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United States v. Achrem

United States District Court, D. Nevada

May 29, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
EDWARD JOHN ACHREM Defendant.

          HOFLAND & TOMSHECK Joshua Tomsheck, Esq. Attorney for Defendant

          DEFENDANT'S UNOPPOSED MOTION FOR EXPUNGEMENT

          Peggy A. Leen United States Magistrate Judge.

         COMES 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.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         On 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.

         On 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 Influence.

         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.

         On 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.

         On 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 chargeable offense.

         Pursuant 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.

         Pursuant 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.

         At the 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.[1]

         II. LEGAL AUTHORITY

         The 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[2], 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 ...


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