Opinion
Case No. 2:09-CR-00118
05-09-2014
UNITED STATES OF AMERICA, Plaintiff, v. CHARLES E. TOWNSEND, Defendant.
JUDGE ALGENON L. MARBLEY
OPINION & ORDER
This matter is before the Court on Defendant Charles E. Townsend's Motion for Reduction in Monthly Restitution Payments (Doc. 30) and Motion to Seal (Doc. 31). Defendant seeks to reduce his monthly payments from $75 per month to $40 per month. (Doc. 30 at 1). Defendant also asks to have his case judicially sealed, in order to avoid the negative impact his conviction has had on his ability to obtain gainful employment. (Doc. 31 at 1). The United States opposes both Motions. For the reasons set forth herein, Defendant's Motions are GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
On September 11, 2009, Defendant pleaded guilty to one count of money laundering, in violation of 18 U.S.C. §§ 1957 & 2. (Doc. 9, Doc. 10). On March 19, 2010, Defendant was sentenced to one day incarceration, three years supervised release, a $100 special assessment, and restitution in the amount of $333,206.98. (Doc. 22). Judgment was entered April 7. (Id.).
On February 2, 2012, Defendant, through counsel, moved for early termination of probation, on the grounds that he had complied fully with all conditions of release, and never missed a restitution payment. (Doc. 24 at 2). The United States did not oppose that motion (see Doc. 25), and the Court, citing Defendant's "exemplary record of compliance with his terms of supervised release," granted the motion on March 22, 2012 (Doc. 26).
II. MOTION FOR REDUCTION IN RESTITUTION PAYMENTS
Defendant's first pro se Motion requests a reduction in monthly restitution payments, from $75 per month to $40 per month. (Doc. 30). Defendant alleges that the recent birth of his son, and his "inability to obtain meaningful employment" have adversely impacted his ability to make his payments at the current rate. (Id. at 1). Defendant submits that all previous payments have been made on time and in compliance with Court Order. (Id.).
The United States opposes. (Doc. 33). It notes that, as of January 2014, Defendant has satisfied only $5,045 of his $333,207 restitution obligation. (Id. at 1). Thus, the United States "does not believe that it would be wise to reduce [D]efendant's $75 monthly obligation." (Id.).
Under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A et seq. ("MVRA"), the Court has authority to adjust Defendant's payment schedule, pursuant to 18 U.S.C. § 3664(k). Under this section, the Court can order adjustment of payment schedule if the Defendant demonstrates, by a preponderance of the evidence, that there has been a "material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution," and that Defendant's current economic condition warrants such an adjustment, as the interests of justice require. Id. §§ 3664(e), (k); see United States v. Baird, No. 3:03-CR-91, 2009 WL 5170198, at *3 (E.D. Tenn. Dec. 17, 2009).
Defendant insists that the recent birth of his son, as well as his difficulty in finding "meaningful employment," justifying the almost-50% reduction in monthly restitution payments. The threshold showing necessary to invoke §3664(k) requires some evidence demonstrating a material change in economic circumstances, and ability to pay, in order to merit a modification. See United States v. Hill, 205 F.3d 1342, at *1 (6th Cir. Sept. 28, 1999) (affirming district court's denial of motion to defer payment of restitution, since the defendant "did not attach any proof regarding his financial status or current income to the motion.").
Defendant has carried his burden enough to satisfy the Court that some reduction in his payments is warranted. Defendant has demonstrated a change in his circumstances - that is, the birth of his son - that is material, will affect his ability to pay restitution, and, in the interests of justice, justifies at least a small reduction in monthly payments. Accordingly, Defendant's Motion for Reduction in Monthly Restitution Payments (Doc. 30) is GRANTED IN PART. Defendant's monthly payments are hereby reduced from $75 per month to $50 per month.
III.MOTION TO SEAL CASE
Defendant's second pro se Motion seeks to have his case "judicially sealed." (Doc. 31 at 1). Defendant argues that as a consequence of his conviction, he has "found it impossible to obtain meaningful employment that would allow [him] to utilize [his] education and experience." (Id.). Defendant asserts that he has received job offers on at least two occasions which were subsequently withdrawn when prospective employers learned of his criminal record. (Id.). Defendant also alleges that he has experienced "housing exclusions" as a result of his conviction. (Id.). Defendant concludes that he has taken significant steps to improve his life and contribute to the community, but that his record of conviction stands as an insurmountable hurdle to his ability to succeed. (Id.). Defendant further directs the Court, by comparison, to Ohio Senate Bill Am. Sub. S.B. 337, effective September 28, 2012, which served generally "to expand eligibility for the sealing of criminal records" and to create a process for obtaining a "certificate of qualification for employment" for past convicted felons seeking employment.
On January 30, 2014, Defendant renewed his Motion, again arguing that his efforts to "rebuild his life" have been stymied by the record of his conviction. (Doc. 34 at 1). In short, Defendant asserts that "[h]e committed the crime 11 years ago and is still being punished daily as a result of pleading guilty to the conviction." (Id.).
The United States opposes, on the grounds that it "in unaware of any authority short of a Presidential pardon . . . that might succeed in moving a convicted defendant into the sort of more favorable position a defendant might desire." (Doc. 32 at 1). In addition, the United States argues that, since Defendant's record has been public for four years, even sealing the record now would be "unlikely to achieve the sort of result [Defendant] evidently seeks." (Id.).
In response to Defendant's renewed request (Doc. 34), the United States renews its opposition, arguing that the sealing "is not warranted by either the facts or the law." (Doc. 35 at 1). More specifically, the United States insists that the sealing of court records is a "drastic step," which should occur only when "absolutely necessary and when justified by compelling reasons." (Id.) (citing In re Perrigo Co., 1218 F.3d 430, 447 (6th Cir. 1997)). A mere showing that the information is harmful to one's reputation, it argues, is insufficient. (Id.). In addition, the United States asserts that the Court of Appeals has held that federal courts lack ancillary jurisdiction to consider expungement motions directed to the executive branch, which maintains records of federal crimes. (Id. at 2) (citing United States v. Lucido, 612 F.3d 871, 875 (6th Cir. 2010). To the extent that Ohio S.B. 337 and O.R.C. § 2953.25 are applicable, the United States adds, Defendant has failed to comply with their procedural requirements. (Id.).
As this Court has explained, for a federal district court, "there is no distinction between sealing and expunging a criminal record." Cline v. United States, No. 2:93-CR-00094, 2009 WL 2475264, at *1 (S.D. Ohio Aug. 12, 2009) (Marbley, J.). In the Sixth Circuit "[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). Although the authority to expunge is left to the sound discretion of the trial court, "expungement power is narrow and appropriately used only in extreme circumstances." United States v. Robinson, No. 94-1945, 1996 WL 107129 at *1-2 (6th Cir. Mar. 8, 1996). The Court of Appeals in Robinson further explained that "federal courts have most readily invoked the expungement power with respect to illegal convictions, convictions under statutes later deemed unconstitutional, and convictions obtained through governmental misconduct. Conversely, courts have uniformly denied expunction requests regarding valid convictions." Id. at *2.
In this case, as in Cline, Defendant does not allege that his conviction was invalid. Rather, he seeks to have his case sealed so that he can more easily obtain employment. While Defendant's efforts are laudable, they do not create an "extreme circumstance" warranting the use of the Court's expungement power. See United States v. Lynum, No. 2:98-CR-4, 2006 WL 1804543 at *1 (S.D. Ohio June 28, 2006) (denying motion "requesting expungement so that [defendant] can more easily pursue her education and obtain employment.").
Although the Court is sympathetic to Defendant's plight, especially in light of his "exemplary record" on supervised release, his current hardship is unfortunately "a natural and predictable consequence of his legitimate felony conviction. As such, the Court has difficulty concluding that the Defendant's hardship outweighs the government's long-recognized interest in maintaining complete criminal records," which help promote effective law enforcement and meet the "compelling public need for an effective and workable criminal identification procedure." United States v. Wiley, 89 F. Supp. 2d 909, 912 (S.D. Ohio 1999) (internal quotation omitted). In short, the record is devoid of the "extraordinary or extreme circumstances that other courts have found sufficient to justify expungement." Id.
Accordingly, Defendant's Motion to Seal (Doc. 31, Doc. 34) is DENIED.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion for Reduction in Monthly Restitution Payments (Doc. 30) is GRANTED IN PART. Defendant's monthly payments are hereby reduced from $75 per month to $50 per month. Defendant's Motion to Seal (Doc. 31, Doc. 34) is DENIED.
IT IS SO ORDERED.
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ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE