge a valid criminal conviction for equitable reasons. 16 There is no reason to believe that, particularly in light of Kokkonen, it would so hold in the future. 15 Id. at ( procedures of mass arrests rendered judicial determination of probable cause impossible, the sole purpose of the arrests was to harass civil rights workers, the police misused the police records, the arrest was proper but was based on a statute later declared unconstitutional ). 16 The Second Circuit appears to have cited Schnitzer only three times, and never in a circumstance remotely similar to this case. See United States v. Amerson, 483 F.3d 73 (2d Cir. 2007) (affirming the decision that a statute requiring the storing of DNA samples does not violate the Fourth Amendment); Garcia v. Teitler, 443 F.3d 202, 207 (2d Cir. 2006) (holding that there is ancillary jurisdiction over a fee dispute arising from a Curcio hearing in a criminal case); United States v. Dransfield, 104 F.3d 350 (2d Cir. 1996) (affirming the denial of a motion to expunge a victim impact letter submitted to the district court). 16

19 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 19 of 25 PageID #: 58 In sum, the authority does not support petitioner s implicit assertion that this Court has jurisdiction over her motion. Every circuit to confront Kokkoken, as well as the Tenth Circuit and several circuits worth of district courts, has held that there is no ancillary jurisdiction to expunge records of a lawful criminal conviction on equitable grounds. Most circuits that have yet to address Kokkonen in this context have explicitly reached the same conclusion, at least with respect to records maintained by the executive branch. No circuit has held, after Kokkonen, that there is ancillary jurisdiction over such expungement. * * * For the foregoing reasons, this Court lacks ancillary jurisdiction over the petitioner s motion for expungement of her valid felony conviction. B. The Petitioner s Motion Should Be Denied Because the Petitioner Has Not Established Extreme Circumstances Warranting Expungement. Assuming that the Court has jurisdiction to expunge the petitioner s felony convictions, it should not do so. Where applicable, the decision to grant a motion for expungement lies within the equitable discretion of the court, and relief usually is granted only in extreme circumstances. United States v. Schnitzer, 567 F.2d 536, (2d Cir. 1977); accord, e.g., United States v. Schonsky, No. 05 CR (JG), 2015 WL , at *1 (E.D.N.Y. May 1, 2015). The petitioner argues that such extreme circumstances are present here because: (1) the conviction is distant in time and nature from her present life ; (2) Petitioner has demonstrated that her criminal record has had a dramatic adverse impact on her ability to work ; and (3) the argument that prospective employers must know about this conviction because it took place in the health care field is not valid. (Golub Decl ) 17

20 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 20 of 25 PageID #: 59 These arguments do not establish the sort of extreme circumstances that merit expungment. What petitioner seeks is nothing more than expungment based solely on the alleged adverse employment consequences of her conviction. But as this Court has recognized, courts in this circuit have traditionally declined to expunge records based on adverse employment consequences alone. Doe v. United States, 2015 WL , at *5 n.27. Indeed, [n]umerous cases stand for the proposition that [d]ifficulty in obtaining employment because of a criminal record is not enough to justify expungement. Joefield v. United States, No. 13-MC-367 (JBW), 2013 WL , at *3 (E.D.N.Y. Aug. 5, 2013) (collecting cases) (internal quotation marks omitted); see Oyebola v. United States, No. 10- MC-425 (JG), 2010 WL (E.D.N.Y. July 20, 2010) (denying motion to expunge where petitioner cannot find new employment because of her criminal record, because the law does not permit expungement based on such circumstances ) (quoting United States v. James, No. 97 CR 715 (ILG), 2003 WL , at *2 (E.D.N.Y. Feb.13, 2003)). 17 This 17 See also, e.g., United States v. Barrow, No. 06-CR-1084, 2014 WL , at *1 (S.D.N.Y. May 16, 2014) (denying motion for expungement where conviction has impeded his professional and educational progress ); Moss v. United States, No. 09-MC-495 (JFB), 2011 WL , at *3 (E.D.N.Y. May 4, 2011) (denying motion to expunge by petitioner who was disqualified from service as a substitute teacher and tutor because of her conviction); United States v. Thompson, No. 10-MC-537 (JO), 2010 WL , at *1 (citing Schnitzer, 567 F.2d at 540) (denying motion for expungement by petitioner who encountered obstacles to employment due to her criminal record); Gardner v. United States, No. 10-MC-0159 (KAM) (JO), 2010 WL , at * 1 (E.D.N.Y. Apr. 23, 2010) (denying motion to expunge by petitioner who claimed his conviction prejudice[d] his employment prospects ); Fernandez v. United States, No. 09-MC-326 (CPS), 2009 WL , at *2 (denying motion to expunge by an unemployed petitioner who was having trouble obtaining employment); Slansky v. White, No. 96-CV-2338 (JFK), 1996 WL , at *2 (E.D.N.Y. June 10, 1996) (denying motion to expunge by petitioner who was fired from a job when a background check revealed his conviction). 18

21 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 21 of 25 PageID #: 60 is so even if a petitioner has lived a law-abiding or exemplary life since his or her conviction. E.g., Ali v. United States, No. 13-MC-342 (MKB), 2013 WL , at *2 (E.D.N.Y. Aug. 9, 2013); Holmes v. United States, No MC-0106 (MDG), 2005 WL , at *2 (E.D.N.Y. June 2, 2005). The petitioner has presented no reason to go against this well-established law. First, every single time the petitioner has been asked on an employment application whether she has a prior criminal conviction, she has said she does not. (Dep. Tr. 16:4-12, 17:9-15 ( I never say yes. ).) The petitioner has misrepresented her employment status on between ten and 100 job applications. (Id.) The government is aware of no case granting expungement of a criminal conviction on the grounds that the conviction has interfered with the petitioner s employment in which the petitioner repeatedly misled potential employers about her criminal record. Even this Court, in granting a motion to expunge the criminal conviction of a different petitioner, noted that petitioner doesn t lie to her employers, who do not ask her if she has a criminal record at the hiring stage. Doe, 2015 WL at *3. The same cannot be said for this petitioner. Moreover, it is just as, if not more, likely that it is the petitioner s misrepresentations to her prospective employers, rather than her underlying convictions, that have prevented the petitioner from being hired. The petitioner herself agreed that the kind of nursing job for which she applies require that a nurse be trustworthy and be honest with patients and doctors. (Dep. Tr. 14:2-10.) An applicant who misrepresents something as 19

22 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 22 of 25 PageID #: 61 fundamental as her criminal record on an application would seem to be disqualified from such jobs. 18 Second, setting aside the petitioner s misrepresentations to her prospective employers, her suggestion that her criminal record has prevented her from getting or keeping nursing jobs is not clearly supported by the record. After being convicted and serving her prison sentence, the petitioner worked for almost two years as a nurse. After her license had been suspended, the petitioner again worked as a nurse from 2008 through The petitioner also worked as a nurse in 2013 and There is no evidence that the petitioner s criminal record prevented her from getting any of these jobs. Nor has the petitioner presented evidence that she lost any of those jobs because the employer later discovered a criminal conviction she had concealed. For example, from 2008 to 2011, the petitioner concededly lost one job because the company stopped operating and another because of a patient s complaint. To be sure, it seems likely that petitioner s criminal record has made finding and keeping a job more difficult than that process would have been for someone without felony convictions. But that general intuition, and the handful of recent jobs the petitioner has identified for which she was told she was not being hired because of her criminal record, do not establish the sort of dramatic adverse impact on her ability to work that this Court 18 In her deposition, the petitioner justified her serial misrepresentation of her criminal record by stating that No one is going to hire you with a criminal record in the nursing field, they are not doing it. (Dep. Tr. 30:9-24.) First, that assertion is belied by petitioner s own career. For example, she worked as a nurse from 2008 to Second, even if the petitioner s conviction would make it difficult to find a job in the nursing industry, the petitioner has not shown that jobs outside the nursing industry are generally unavailable to her. 20

23 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 23 of 25 PageID #: 62 has previously held to be a factor in finding exceptional circumstances warranting expungement. 19 See Doe, 2015 WL , at *5. Finally, it does not appear that, until recently, the petitioner made a significant effort to find a job outside of the nursing industry. Although there is no doubt that the petitioner has developed training and expertise as a nurse, she has not shown that she would be unable to find a satisfactory non-nursing job. It is unfortunate that the petitioner feels intimidated by an application process that may (or may not) involve disclosing her criminal record, but being intimidated by job applications does not create a valid basis for expunging that record. 20 See, e.g., Schnitzer, 567 F.2d at 540 (declining to expunge arrest record where petitioner feared he might be asked to explain the circumstances surrounding his arrest to an employer). 19 During her deposition, the petitioner identified a number of jobs for which the petitioner believes she was told she was not being hired because of her criminal record. (Dep. Tr. 89:5-90:9; see generally Dep. Tr ) The petitioner applied to all of those jobs in 2013 or later. The petitioner has identified no job to which she applied before 2013 and for which she was told she was not being hired because of her criminal record. Moreover, as discussed in the Statement of Facts, only a handful of these employers actually told the petitioner that she was not being hired because of her record. 20 It is not clear that petitioner s concerns about jobs outside of the nursing industry are well-founded. As another court in this district recently recognized, New York State Law prohibits denying employment unless there is a direct relationship to the offense of conviction. See N.Y. Exec. Law 296(15); N.Y. Correct. Law 750 to 753. Even then, the employer must consider: time elapsed since the offense, proof of rehabilitation or good conduct, age, and other factors. See N.Y. Correct. Law 753; N.Y. Corrections Law, Article 23-A. Libereros v. United States, No. 14-MC-266 (SJ), 2014 WL , at *1 (E.D.N.Y. June 13, 2014). 21

24 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 24 of 25 PageID #: 63 II. THIS COURT LACKS THE AUTHORITY TO ISSUE A CERTIFICATE OF REHABILITATION On July 28, 2015, this Court ordered that the government provide its view as to whether the Court has authority to enter a certificate of rehabilitation in lieu of expungment, and if so, the appropriateness of entering such a certificate in this case. (Order, July 28, 2015.) This Court lacks the authority to enter such a certificate. A certificate of rehabilitation is a generic term for a remedy that some states make available to individuals with a criminal record to lessen the consequences of that record. For example, New York statutory law allows New York State courts or the New York State Board of Parole to issue Certificates of Relief from Disabilities and Certificates of Good Conduct, both of which certificates create a presumption of rehabilitation in regard to the offense or offenses specified therein. Libereros v. United States, No. 14-MC-266 (SJ), 2014 WL , at *1 n.4 (E.D.N.Y. June 13, 2014); see N.Y. Corr. L , 753(2). The petitioner actually applied for a certificate of rehabilitation from New York State last year, and her application was denied in January (Dep. Tr. 87:9-21.) The government is aware of no provision in the U.S. Constitution or federal law that authorizes this Court to issue a certificate of rehabilitation with respect to the petitioner s federal convictions. Because New York [State] cannot direct a federal criminal court to afford a remedy not provided by federal law, it is well-settled that a federal court in New York cannot issue New York State certificates of relief or good conduct. United States v. Da Grossa, 446 F.2d 902 (2d Cir. 1971); accord Libereros, 2014 WL at *1 (citing Da Grossa); United States v. Reich, No. 04-CR-587 (NGG), 2007 WL , at * 1 (E.D.N.Y. Sept. 28, 2007) ( Under the clear law of this Circuit, federal courts may not 22

25 Case 1:15-mc JG Document 8 Filed 09/02/15 Page 25 of 25 PageID #: 64 relieve civil disabilities under Section 702. ). And issuing such a certificate does not fall within the ancillary jurisdiction of a federal court, for the same reasons discussed above in the context of a court s jurisdiction to expunge a conviction. See supra Argument Part I.A; see generally Kokkonen, 511 U.S. at (federal courts possess only that power authorized by Constitution and statute ). The power to order a third party, such as the Executive branch or a private employer, to act in a certain way with respect to future interactions with the petitioner is far afield from any power necessary to enable a court to function successfully. Id. at In sum, absent a source of authority for issuing a certificate of rehabilitation, this Court lacks the power to issue one. CONCLUSION For the foregoing reasons, the petitioner s motion to expunge should be denied and the Court should not issue a certificate of rehabilitation. Dated: Brooklyn, New York September 2, 2015 Respectfully submitted, KELLY T. CURRIE Acting United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York By: /s/ David K. Kessler David K. Kessler Assistant United States Attorney (718)