Summary
Holding that voluntary dismissal of charges by the government alone does not compel expungement of a defendant's arrest record and citing to other courts outside the Ninth Circuit that have held the same.
Summary of this case from United States v. EverettOpinion
Case No. CR 05-00757 DDP
03-10-2014
UNITED STATES OF AMERICA, Plaintiff, v. JULIA DAVIS and BOBBY JOE DAVIS, Defendants.
ORDER DENYING PETITIONERS'S
MOTION TO EXPUNGE, SEAL AND
DESTROY ARREST RECORDS
[Docket No. 87 & 88]
Presently before the Court is Petitioners's Motion to Expunge, Seal and Destroy Arrest Records (the "Motion"). For the reasons stated in this order, Petitioners's Motion is DENIED. I. Factual Background
The underlying factual and procedural history of this case and related civil and criminal litigation is lengthy and convoluted. The Court has summarized what appear to be the relevant events here. In doing so, the Court has drawn both from the parties' submissions on this Motion and Judge Virginia Phillips' Summary Judgment Order in related civil litigation. Judge Phillips' Order was used for additional clarity and completeness in this Court's understanding of the facts.
Petitioners Julia and BJ Davis are a married couple. BJ Davis is a producing member of the Academy of Television Arts and Sciences. (Docket No. 88, at 14.) Julia Davis is a former federal employee for the Department of Homeland Security ("DHS") and the Bureau of Customs and Border Protection at the Port of San Ysidro. (Id. at 34.)
This Court refers to the Petitioners Julia and BJ Davis by their first names for clarity. By doing so, the Court in no way intends to disrespect Petitioners.
While serving as an employee of DHS, Julia was the target of sexual harassment by her supervisor. (Id.) When she reported this harassment to Port management, she was told an investigation would be launched into the matter, which apparently never happened. (Id.) On an unspecified date, Julia filed a complaint against DHS with the Equal Employment Opportunity Commission ("EEOC"). (Id.) In June 2005, Julia prevailed on the EEOC action and received over $225,000 in damages. (Id.) DHS was ordered to develop sexual harassment policies and procedures, as well as establish a training program on the topic. (Id. at 35.)
In June 2004, Julia sent the Port Director a letter expressing her concerns over the removal of metal detectors and X-ray machines as well the reduction in security staff at the Port. (Judge Phillips' Order for Partial Summary Judgment, Case No. 07-CV-00481(VAP)(OPx) ("Judge Phillips' Order"), at 16.) Later that same month, Julia sent the DHS Office of the Inspector General ("OIG") a letter regarding her observation of an Assistant Port Director instructing an agent to falsify an individual's nationality on various documents. (Id.) On July 5, 2004, Julia wrote a letter to the Federal Investigation Bureau ("FBI") reporting an unusually high number of individuals from special interest countries entering the United States through the Port over the July 4th holiday. (Id. at 17.) A reporter for the Los Angeles Times received this letter and confronted the CBP Commissioner about it at a press conference. (Id.) It was around that same time that the CBP launched its own investigation into Julia, which Julia believed to be in retaliation for her complaints regarding sexual harassment in the workplace and her reporting of security issues at the Port. (Id.)
In January 2005, Agent Jeffrey Deal ("Agent Deal") began investigating both Julia and BJ for charges of potential marriage fraud based on information he received from the CBP Office of the General Counsel. (Id. at 22.) After his investigation, Agent Deal concluded that Julia paid BJ $10,000 to marry her and subsequently filed an immigration petition with the United States. (Id.)
As the result of Agent Deal's investigation, the U.S. Attorney charged Julia with conspiracy, unlawful procurement of citizenship as well as aiding and abetting in the unlawful procurement of citizenship. (Id.) Furthermore, the U.S. Attorney charged BJ with conspiracy and unlawful procurement of citizenship. (Id. at 23.) On August 9, 2005, Julia and BJ were indicted by a federal grand jury on these charges and warrants for their arrests were issued. (Id.) Agents Deal and Herbert Kaufer ("Agent Kaufer") sought to use the Immigration and Customs Enforcement ("ICE") Special Response Team ("SRT") to assist in executing the arrest warrants, citing as their rationale the fact that Julia was a former federal officer and BJ's alleged prior conviction for first-degree murder. (Id.)
On August 10, 2005, ten DHS Internal Affairs Agents, a U.S. Marshal, seventeen SRT members, eight unmarked cars and a Blackhawk helicopter arrived at the Davis residence to execute arrest warrants for both Petitioners. (Docket No. 88, at 101.) When authorities conducted this search, neither Julia nor BJ was home. (Id.) However, Mykola Kot and Galyna Kovalska, Julia's parents, were present at the Davis home during the search. (Id.) While conducting their search of the Davis home, ICE Agents seized one Remington shotgun and seven rounds of ammunition found in the master bedroom. (Judge Phillips' Order, at 25.)
The couple eventually self-surrendered to U.S. Marshal custody on August 16, 2005 and were released later that day. (Gov't Opp'n, at 3.) On March 3, 2006, the government moved to dismiss all federal charges against both Julia and BJ without prejudice. (Id.) A few days later, on March 7, 2006, this Court granted the government's application for dismissal. (Id.) Aside from post-dismissal actions regarding appearance bonds and protective orders, there have been no other substantive filings in this case until Petitioners filed the instant motion on August 5, 2013. (Id.)
Meanwhile, charges were also brought against the Davises in state court. (Judge Phillips' Order, at 27) On December 9, 2005, Agent Wong mailed a letter to a Supervisory Deputy District Attorney in San Bernardino County. (Id.) This letter informed the District Attorney that agents seized a loaded Remington shotgun from the Davis home during the search on August 5, 2013. (Id.) It also stated that this was a probable violation of the California Penal Code because BJ was a convicted felon not permitted to possess a firearm. (Id. at 27-28.)
On January 25, 2006, the Government filed a felony complaint state court, charging both BJ and Julia with violating California Penal Code § 12021(a)(1) after both were purportedly convicted of manslaughter on June 21, 1974 in Louisiana. (Id. at 29.) On November 2, 2006, the Superior Court granted both Julia and BJ's petitions to seal and destroy records of this arrest. (Id.) Furthermore, both Julia and BJ were declared factually innocent of the state charges pursuant to Cal. Penal Code § 851.8. (Id.)
Though it is unclear from the record before the Court what happened in the state case, the Court presumes that Petitioners' state criminal charges were dismissed or that Julia and BJ were acquitted, as the state court granted their Motion for Expungement as well as declared both Julia and BJ factually innocent.
After their federal and state criminal charges were dismissed, the Davises filed a civil suit on April 23, 2007 against the two investigating agents and the United States, Case No. 07-CV-00481(VAP)(OPx), Julia & Bobby Joe Davis v. U.S.A. & Jeffrey Deal. (Gov't Opp'n. at 3.) After years of litigation, the parties reached an undisclosed settlement agreement on February 18, 2010. (Id. at 4.) Judge Virginia A. Phillips dismissed the action on February 19, 2010. (Id.)
Petitioners now seek expungement, along with the destruction of records pertaining to their arrests on August 16, 2005. Petitioners further seek to have the records pertaining to the grand jury indictment destroyed. This indictment charged Julia with conspiracy, 18 U.S.C. § 371; unlawful procurement of citizenship, 18 U.S.C. § 1425(b); and aiding and abetting unlawful procurement of citizenship, 18 U.S.C. §§ 2(a), 1425(b). The indictment further charged BJ with conspiracy, 18 U.S.C. § 371 and unlawful procurement of citizenship, 18 U.S.C. 1425(b). (Docket No. 1)
II. Legal Standard
Defendants seeking expungement are essentially requesting "the judicial editing of history." United States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004) (citing Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972)). When defendants move to have their records expunged they are requesting that the court destroy or seal the records of their conviction and not the actual conviction itself. Crowell, 374 F.3d at 792; see also United States v. Sweeney, 915 F.2d 1260, 1262 (9th Cir. 1990) ("[A]n expunction order is similar to an order not to report a conviction."). Without more, expungement "does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty." Id. (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 121-22 (1983)).
In Crowell, the Ninth Circuit recognized two sources of authority by which federal courts may expunge criminal records: statutes and the federal court's inherent authority. Crowell, 374 F.3d at 792. By statutes, Congress has established certain conditions by which the courts may expunge federal criminal records but only in specific cases. Id. For example, Congress has declared that those who are convicted and sentenced to probation for violating the Controlled Substances Act, 21 U.S.C. § 844, and were less than twenty-one years of age at the time the offense was committed, may be granted expungement. Id. Under these circumstances, Congress has not only placed specific conditions on expungement but has also established the legal effect of such expungement. Id. at 792-93.
Congress has not expressly granted the federal courts a general power to expunge criminal records. Id. at 793. The Ninth Circuit has held that, in criminal proceedings, federal courts possess ancillary jurisdiction to expunge criminal records. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). Ancillary jurisdiction flows from the congressional grant of jurisdiction to hear cases involving offenses against the United States under 18 U.S.C. § 3231. Id. The ancillary jurisdiction of the federal courts is "limited to expunging the records of an unlawful arrest or conviction, or to correcting a clerical error." Id. The reason for this is that "the expungement of the record of a valid arrest and conviction usurps the powers of the framers of the Constitution allocated to Congress, the Executive, and the states." Id. However, "even where a conviction has been held unlawful and vacated, expungement remains a 'narrow, extraordinary exception,' one 'appropriately used only in extreme circumstances.'" Crowell, 374 F.3d at 796 (quoting Smith, 940 F.2d 395, 396 (9th Cir. 1991)(per curiam)).
III. Discussion
A. Unlawful Arrest
This Court's ancillary jurisdiction is limited to expunging unlawful arrests or to correcting clerical errors. Sumner, 226 F.3d at 1014. Petitioners have not alleged that the records they seek to be expunged resulted from any clerical error; therefore, this Court must determine whether expungement is appropriate because Petitioners's arrest was unlawful. Id. Unlawful arrest claims are cognizable under 42 U.S.C. § 1983 as violations of the Fourth Amendment provided the arrests were made without probable cause or other justification. Dubner v. City & Cnty. of S.F., 266 F.3d 959, 966 (9th Cir. 2001).
While Petitioners assert in their motion that their arrests by self-surrender on August 16, 2005, were deemed unlawful as the product of a "malicious prosecution and gross government misconduct" (Docket No. 88, at 7), there is no evidence showing this assertion to be true. Petitioners brought a civil suit against the United States that included claims for malicious prosecution and abuse of process. Though the civil suit left open the possibility that the manner in which the search warrant was executed on the Davis residence was unlawful as an abuse of process, there is no indication that either the grand jury indictment or Petitioners' eventual arrest by self-surrender was unlawful.
The only cognizable interest defendants have in grand jury proceedings is to have a "legally constituted grand jury make an informed and independent evaluation of the evidence to determine if there is probable cause." United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391 (9th Cir. 1983), cert. denied, 465 U.S. 1079. It is the function of the grand jury to determine whether the evidence presented in a specific case is sufficient to establish probable cause to believe that a crime was committed and that a specific individual committed that crime. Bracy v. United States, 435 U.S. 1301, 1302 (1978). Petitioners have not raised an issue as to the validity of their grand jury indictment. As a result, Petitioners have not shown that the warrant issued for their arrests was issued unlawfully. Nor have Petitioners shown that their arrest by self-surrender was unlawful. And while the civil case left open the possibility that the manner in which the August 2005 warrant was executed was unlawful, the parties settled the action before the legality of that search could be determined. Therefore, the Court concludes that Petitioners' have not shown that their arrests by self-surrender were unlawful, as probable cause to arrest and prosecute Petitioners existed. Therefore, Petitioners' Motion cannot be granted on the basis that their arrests in this case were unlawful.
B. Extraordinary Circumstances
As discussed above, Petitioner's arrests were not found to be unlawful and therefore cannot meet the Ninth Circuit's requirements for expungement. However, given the extent to which Petitioners argue the equities in this case, the Court will address them. Even when a petitioner's arrest has been deemed unlawful, expungement remains a "'narrow, extraordinary exception,' one 'appropriately used only in extreme circumstances.'" Crowell, 374 F.3d at 796 (quoting Smith, 940 F.2d 395, 396 (9th Cir. 1991)). Therefore, even if the Davises could show that their arrests were unlawful, they would also have to show "circumstances extraordinary and unusual enough [to] merit expungement" of their criminal records. Crowell, 374 F.3d at 796.
Even where expungement of judicial records is deemed appropriate, expungement of executive records may not be. While federal courts maintain control over judicial records (i.e., the grand jury indictment), Congress has directed the executive maintain particular records. See e.g. 28 U.S.C. § 534(a)(1)(1994) ("The Attorney General shall acquire, collect, classify and preserve identification, criminal identification, crime, and other records"). District courts do not control executive records through ancillary jurisdiction any more than the executive, through its pardon power, may order the expungement of judicial records. See United States v. Noonan, 906 F.2d 952 (3rd Cir. 1990). Therefore, records of Petitioners' arrests may not be the subject to expungement by this Court.
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In their Motion, Petitioners argue that the arrest records they wish to expunge would limit their future employment opportunities. (Docket No. 88, at 14). In doing so, Petitioners assert that Julia aspires to be an attorney while BJ "needs to continue to be a bondable and bankable" producer and member of the Academy of Television Arts and Sciences (the "Academy"). (Id.) Yet Petitioners fail to set forth any evidence demonstrating that their employment opportunities have in fact been negatively hindered by the records they seek to have expunged. To date, BJ continues to be a producing member of the Academy, and there is no indication that Julia has encountered any difficulty thus far in pursuing her potential career as an attorney.
Further, even if Petitioners had provided this Court with such documentation, the Ninth Circuit does not recognize employment problems resulting from criminal records as being "sufficient to outweigh the government's interest in maintaining criminal records." United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991). According to the Ninth Circuit, if it recognized employment problems as a proper reason to grant Petitioners' Motion, "expunction would no longer be the narrow, extraordinary exception, but a generally available remedy." Id. Nor is there any federal statute in which Congress has "empowered a district court to reopen a criminal case after its judgment has become final" for purposes of expunging a valid arrest record to "enhance a defendant's employment opportunities." Sumner, 226 F.3d at 1014. Therefore, the Court finds that Petitioners have not demonstrated that they are entitled to the "extraordinary remedy" of expungement.
C. Dismissal of Charges
While this Court recognizes that on March 7, 2006, the government dismissed its criminal complaint against Petitioners, this fact alone does not compel expungement of their arrest records. While the Ninth Circuit has yet to hear a case wherein the government voluntarily dismissed a criminal complaint against defendants now seeking expungement, other circuits have heard similar cases. The D.C. Circuit held that neither the dismissal of a complaint nor acquittal, without more, would justify the expungement of arrest records. Livingston v. U.S. Dep't of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985); see also United States v. Friesen, 853 F.2d 816 (10th Cir. 1988) (attorney acquitted on all counts of conspiracy to manufacture cocaine was not automatically entitled to expungement of records); United States v. Noonan, 906 F.2d 952 (3rd Cir. 1990) (person formally convicted was not entitled to expunction upon receiving presidential pardon); United States v. Linn, 513 F.2d 925 (10th Cir. 1975) (defendant acquitted of all counts against him by a jury was not entitled to expungement of his arrest records). Therefore, the fact that the government voluntarily dismissed its criminal complaint against Petitioners, without more, is not a sufficient basis for granting Petitioners' motion for expungement.
IV. Conclusion
For the foregoing reasons, Petitioners' Motion Expunge, Seal and Destroy is DENIED. IT IS SO ORDERED.
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DEAN D. PREGERSON
United States District Judge