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December 28, 1979


The opinion of the court was delivered by: COHEN COHEN

Called into question here are the interpretation and effect of section 5021 of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (the Act), relating to the expungement of a youth's criminal record.

On August 13, 1962, Thomas A. Henderson was convicted, following his guilty plea, of taking $ 100.00 from the United States mails in violation of 18 U.S.C. § 1709. The sentencing judge, Honorable Thomas M. Madden, deceased, suspended imposition of sentence and, pursuant to the Act, placed Henderson on probation for three years. On December 21, 1964, Henderson was discharged from probation, automatically "setting aside" the conviction under 18 U.S.C. § 5021(b). *fn1" Judge Madden subsequently issued to the youth offender a certificate to that effect.

 In the early part of 1979, the United States Probation Office, District of New Jersey, was notified by Henderson that, despite the certificate, he was having difficulty finding suitable employment. Henderson attributed this difficulty to the existence of his criminal record, which consists solely of the 1962 arrest and conviction. In response to Henderson's request, the Probation Office made Ex parte application to the Court for an order of expunction. On May 10, 1979, this Court, after due consideration and upon the recommendation of the United States Probation Office, ordered "an expunction of all records relative to (Henderson's) arrest and conviction to achieve the purposes of the Youth Corrections Act."

 The United States Attorney now seeks reconsideration and vacation of the May 10, 1979 Order.

 The issue presented here is whether the "set aside" provision of the Act, 18 U.S.C. § 5021, authorizes, by implication, expungement of all records relative to a youth offender's arrest and conviction. It should be noted that the Third Circuit Court of Appeals has yet to deal with this precise question.

 The United States Attorney asserts that the Act in no way empowers this Court to order the destruction or "expunction" of records concerning a conviction which has been "set aside." He further maintains that the Court's equitable power with respect to expungement is very narrow, and that the facts of this case do not warrant such a rare remedy.

 The Administrative Office of the United States Courts (Administrative Office), which provides legal advice to all federal probation officers, urges in its brief as Amicus curiae that Henderson, as a youth sentenced under the Act, should have the records of his arrest and conviction expunged pursuant to the implicit requirement of 18 U.S.C. § 5021. The Administrative Office contends that the "set aside" phrase within section 5021 should be interpreted as an expungement provision, and that the word "conviction" as used in that statutory phrase should be understood to encompass the entire record of the youth's criminal act, from the arrest to the sentence. Alternatively, the Administrative Office contends that the arrest and conviction record should be expunged pursuant to the Court's inherent equitable powers used in conjunction with section 5021.

 For the following reasons, this Court holds that a youth offender who satisfies the requirements of section 5021 of the Act shall have the records of his or her arrest and conviction expunged in the manner set forth in Section IV, Infra, of this opinion.


 Judicial interpretation of the Act has been limited, and has yielded contrary interpretations regarding the status of a youth offender whose conviction has been "set aside" pursuant to section 5021. For example, determining that the purpose of section 5021's "setting aside" provision is to give eligible defendants a "second chance, free of All taint of a conviction" (emphasis in original), the First Circuit has held that an alien whose conviction is "set aside" pursuant to the section may not be deported on the basis of that conviction. Mestre Morera v. United States Immigration & Naturalization Service, 462 F.2d 1030, 1032 (1st Cir. 1972). This position was rejected in Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (9th Cir. 1962), which held that a person whose conviction was still subject to discharge under section 5021 could be deported on the basis of the conviction. Id. at 640. Similarly, in Garcia-Gonzales v. United States Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965), the court held that an analogous California "set aside" provision could not be raised to bar deportation. That court stated: "(i)t is sheer fiction to say that the conviction is "wiped out' or "expunged'. What the statute does is reward the convict for good behavior during probation by releasing certain penalties and disabilities." Id. at 808. Although these cases are not directly applicable under the present facts, they do illustrate the divergence of judicial opinion as to the effect of the Act on a convicted youth whose conviction has been set aside.

 The few courts which have dealt directly with the specific question of whether section 5021 implicitly provides an expungement remedy are also in conflict. The dicta of several decisions has suggested that section 5021 should be read as an expungement provision so that the statutory purposes of the Act will be fulfilled. See United States v. Fryer, 545 F.2d 11, 13 (6th Cir. 1976); *fn2" United States v. Dancy, 166 U.S.App.D.C. 399, 402 n. 11, 510 F.2d 779, 782 n. 11 (D.C. Cir. 1975); Tatum v. United States, 114 U.S.App.D.C. 49, 51 n. 2, 310 F.2d 854, 856 n. 2 (D.C. Cir. 1962); United States v. Glasgow, 389 F. Supp. 217, 224 n. 17 (D.D.C.1975). Nevertheless, most courts which have holdings directly on point have refused to treat section 5021 as an expungement provision. See United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977); United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976); United States v. Hall, 452 F. Supp. 1008, 1012 (S.D.N.Y.1977); Fite v. Retail Credit Company, 386 F. Supp. 1045, 1047 (D.Mont.1975), Aff'd, 537 F.2d 384 (9th Cir. 1976). The decision in United States v. McMains is exemplary of these decisions. There, the Eighth Circuit Court of Appeals held that the Act

does not authorize expunction of the record of a conviction which has been set aside pursuant to section 5021. First, the language of section 5021 does not plainly provide for record expunction. We are confident that had Congress intended to authorize expunction, it would have manifested that intent with far greater clarity. It has done so on other occasions. See 21 U.S.C. § 844(b) (2). Second, the fact that section 5021 provides for the issuance of a certificate to the offender upon the setting aside of his conviction militates against a construction favoring expunction. Had Congress intended to provide for complete eradication of the offender's criminal record, such a certificate would seem unnecessary. Third, it would be incongruous to infer a statutory right to expunge a conviction when there is no statutory right, in most cases, to expunge the record of an arrest that does not result in a prosecution.

 540 F.2d at 389.

 In the most recent circuit court decision on point, the District of Columbia Circuit (D.C. Circuit) disagreed with the majority of the prior decisions, and concluded that the Act requires the expungement of a youthful offender's conviction record in appropriate cases. In Doe v. Webster, 196 U.S.App.D.C. 319, 606 F.2d 1226 (D.C.Cir.1979), the court, in an erudite and comprehensive opinion, recognized that the "primary concern" of the authors of the Act was to release the rehabilitated youth offender from the "social stigma and loss of economic opportunity that in this society accompany the "ex-con' label." Id., 196 U.S.App.D.C. at 327, 606 F.2d at 1234. The court observed:

While the legislative history offers little guidance as to the reasoning behind the drafters' choice of terminology, it is crystal-clear in one respect: they intended to give youthful ex-offenders a fresh start, free from the stain of a criminal conviction, and an opportunity to clean their slates to afford them a second chance, in terms of both jobs and standing in the community.


 After analyzing the legislative history of the Act, and noting that other circuits have also emphasized "both the rehabilitative aspects of the Act and its purpose to provide youthful ex-offenders a fresh start," Id., 196 U.S.App.D.C. at ...

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