July 15, 2015
This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge John Gleeson, pointing to extraordinary circumstances, granted petitioner's motion to expunge her conviction. Judge Brian M. Cogan imposed sanctions on plaintiff's counsel for bad-faith comments at a conference, and denied plaintiff's motion for recusal based on the court's alleged "financial interests" and "bias." And Magistrate Judge Anne Y. Shields granted plaintiff leave to amend his complaint by adding a new §1983 claim alleging misconduct by state officials in his murder prosecution.
Expungement of Conviction
In Doe v. United States, 14 MC 1412 (EDNY, May 21, 2015), Judge Gleeson granted petitioner's application to expunge her 13-year-old conviction "because of the undue hardship it has created for her in getting—and keeping—jobs." Under the compelling factors here, "the public interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record" that the requested relief was warranted. Slip op. 2.
Petitioner, the single mother of four children, was born and raised in Haiti, came to the United States in 1983 at the age of 24 and became a naturalized citizen in 1989. She attended a nursing assistant program and became a home health aide. Her take-home pay was insufficient to pay her rent.
Petitioner participated in an insurance fraud scheme involving staged car accidents. She falsely claimed she was injured as a passenger in the back seat of a car, and received medical services for the purported injuries. A civil claim was filed on her behalf for which she received $2,500 of a $4,000 payment.
After a jury trial she was found guilty of health care fraud and sentenced in March 2002 to five years' probation and 10 months' home detention. She was also ordered to pay $46,701 in restitution. Petitioner had no prior criminal history, and has had no contact with the criminal justice system since her conviction.
The court detailed petitioner's post-conviction efforts to find work. In at least a dozen instances she was stymied by background checks disclosing her conviction. Petitioner has often been hired, but fired as soon as her conviction came to light. As a result, she and her family have been on public assistance.
Although gainful employment and stable housing are key factors that enable people with criminal convictions to avoid future arrests and incarceration, a criminal record poses a significant barrier to the ability to obtain employment. Gleeson discussed efforts by various members of the criminal justice system to address how the system "can better balance its law enforcement goals with society's interest in the successful rehabilitation and reentry of individuals with criminal convictions." Slip op. 8-9.
Expungement is discretionary, but granted only in extraordinary circumstances. Such circumstances existed here, because (1) petitioner's offense was distant in time, committed 17 years ago; (2) her criminal record has dramatically impeded her ability to work, and she has not participated in any criminal activity since the conduct underlying her conviction; and (3) she was a minor participant in a nonviolent crime. The court rejected the government's argument that health care employers should know about her health care fraud conviction.
Gleeson recognized "the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully." Slip op. 14. The court ordered the government to place petitioner's arrest and conviction records in a separate storage facility, remove her real name from official indexes and public records, and prohibit opening her records except in the course of a bona fide criminal investigation. As the court noted: "My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe's conviction." The court also invited the input of the parties to effectuate the relief granted. Slip op. 15-16.
In Huebner v. Midland Credit Management, 14 CV 6046 (EDNY, May 1, 2015), Judge Cogan denied plaintiff's motion for recusal and imposed sanctions on plaintiff's counsel for making assertions in bad faith at the Initial Status Conference.
Plaintiff commenced this action under the Fair Debt Collection Practices Act (FDCPA). At the Initial Status Conference, plaintiff's counsel set forth the basis of the FDCPA claims—a conversation recorded by plaintiff in which defendant's agent allegedly stated that plaintiff could only dispute his debt in writing, in violation of the FDCPA. As it turned out, the recording demonstrated that plaintiff tried to entrap defendant into a violation of the FDCPA, but did not succeed.
Cogan issued an Order to Show Cause directing plaintiff to show why the complaint should not be dismissed and why sanctions should not be issued for bringing the action in bad faith. Plaintiff responded that the court needed a more complete record to show the FDCPA violation and that Cogan should recuse himself for demonstrating bias.
Plaintiff based his recusal motion on Cogan's Financial Disclosure Reports, disclosing that he owned shares in certain publicly traded mutual funds and exchange-traded funds. Two of the funds held stock in defendant's parent company, adding up to an interest of about $9 in the company. According to counsel's theory, this showed the court's "financial interest" in defendant, requiring recusal. Plaintiff further alleged that Cogan was hostile to his case because of this financial interest.
But as the court pointed out, Canon 3C(1)(c)(i) of the Code of Conduct for United States Judges states that "ownership in a mutual or common investment fund that holds securities is not a 'financial interest' in such securities unless the judge participates in the management of the fund." Cogan found plaintiff's suggestion that the court had a disqualifying interest to be frivolous.
Plaintiff asserted several more grounds for recusal: (1) bias reflected in the Order to Show Cause, which noted that the FDCPA is frequently abused; (2) the scheduling of the Initial Status Conference six weeks after plaintiff filed his complaint; (3) the court's direction to file an amended complaint or show cause why the initial complaint should not be dismissed; and (4) the court's failure to reassign plaintiff's motion to recuse after he filed an affidavit.
In the court's view, plaintiff's contentions were frivolous. Cogan referenced several judges who had commented on the misuse of the FDCPA. The court also observed that (1) this case was managed in the same way as all other cases on his docket; (2) plaintiff's initial complaint was a "teaching exercise in how not to draft a pleading"; and (3) plaintiff's affidavit contained no meaningful allegations about the court's bias or prejudice in favor of or against any party.
Finally, the court imposed sanctions on plaintiff's counsel for stating at the Initial Status Conference that plaintiff's claim was based on a recorded conversation proving a violation of the FDCPA, when the recording showed the opposite. Plaintiff subsequently came up with a new theory of the case. Because plaintiff's counsel did not cooperate in good faith in the Initial Status Conference as required by Federal Rule of Civil Procedure 16, and instead made "an attempt to mislead defendant and the Court, just as plaintiff himself attempted to trick defendant into committing an FDCPA violation," Cogan sanctioned counsel in the amount of $500. Slip op. 11-12.
Tankleff §1983 Claim
In Tankleff v. County of Suffolk, 09 CV 1207 (EDNY May 5, 2015), Magistrate Judge Shields allowed plaintiff to amend his complaint to allege a new claim under 42 U.S.C. §1983, based on recently discovered Brady violations.
Plaintiff Martin Tankleff served over 17 years in state prison for the murder of his parents in 1988. After the conviction was overturned in December 2007 and the state declined to retry the case, Tankleff filed a federal lawsuit, including a §1983 claim, based on the police and prosecutor defendants' alleged withholding of exculpatory evidence, in violation of plaintiff's Fourteenth Amendment right to a fair trial as recognized in Brady v. Maryland, 373 U.S. 83 (1963).
That claim was dismissed on a pleading motion. But other claims survived and, during discovery, plaintiff uncovered facts that he sought to use to plead a new §1983 claim. The proposed new claim alleged that the deposition testimony of the medical examiner, Dr. Vernard Adams, showed that the detectives on the case knew, but the prosecutors did not disclose, that Dr. Adams believed the "watermelon knife" Tankleff was alleged to have used to commit the crime likely was not the murder weapon.
Defendants opposed amendment on two grounds: (1) that Dr. Adams' testimony was not sufficiently specific about the identity of the detective "who heard (or acknowledged hearing) and then withheld, Dr. Adams' alleged statement that the watermelon knife could not have been the murder weapon," and (2) that plaintiff could not show that any statements had been suppressed, because Dr. Adams had testified that it was "his policy to make himself and his files available to defense attorneys." Slip op. 10, 11.
Applying the liberal amendment provisions of Fed. R. Civ. P. 15(a), Shields disagreed. The proposed amended complaint's allegations were sufficiently specific, and the questions of proof defendants raised could be addressed on summary judgment. Similarly, "[w]hile the Court agrees that Dr. Adams' testimony can be interpreted to support Defendants' position" regarding Tankleff's access to Dr. Adams' opinion, "the Court is unwilling to deny amendment based solely upon the testimony and the record presently before the Court. Indeed, to do so would require this Court to make a finding, generally made only in the summary judgment context, that there is no question of fact as to whether or not the evidence was suppressed." Slip op. 11.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.