DOJ on the fence about appealing federal judge’s expungement order

June 26, 2015 CCRC Staff

On June 23, the U.S. Attorney wrote to Judge Gleeson informing him that the government had not yet finally decided whether to appeal his May 21 expungement order in Doe v. United States, and requesting an opportunity to address the scope of the order in the event the appeal is withdrawn. The government’s letter, reproduced in its entirety below, indicates that the government has been discussing with the FBI how the order might be modified to “effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction” while also allowing the government “to pursue legitimate law enforcement objectives.” Those objectives appear to relate to the arrest and prosecution of two of Ms. Doe’s codefendants who remain in fugitive status after more than a decade. On June 24, in an order granting the government’s request, Judge Gleeson suggested that the government bring any concerns about the scope of the order to the court’s attention even while the appeal is pending.

Here is the text of the government’s June 23 letter:

The Office continues to discuss internally whether to pursue an appeal of the Court’s Orders and, given the date (nearly thirty days from entry), the government has filed the notice to preserve its appellate rights. In addition, the government has been consulting with counsel to the Federal Bureau of Investigation concerning proposed modifications to the Court’s May 21 and 22 Orders that will both effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction and will allow the government to pursue legitimate law enforcement objectives, including the arrest and prosecution of Jean Maxon Lucien and Frantz Mevs, two of the petitioner’s codefendants who absconded following their arrests in the underlying case, United States v. Lucien, 00-CR-1274 (JG), and who remain at large.

Because the government has filed a Notice of Appeal to preserve its rights in this case, however, the Court may currently be divested of jurisdiction to modify its May 21 and 22 Orders. Accordingly, the government respectfully requests that, if the Office or the Department of Justice ultimately determines that an appeal is not warranted in this case, the Court afford the government the opportunity to address the scope of the Court’s ordersand the implementation of them as currently written, which would substantially burden the government and have unintended consequences in related criminal proceedings.

Here is the text of the court’s June 24 order:

The government’s application in its letter dated June 23, 2015 [DE 15], requesting an opportunity to address the scope of the order and its implementation in the event the appeal is withdrawn, is granted. Assuming the correctness of the government’s assertion that I lack subject matter jurisdiction (even concerning the form of the remedial order), I respectfully suggest that the government bring any concerns with regard to the order to the Court’s attention, even while the appeal is pending. At the very least, it would afford this Court the opportunity to provide the Court of Appeals its view regarding the issues raised.

If the government is willing to work out a solution that will “preclud[e] the petitioner’s prospective employers from learning of her health care fraud conviction” as long as it will not impede its prosecution of Ms. Doe’s fugitive co-defendants, this will be very good news to the many people with federal convictions who have had similar difficulty in getting and keeping employment but whose criminal cases are entirely resolved.