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UNITED STATES v. JANIK

October 26, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
MITCHELL S. JANIK, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 ORDER

 Before the court is petitioner Mitchell S. Janik's ("Janik") motion for expungement of record of an eleven-year-old case. For the following reasons, the motion is denied.

 FACTS

 Originally arrested by local police, Janik's state charges were later dropped. On October 27, 1981 a federal grand jury indicted Janik, a deputy sheriff in Cook County, Illinois, for possessing two unregistered guns (a submachine gun and a sawed-off shotgun), in violation of Title 26, United States Code § 5861(d).

 In deciding this motion, the court has considered the thorough review by the Seventh Circuit of the evidence at the bench trial on January 18, 1983 before Judge Susan Getzendanner, who found Janik guilty and sentenced him to eight months in prison for possession of the submachine gun, and sentenced him five years probation and imposed a $ 2,000 fine for possession of the sawed-off shotgun.

 Janik appealed his conviction and raised two issues: whether the proceedings violated the Speedy Trial Act, Title 18, United States Code § 3161 et seq., and whether the seizure of the guns violated the Fourth Amendment. The Seventh Circuit found no violation of the Fourth Amendment but did find a violation of the Speedy Trial Act. The court reversed Janik's conviction and remanded the case with instructions to determine whether Janik's case should be dismissed with or without prejudice as a sanction for the Speedy Trial Act violation. The Seventh Circuit directed the lower court to balance the fact that two years had passed since the arraignment with the following factors in favor of dismissing without prejudice: "the defendant never manifested any desire to see the proceeding move along any faster than it was; much of the delay was due to a clerical oversight . . .; his offense was a grave one, punishable by a maximum prison sentence of ten years . . . and he was found guilty of committing two such offenses." United States v. Janik, 723 F.2d 537, 546-47 (7th Cir. 1983). The Seventh Circuit observed that there was enough evidence to convict Janik beyond a reasonable doubt of possessing an unregistered automatic weapon and an unregistered sawed-off shotgun, both capable of being operated. Janik, 723 F.2d at 549. The case was reassigned from Judge Getzendanner, and on June 21, 1984, Judge McMillen dismissed the case without prejudice. The defendant was not reindicted. Eight years later, the defendant filed this motion for expungement of records.

 Janik prays that this court direct the United States and its agencies to expunge all records of indictment and court proceedings of Mitchell S. Janik together with all photographs, fingerprints, and all other records of identification, and for such other relief as this court deems fit. Janik asks this court alternatively to consider equitable relief short of expunction that would allow the United States to keep its records, but would not allow it to disseminate the records in a manner that destroys or dampens his opportunities for employment and economic advancement.

 DISCUSSION

 Petitioner's motion lacks any explanation of the jurisdictional basis for deciding the motion following dismissal by Judge McMillen of the indictment more than eight years ago. "Being a defendant in a criminal prosecution does not forever license litigation against the government . . . ." Scruggs v. United States, 929 F.2d 305 (7th Cir. 1991). The district court accordingly lacks jurisdiction to hear this matter as part of the criminal case after the case has been dismissed and closed. Id. at 306; Diamond v. United States, 649 F.2d 496 (7th Cir. 1981).

 Additionally, the Seventh Circuit has rejected the idea that jurisdiction can be based upon the "inherent" power of judges to order the executive branch to expunge records, and no statute authorizes expunction. Scruggs. 929 F.2d at 306; see also United States v. Scott, 793 F.2d 117 (5th Cir. 1986) (court expressed "grave doubts" about whether district court has authority under Article III of the Constitution to order expungement as a form of relief). Accordingly, the court lacks jurisdiction to consider Janik's motion to direct the executive branch to expunge its records. The motion is, therefore, denied.

 The government appropriately argues that even assuming for the sake of argument that this court retains jurisdiction, Janik's case does not present the extraordinary circumstances which might justify expunction. The court agrees. Courts which have considered expunction acknowledge that expungement is a very narrow power exercised only in "extraordinary circumstances." United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991). Cases in which courts have found "extraordinary circumstances" and have ordered expungement include:

 mass arrests without probable cause, Sullivan v. Murphy, 156 U.S. App. D.C. 28, 478 F.2d 938, 968-73 (D.C. Cir.), cert. denied, 414 U.S. 880, 94 S. Ct. 162, 38 L. Ed. 2d 125 (1973), arrests under statutes later held unconstitutional, Kowall v. United States, 53 F.R.D. 211 (W.D. Mich. 1971), and arrests found to have been for the ...


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