Opinion
Criminal No. 2:04cr29-DCB.
March 14, 2006
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on James Sizemore's Motion for Expungement [ docket entry no. 87]. Having reviewed the Motion, response by the government, applicable statutory and case law and being otherwise fully advised as to the premises, the Court finds as follows:
PROCEDURAL HISTORY
James Sizemore, a former Mississippi Highway Safety Patrol trooper, was indicted by a Southern District of Mississippi Grand Jury on November 5, 2004, for allegedly assaulting an individual. Sizemore was arraigned on November 16, 2004, and his trial began on May 9, 2005. After the close of the evidence, this Court denied the defendant's Rule 29 request for a judgment of acquittal and submitted the case to the jury. Sizemore was acquitted by the jury on May 13, 2005.
In the pending motion, Sizemore asks the Court to order a number of different governmental entities to expunge all records they hold which refer to his investigation, arrest or trial.
DISCUSSION
There are three separate standards that must be examined in this matter depending upon the agency or governmental branch which is being asked to expunge its records. Sizemore has asked this Court to expunge: (1) the Court's own records; (2) the Lawrence County law enforcement and court records; and (3) the Federal Bureau of Investigation's and presumably the Department of Justice's records. Each category of records will be examined in turn.
(1) The Court's Own Records
The Fifth Circuit has recognized that a court has inherent supervisory powers over its own records. See Sealed Appellant v. Sealed Apellee, 130 F.3d 695, 697 n. 2 (5th Cir. 1997). Thus, a "modification of [the court's own] records is akin to a request to modify the judgment." Id. at 698 n. 6. It is left to the Court's discretion whether or not to expunge its own records.See id. at 700 (noting that where an un-expunged arrest record is alleged to interfere with the defendant's career, the court may properly expunge its own records).
Sizemore, however, has offered no justification to the Court for granting his expungement request. Instead, he has stated only that he was acquitted of the crime for which he had been indicted. Therefore, his request shall be denied with regard to the judicial papers relating to his arrest and trial in the Southern District of Mississippi. (2) The Lawrence County Records
In Rogers v. Slaughter, 469 F.2d 1084 (5th Cir. 1972), the plaintiff had been arrested and convicted of violating a state statute criminalizing the discharge of a firearm at a public school. Id. at 1084-85. That conviction was declared unconstitutional by the district court on the ground that the plaintiff had been denied his right to counsel. Id. at 1085. Moreover, the lower court also ordered that the state expunge from its records any reference to the plaintiff's arrest, trial or conviction. Id.
On appeal in which only the expungement matter was challenged, the Fifth Circuit reversed. The court stated:
[T]he Court's privilege to expunge matters of public record is one of exceedingly narrow scope. Public policy requires here that the retention of records of the arrest and of the subsequent proceedings be left to the discretion of the appropriate authorities. The judicial editing of history is likely to produce greater harm than that sought to be corrected.Rogers, 469 F.2d at 1085 (internal citations omitted). Thus, a lower federal court is generally prohibited "from ordering the editing of public records in the general case." Cavett v. Ellis, 578 F.2d 567, 568 (5th Cir. 1978) (citing Rogers v. Slaughter, 469 F.2d 1084) (5th Cir. 1972)).
In this case, Sizemore was not prosecuted or convicted in the state court system; however, the principles as set forth inRogers should still apply with equal force. Mississippi has no statutory authorization for a court to expunge state records regarding an arrest or investigation in the event that the arrestee is acquitted. Therefore, in the absence of such a statute or some constitutional injury beyond the defendant's mere arrest, Sizemore is not entitled to an order of expungement with regard to state-held records.
Mississippi does have a statute which mandates court expunction of records under certain conditions:
Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
Miss. Code Ann. 99-15-26(5). This statute, however, only applies in situations were the case was either (1) dismissed, (2) dropped or (3) there was no disposition. Sizemore's case, at least as it was disposed of in the federal system, was not dismissed, dropped or left unresolved. Furthermore, this statute applies to the state courts and does not necessarily empower or require this Court to order an expungement even if one of the three qualifiers for the statute's applicability had been met.
See the following section, infra, for a discussion on the use of a constitutional injury for standing to seek an order of expungement.
(3) Executive Branch Records
In Sealed Appellant, the Fifth Circuit warned that "expungement should rarely, if ever, be employed by the courts against executive agencies." 130 F.3d at 698. The court reasoned that ordered expungement remedies are burdensome on the executive, "in terms of both money and lost information that could be useful in the future." Id. In his request for expungement, Sizemore claims that he is properly proceeding pursuant to 28 U.S.C. § 534. That section, however, encapsulates a mandate by Congress for the Attorney General to preserve and maintain criminal records. See Sealed Appellant, 130 F.3d at 698 (noting Congress' express desire to maintain all criminal records). Moreover, there is no constitutional or federal statutory right to expungement of executive branch records in this case. Id. at 699-700.
While the Fifth Circuit noted that an expungement order could be entered against another governmental branch in extreme circumstances, to have standing to pursue such a remedy, "the party seeking expungement . . . must assert an affirmative rights violation by the executive actors holding the records of the overturned conviction." Id. at 700 In his request, Sizemore fails to allege an injury at all, describing only that he was arrested and subsequently acquitted. "[A]n acquittal, standing alone, is not in itself sufficient to warrant an expunction of an arrest record." Id. (quoting United States v. Linn, 513 F.2d 925, 927-28) (10th Cir. 1975)).
See United States v. McLeod, 385 F.2d 734, 750 (5th Cir. 1967) (ordering expungement in a civil rights case where state officials were arresting blacks with the intention of preventing them from voting).
Inasmuch as Sizemore has failed to allege any justification for granting his request other that the fact that he was ultimately acquitted, this Court declines to issue an order against the executive branch mandating expungement.
CONCLUSION
Based on the reasoning and authority set forth above, the Court finds that the defendant's Motion for Expungement should be denied. Accordingly,
IT IS HEREBY ORDERED that James Sizemore's Motion for Expungement [ docket entry no. 87] is DENIED.
SO ORDERED.