UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 07-cr-00169-1 (CKK) RENE LILLICOTCH,

Defendant.

MEMORANDUM OPINION (May 16, 2019)

Pending before this Court is pro se Defendant Rene Lillicotch’s [28] March 20, 2019 Letter

to the Court requesting an expungement of his conviction, which is considered by this Court as a

Motion to Expunge Criminal Record (“Def.’s Mot.”); the United States’ [32] Opposition to

Defendant’s Motion (“Govt. Opp’n”); and Defendant’s [34] April 26, 2019 Letter to the Court,

which is considered as Defendant’s Reply (“Def.’s Reply”) to the United States’ Opposition.

Defendant Rene Lillicotch (“Defendant” or “Mr. Lillicotch”) indicates that he is moving to Florida

to care for family and will be looking for employment so that he can support his wife, but he has

been unable to “[get] through the[ ] felony conviction requirements phase” even though he had not

engaged in any criminal conduct since his plea was taken in 2008 by this Court. Def.’s Mot., ECF

No. 28, at 1. Mr. Lillicotch requests that this Court expunge his criminal record, and as grounds

therefore, he notes: (1) his cooperation with law enforcement during the investigation that resulted

in his conviction; (2) his exemplary performance while on probation, which resulted in early

termination of probation; and (3) his vow to “live by the mind[s]et that [he] will be one of the most

trusted and law[-]abiding citizens in the United States.” Id. Upon review of relevant legal

authorities and the pleadings made by the parties, the Court shall DENY Mr. Lillicotch’s [28]

1 Motion to Expunge Criminal Record.

I. BACKGROUND

Mr. Lillicotch was charged by an information filed in this Court on June 29, 2007, with

one count of Conspiracy to Defraud the United States, in violation of

. See

Information, ECF No. 1. On July 25, 2007, Mr. Lillicotch entered a guilty plea, and as part of his

plea agreement, he agreed to cooperate in the investigation of other individuals and to pay

restitution, jointly and severally, with his co-conspirators. See Plea Agreement, ECF No. 4, at 2-

3. In exchange, the Government consented to Defendant’s release pending sentencing, did not

oppose Defendant’s request for a downward departure in the Sentencing Guidelines, and requested

a sentence at the low end of the Guideline range. See

. On August 7, 2008, Mr. Lillicotch

was sentenced to term of sixty months of probation, with sixty days of imprisonment to be served

on weekends during the first three months of probation, and he was ordered to pay $84,433.00 in

restitution. See Judgment, ECF No. 18. Mr. Lillicotch’s supervised probation period was

terminated early, in September 2012, pursuant to a recommendation by the Probation Office in

which this Court concurred. Mr. Lillicotch now moves to expunge his criminal record.

Defendant’s Motion to Expunge Criminal Record comes approximately seven years after the

termination of his probation, and it is opposed by the Government.

II. ANALYSIS

“The power to order expungement is part of the general power of the federal courts to

fashion appropriate remedies to protect important legal rights.” United States v. Archer, Criminal

No. 07-0029,

, at *1 (D.D.C. Nov. 13, 2012) (quoting Doe v. Webster,

, 1231 n.8, (D.C. Cir. 1979)); see Chastain v. Kelley,

(D.C. Cir. 1975)

(federal courts have the power to order the expungement of government records, such as criminal

2 records, “where necessary to vindicate rights secured by the Constitution or by statute.”) “Before

expunging a criminal record, the Court must find, after examining the particular facts and

circumstances of the case, the ‘remedy is necessary and appropriate in order to preserve basic legal

rights.’” United States v. Davis, No. CR. 342-72,

, at *2 (D.D.C. May 23, 2006)

(quoting Livingston v. U.S. Dep’t of Justice,

(D.C. Cir. 1985)).

‘The court may order expungement where it is required or authorized by statute, or in the

exercise of its inherent equitable powers.” Archer, supra. at *1 (internal quotation marks and

citation omitted); see United States v. Derouen,

, 299 (D.D.C. 2018) (same);

see also

(observing that “courts have the inherent, equitable power to expunge

arrest records”) (citations omitted). There is however “no ‘standalone right to expungement of

government records’ [ ] recognized in this Circuit.” United States v. Douglas,

(D.D.C. 2017) (quoting Abdelfattah v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015)). When the court exercises its inherent equitable power to order expungement it

requires “either a lack of probable cause coupled with specific circumstances, flagrant violations

of the Constitution, or other unusual and extraordinary circumstances.” Doe,

;

see e.g., United States v. Blackwell,

(D.D.C. 2014) (“Absent a statutory

basis authorizing expungement, courts have granted motions to expunge only in extreme

circumstances, such as in cases involving flagrant constitutional violations.”)

In the instant case, Defendant cites no specific statutory authority; he does not contend his

arrest and indictment were improper, nor does he plead unusual or extraordinary circumstances

justifying expungement. Rather, Mr. Lillicotch seeks expungement of his indictment because he

seeks to move to Florida to care for family and obtain employment so that he can support his wife,

but his proffered interest does not warrant the remedy of expungement. See, e.g., United States v.

3 Douglas,

(D.D.C. 2017) (“Merely citing to the fact that a criminal record

may foreclose or present difficulties in finding employment opportunities does not meet the

fundamental prerequisite of setting out a legally cognizable claim to vindicate rights secured by

the Constitution or by statute, for which claim expungement may be appropriate relief.”); United

States v. Robinson,

(D.D.C. 2014) (“[E]ven difficulties obtaining

employment and securing housing are not regarded as extreme circumstances” justifying

expungement.) Accordingly, the Court lacks the power to expunge Mr. Lillicotch’s criminal

record under these circumstances.

In this Circuit, when assessing whether to invoke the Court’s inherent authority to grant a

motion for expungement of an arrest record, the Court considers whether “serious governmental

misbehavior leading to the arrest, or unusually substantial harm to the defendant not in any way

attributable to him, outweighs the government’s need for a record of the arrest.” Davis,

, at *2 (citations omitted). This Circuit is clear that the Government has a “legitimate

need in maintaining criminal records in order to efficiently conduct future criminal investigations.”

Doe,

. “Retaining and preserving arrest records serve[s] an important function of

promoting effective law enforcement” and serves the “compelling public need for an effective and

workable criminal identification procedure.” United States v. Schnitzer,

(2d

Cir. 1977) (quotation omitted); see also United States v. Woods,

(D.D.C.

2018) (“The government has both the statutory authority to maintain criminal records and a

demonstrated need to do so in order to conduct future criminal investigations efficiently.”)

Retaining criminal records “aids in effective law enforcement” and maintaining records of

convictions “helps preserve uniform sentencing under the United States Sentencing Guidelines”

because the sentencing ranges rely in part on a defendant’s past criminal history. United States v.

4 Salleh,

(E.D. Va. 1994). As a result, expungements of criminal records are

rare, without authorizing statute or extraordinary circumstances. “[R]elief usually is granted only

in extreme circumstances, the finding of which requires a balancing of the equities between the

right of privacy of the individual and the right of law enforcement officers to perform their

necessary duties.” Davis,

, at *2 (internal quotation marks and quotation

omitted).

III. CONCLUSION

Mr. Lillicotch notes his conviction and the subsequent barriers to obtaining gainful

employment that stem from that conviction. The Court acknowledges the difficulties experienced

by a defendant as a direct and collateral result of having a felony conviction. That said, Mr.

Lillicotch does not present statutory authority in support of his expungement request, nor does he

contend his arrest was improper, or demonstrate any extraordinary circumstances that would

warrant expungement when balanced against the government interest in preserving criminal

records. The circumstances expressed by Defendant are not unique to him, but instead, they are

the circumstances facing every defendant with a criminal record and as such, they fail to “rise to

the level of the exceptional circumstances necessary to justify this Court’s exercise of its equitable

power to expunge records of a valid arrest and conviction absent a showing of some violation of

rights.” United States v. Wilson, 98-mj-0558,

, at *1 (D.D.C. June 17, 2008).

While the Court commends Mr. Lillicotch in his efforts since his sentencing, the Court

finds that Defendant’s inability to obtain employment on its own is insufficient to justify

expungement of his criminal record. This Circuit has consistently ruled that when weighed against

governmental interests in preserving a criminal record, the adverse effects of a defendant’s

conviction on his employment prospects are insufficient to warrant expungement, absent flagrant

5 constitutional violations. See, e.g., Derouen, 279 F. Supp. 3d at 300; United States v. Woods,

(D.D.C. 2018) (“Inability to obtain specific employment is neither an

exceptional circumstance nor an unusual result of a criminal conviction.”); United States v.

Spinner,

(D.D.C. 2014) (holding that the inability to obtain employment

does not warrant the remedy of expungement of a criminal record); United States v. Baccous,

Criminal Action No. 99-0596,

, at *2 (D.D.C. April 22, 2013) (noting that even

where the defendant’s concerns about his employment and residential opportunities were valid,

there was a lack of “extreme circumstances” and expungement of his criminal record was

unwarranted); In re Reid,

(D.D.C. 2008) (“[W]hile this Circuit has long

recognized the fact that a criminal record causes social disabilities, the harm of being unable to

obtain employment is insufficient on its own[.]”) (citations omitted)). Accordingly, for the

foregoing reasons, the Court finds that Mr. Lillicotch’s [28] Motion to Expunge Criminal Record

must be denied.

An appropriate Order accompanies this Memorandum Opinion.

__________/s/___________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

6