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United States v. Allen

United States District Court, E.D. North Carolina, Southern Division

October 28, 2014


Decided: October 27, 2014.

Page 534


Robert B. Jones, Jr., United States Magistrate Judge.

This matter comes before the court on the motion of Petitioner Marian O'Grady Allen (" Petitioner" ) to expunge her criminal record -- an arrest for, and charge of, marijuana possession in violation of 21 U.S.C. § 844. [DE-1]. The United States of America (" Respondent" ) opposes the motion. The court entered an order inviting the parties to submit additional briefing in support of their respective motions, but neither party submitted supplemental briefs. [DE-9]. Subsequently, the court held an evidentiary hearing during which Respondent appeared and Petitioner appeared and testified. [DE-11]. Thus, the matter is ripe for ruling. For the reasons set forth below, Petitioner's motion is denied.

The motion requires consideration of two issues: (1) whether federal ancillary jurisdiction extends to a claim for expungement upon equitable grounds where defendant consented to the jurisdiction of the Magistrate Judge, was ultimately discharged from probation and the proceedings of which were dismissed without the entry of a judgment of conviction in accordance with 18 U.S.C. § 3607, and (2) whether the court, having ancillary jurisdiction, should exercise it under the circumstances of this case. While the court concludes it has ancillary jurisdiction over this proceeding, upon balance of the equities in this case, the court denies Petitioner's motion.


On September 9, 1998 [DE-1], Petitioner was charged by way of a Criminal Information for unlawfully, knowingly and intentionally possessing an amount of marijuana, in violation of 21 U.S.C. § 844(a) (" Count One" ) on or about August 22, 1998. Id. According to court documents, Petitioner's date of birth is March 15, 1966, making her 32 years of age at the time of the offense. Id. Petitioner consented to proceed before a United States Magistrate Judge for her trial, judgement and sentencing [DE-2], and on September 9, 1998, Petitioner entered a plea of guilty to the charge and was subsequently found guilty. [DE-3]. Because Petitioner had not, prior to the commission of the offense, been convicted of violating a federal or state law relating to controlled substances, and had not previously been the subject of a disposition under 21 U.S.C. § 844, the court ordered that Petitioner be placed on probation as provided in 18 U.S.C. § 3607 for a period of 12 months, without a judgment of conviction first being entered; ordered that Petitioner participate in a drug education and/or treatment program and undergo drug testing if ordered to do so by a supervising probation officer; and ordered that Petitioner pay a fine of $1000.00. See Order of Probation [DE-3]. On September 13, 1999, the court found that Petitioner had complied with the terms of the Order of Probation [DE-3] and that no violation had occurred. Order of Dismissal [DE-4]. Accordingly, pursuant to 18 U.S.C. § 3607(a), the court discharged Petitioner from probation and dismissed those proceedings under which probation had been ordered. Id. No judgment of conviction was entered against Petitioner.

On July 18, 2013, Petitioner, by and through her counsel, filed a Motion for Expungement (" Motion" ) pursuant to the

Page 535

Fifth Amendment to the United States Constitution, 18 U.S.C. § 3607,[1] and 18 U.S.C. § 3231,[2] seeking an order removing from all official records all references to her arrest and the institution of criminal proceedings against her for marijuana possession, and the results thereof. Pl.'s Mot. [DE-6] at 1.

According to Petitioner's Motion, as a result of an economic downturn, Petitioner returned to school at a local community college to study occupational therapy in order to find employment and support her family. Decl. [DE-6-2] ¶ ¶ 10, 12, 13. According to Petitioner, one of her instructors informed her that in order to secure employment she would have to provide a criminal background check to any potential employer. Id. ¶ 15. Petitioner states further that her instructors told her that she would not be able to gain employment in

Page 536

her chosen field if she were unable to have the marijuana arrest and charge removed from her criminal record. Id. ¶ 17.

Thereafter, Petitioner paid for a criminal background check, the results of which she has attached to her Motion in a document entitled Federal Criminal Nationwide Results from [DE-6-1]; [DE-6-2] ¶ 16. The criminal background check correctly identifies Petitioner by name and provides the correct case number. [DE-6-1]. The document correctly indicates the charge against Petitioner to be a misdemeanor marijuana possession charge and that the case has been disposed. The report appears to indicate no plea was entered, that there was a verdict of guilty and that Petitioner received a sentence of special probation under " Rule 3607" with special conditions and a $1000 fine. Id. The report indicates however that Petitioner was convicted of misdemeanor marijuana possession. Id. The focus of Petitioner's motion is the irregularities in the report created by the third-party background reporting service; nothing in the court's records indicates any error.

On July 23, 2013, the Respondent submitted the Government's Response to Motion for Expungement (" Response" ) [DE-8], stating that " [w]hile the facts as advanced by [Petitioner] present a sympathetic plea for expungement, the case law seems quite opposed to the requested relief and places a burden of proof on [Petitioner] she cannot meet." Resp. [DE-8] at 1.

On September 25, 2014, the court held an evidentiary hearing on the Motion, at which Petitioner appeared and testified. At the hearing, Petitioner and her counsel shifted the focus of the claim for expungement from the inaccuracies in the criminal background report by to asking the court to expunge its (accurate) records on the equitable ground that the record has prevented Petitioner from obtaining a better job in her chosen field of occupational therapy. Id. Petitioner testified that she has a Bachelor of Arts degree from the University of North Carolina at Chapel Hill and that she completed an Occupational Therapy Assistant program at Cape Fear Community College in 2013. Id. Petitioner further testified that she currently resides in Hampstead, North Carolina, where she is employed as a pro re nata or " on call" Occupational Therapy Assistant. Id. Petitioner stated that her family needs her to earn more money because her husband's construction company has been struggling financially for several years. Id. Petitioner testified that her criminal record has prevented her from finding full time work as an Occupational Therapy Assistant. Id. Counsel for Petitioner reported at the hearing that he wrote a letter to informing them that they had incorrectly reported Petitioner's record as a conviction instead of a dismissal. Id. Petitioner then testified that she has not followed up with to learn whether counsel's request for correction had resulted in the report being corrected. Id. Petitioner further stated that she has not attempted to contact another background company to run an alternate criminal background check. Id. When asked if she had been denied employment due to her criminal record, Petitioner said that she had applied for jobs but has not heard back from potential employers about being hired. Id.


A. The Authority of the Magistrate Judge to Rule on ...

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