THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Kihleng ,
8 FSM Intrm. 323 (Pon. 1998)

[8 FSM Intrm. 323]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SIMEON KIHLENG,
Defendant.

CRIMINAL CASE NO. 1992-502

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Argued:  May 12, 1998
Decided:  July 6, 1998

APPEARANCES:
For the Plaintiff:          Julia K. Freis, Esq.
                       Assistant Attorney General
                       FSM Department of Justice
                       P.O. Box PS-105
                       Palikir, Pohnpei FM 96941

For the Defendant:     Thomas G. Soucia, Staff Attorney
                       Office of the Public Defender
                       P.O. Box PS-174
                       Palikir, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure ) Expungement of Records
     Without more, expungement is not appropriate when the court's order entered pursuant to a plea agreement specifically found sufficient factual basis to render a judgment of guilt against the defendant, and, although imposition of sentence was suspended pursuant to 11 F.S.M.C. 1002(4), the defendant served jail time, was under house arrest, and paid a total of $14,374.00 to the national treasury.  FSM v. Kihleng, 8 FSM Intrm. 323, 324-25 (Pon. 1998).

[8 FSM Intrm. 324]

Criminal Law and Procedure ) Expungement of Records
     Expungement of criminal records falls generally within three categories:  expungement pursuant to statute, expungement where it is necessary to preserve basic legal rights, and expungement based on acquittal.  FSM v. Kihleng, 8 FSM Intrm. 323, 325 (Pon. 1998).

Criminal Law and Procedure ) Expungement of Records
     Where the arrest itself was an unlawful one, or where the arrest represented harassing action by the police, or where the statute under which the arrestee was prosecuted was itself unconstitutional, courts have ordered expunction.  FSM v. Kihleng, 8 FSM Intrm. 323, 325 (Pon. 1998).

Criminal Law and Procedure ) Expungement of Records
     Although expungement calls for a balancing of the equities between the government's need to maintain extensive records in order to aid in general law enforcement and the individual's right to privacy, an acquittal, standing alone, is not in itself sufficient to warrant an expunction of an arrest record.  FSM v. Kihleng, 8 FSM Intrm. 323, 325 (Pon. 1998).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     The court has received the defendant's Motion to Dismiss and Expunge Records (filed May 21, 1998); the Motion to Appear Pro Hac Vice and Affidavit in Support of Motion to Appear Pro Hac Vice of defendant's counsel (filed May 21, 1998); the Consent or Waiver for Thomas G. Soucia to Represent the Defendant (filed May 21, 1998); and the FSM's Opposition to Defendant's Motion to Dismiss and Expunge Records.

     Defendant's motion to dismiss the information is granted subject to defendant's providing verification that all payments required by the amended plea agreement have been made.  Defendant's motion to expunge the record is denied.  As to defense counsel's motion to appear pro hac vice, no objection having been filed by the FSM and good cause appearing, the motion is granted.

     Defendant moves to dismiss the information in this case on the basis that he has met all of his obligations under the Amended Stipulated Plea Agreement dated February 8, 1993, and the order entered thereon, dated February 9, 1993. The order deferred entry of a plea and imposition of sentence so long as the stipulated terms and conditions were met.  Specifically, defendant recites that he has made payments of $14,374.00 to the National Justice Ombudsman; has engaged in no illegal conduct during the past five years; completed a jail term of seven days; and was under house arrest for 105 consecutive days.  The FSM's does not oppose the motion to dismiss so long as verification of the payments is received from the Ombudsman.  This is a reasonable request, and upon receipt of verification from the Ombudsman, the information will be dismissed with prejudice.

     Defendant also requests expungement of the record in this case.  The basis for the request appears to be that defendant has met the terms and conditions of the amended plea agreement.  This case does not present a situation where expungement is requested pursuant to statute, where unlawful conduct on the part of law enforcement authorities is alleged, or where expungement is based on defendant's exoneration or acquittal.  To the contrary, the court's order of February 9, 1993, entered pursuant to the amended plea agreement specifically finds that "[b]ased on the evidence and filing presented by the parties, the Court finds a sufficient factual basis in the above matter to render a judgment of guilt against the Defendant Simeon Kihleng."  Although imposition of sentence was

[8 FSM Intrm. 325]

suspended pursuant to 11 F.S.M.C. 1002(4), the defendant served jail time, was under house arrest, and paid a total of $14,374.00 to the national treasury. Without more, these facts do not suggest that expungement is appropriate.

     Expungement does not appear to be an issue addressed by FSM case authority.  United States cases which address the issue relative to the expungement of criminal records seem to fall generally within three categories: expungement pursuant to statute, expungement where it is necessary to preserve basic legal rights, and expungement based on acquittal.

     Examples of the first are United States v. Doe, 556 F.2d 391 (6th Cir. 1977), and United States v. McMains, 540 F.2d 387 (8th Cir. 1976), both of which held that the "set aside" provision of the Federal Youth Corrections Act, 18 U.S.C. 5021, did not entitle a youthful offender to expungement of the offender's criminal record.

     As to the second class of cases, the court in United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), observed that "where the arrest itself was an unlawful one, or where the arrest represented harassing action by the police, or where the statute under which the arrestee was prosecuted was itself unconstitutional, courts have ordered expunction."  The court in Sullivan v. Murphy, 478 F.2d 938, 968-69 (D.C. Cir. 1973), surveyed fact situations of this type where records were expunged.  These include instances where civil rights workers were arrested, and subsequently convicted, in order to disrupt a voter registration drive, United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); where police repeatedly violated the Fourth Amendment in enforcing an overbroad vagrancy statute, Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969) (three judge court), subsequently vacated and remanded, 401 U.S. 987, 91 S. Ct. 1219, 28 L. Ed. 2d 524 (1971) (in light of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971)) (the Sullivan court noting that "[t]his development is, of course, relevant only insofar as the lower court's decision rested on a finding that the state vagrancy statute was facially unconstitutional and its remedy included an injunction against state prosecutions," Sullivan, 478 F.2d at 968 n.65); where police engaged in mass arrests in order to discourage hippies from congregating in a public park, Hughes v. Rizzo, 282 F. Supp. 881 (E.D. Pa. 1968); and where an individual was convicted, on the basis of invalid action by his Selective Service Board, for failure to report for induction into the armed services, Kowall v. United States, 53 F.R.D. 211 (W.D. Mich. 1971).  In Sullivan, itself, the court ordered expungement of arrest records where mass arrests were made without probable cause during anti-war demonstrations.  Sullivan, 478 F.2d at 973.

     As to the last type of case, in United States v. Linn, defendant was an attorney who was acquitted on nine counts of a criminal indictment.  Defendant urged that the record would work to his substantial prospective prejudice, and urged that it be expunged.  While noting that cases discussing expungement "call for a `balancing' of the equities between the Government's need to maintain extensive records in order to aid in general law enforcement and the individual's right to privacy," Linn, 513 F.2d at 927, the court went on to note that "an acquittal, standing alone, is not in itself sufficient to warrant an expunction of an arrest record." Id. at 927-28.  The court affirmed the order of the trial court denying expungement.

     As noted, the basis for defendant's motion is that he has completed all the terms and conditions of his plea agreement.  Looking to the criteria provided by the foregoing cases, the court denies defendant's motion to expunge his record.
                                                                                                                                                                                                                                                                                                           
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