United States District Court, D. Nevada
HOFLAND & TOMSHECK Joshua Tomsheck, Esq. Attorney for
DEFENDANT'S UNOPPOSED MOTION FOR
A. Leen United States Magistrate Judge.
NOW Defendant, EDWARD JOHN ACHREM, by and through his
attorney of record, Joshua Tomsheck of the law firm of
Hofland & Tomsheck and hereby moves this Court
(Unopposed) for an Order Granting Expungement.
RELEVANT FACTS AND PROCEDURAL HISTORY
January 16, 2016, EDWARD JOHN ACHREM (hereinafter “Mr.
Achrem”) was arrested in the Lake Mead National
Recreation Area for Driving under the Influence and Speeding.
At the time of his arrest, Mr. Achrem had complied with all
requests of law enforcement during their investigation. He
was arrested for Driving under the Influence,
even though he submitted to a breath test and
provided two (2) sample tests well below the legal limit of
.08. At the time of his arrest, Mr. Achrem had
absolutely no history of any criminal arrest or conviction
for any offense; criminal, traffic or otherwise. In addition,
Mr. Achrem has been a practicing attorney and member in good
standing of the Nevada State Bar since 1979, with no record
of any disciplinary action. Mr. Achrem subsequently retained
the undersigned to represent him in this matter.
April 27, 2016, the Government charged Mr. Achrem by way of
Criminal Complaint with one Count of Reckless Driving (Count
1) and one Count of Speed (Count 2). Mr. Achrem
was never charged with Driving under the
Initial Appearance in this matter was held on May 25, 2016.
Mr. Achrem was present with the undersigned counsel and
entered a plea of Not Guilty. Bench Trial was set for July
13, 2016, the undersigned appeared on behalf of Mr. Achrem.
This Court waived Mr. Achrem's appearance on that date
and representations were made by the undersigned and counsel
for the Government (Assistant United States Attorney Patrick
Burns) that the matter was resolved, subject to the
Government's provision of a Petty Offense Plea Agreement
memorializing the negotiation.
August 3, 2016, a Petty Offense Plea Agreement was filed in
which Mr. Achrem entered a plea of guilty to Count 2 (Speed).
(See CMECF Docket No. 7). Count 1 (Reckless Driving)
was dismissed upon entry of plea pursuant to the Petty
Offense Plea Agreement. Mr. Achrem admitted in his Petty
Offense Plea Agreement that he was traveling approximately 56
miles per hour in a 35 mile per hour zone which was, in
reality, the only factual predicate giving rise to a
to the Petty Offense Plea Agreement, specifically at
paragraph 4(a), the parties recommended a fine in the amount
of $750.00 and a mandatory $10 penalty assessment and that
the Defendant attend and complete Traffic School. The Court
imposed these sentencing requirements.
to paragraph 4(b) of the Petty Offense Plea Agreement,
“[s]hould the Court sentence the Defendant as
recommended in Section 4(a), the parties agree that if the
Defendant successfully completes conditions one and two, as
specified in Section 4(a), the parties will jointly move to
dismiss the Count Two - Speed. However, if
the Defendant fails to complete the conditions one and two,
as specified in Section 4(a), then his conviction for Speed
will remain in effect and the Defendant shall not seek to
withdraw his guilty plea to Count
Two.” In any event, Count 1 of the Complaint
(Reckless Driving) was dismissed at the entry of plea.
Time he entered his plea to Count 2 of the Complaint Pursuant
to the Petty Offense Plea Agreement on August 3, 2016, Mr.
Achrem had already paid his fine and assessment totaling
$760.00 and completed his traffic school. Pursuant to the
Petty Offense Plea Agreement, Count Two was to be dismissed
at that time.
Ninth Circuit held that a district court has the power to
expunge the record of an unlawful arrest or conviction, or to
correct a clerical error. United States v. Sumner,226 F.3d 1005, 1014 (9th Cir. 2000). The district court has
the power to expunge a criminal record to correct an unlawful
conviction. Id. at 1012. While there is not a
generalized federal expungement statute, and federal courts
have no legislatively derived authority to expunge records of
a valid federal conviction, Circuit Courts have held that Federal
Courts have inherent or ancillary jurisdiction to expunge
arrest records in extreme circumstances. United States v.
Schnitzer,567 F.2d 536, 539 (2ndCir. 1977),
cert denied,435 U.S. 907, citingUnited States v. Rosen,343 F.Supp. 804, 807 (S.D.
N.Y. 1972). In determining whether such circumstances exist,
courts have considered the “delicate balancing of the
equities between the right of privacy of the individual and
the right of law enforcement officials to perform their
necessary duties.” Rosen at 806. When evidence
of actual innocence or improper government is brought to the
Court's attention, expungement may be warranted.
United States v. Van Wagner,746 F.Supp. 619 (E.D.
Va. 1990) (expungement appropriate where government conceded
that indicted defendant was actually innocent after
dismissing charges, and defendant proved he was suffering
economic hardship because of record); United States v.
Johnson,714 F.Supp. 522 (S.D. Fla. 1989) (expungement
of arrest record appropriate where court directed acquittal
on ground of no probable cause, and “negative
mark” of arrest record would likely jeopardize