UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA )
)
v. ) Cr. No. 09-10304-MLW
)
DIEGO MASMARQUES, )
Defendant. )
MEMORANDUM AND ORDER
WOLF, D.J. September 22, 2015
Defendant Diego MasMarques has filed a Motion to Seal,
asking the court to seal the record of this case on the PACER
system and to remove the record from the Federal Bureau of
Investigation's ("FBI") National Criminal Information Center
("NCIC") database (the "Motion"). The Motion is being denied
for the reasons explained below.
I. BACKGROUND
On July 17, 2000, MasMarques, who is an American citizen,
was convicted of two counts of burglary and one count of willful
homicide in Spain. The Spanish court sentenced him to one year
in prison on the first burglary count, two years in prison on
the second burglary count, and twelve years in prison on the
homicide count. In 2005, pursuant to a Transfer Treaty, he was
transferred to the United States to serve the remainder of his
sentence.
Prior to his transfer to the United States, MasMarques
signed a form consenting to serve the remainder of his sentence
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 2 of 7
according to the laws of the United States. By signing the
form, he agreed that his "conviction or sentence can only be
modified or set aside through appropriate proceedings brought by
me or on my behalf in Spain." See Feb. 13, 2006 Verification of
Consent to Transfer (Docket No. 1-4).
MasMarques's case was initially assigned to the Eastern
District of Wisconsin for performance of the verification
proceedings required by 18 U.S.C. §4108. On August 20, 2008,
MasMarques was released to a three-year term of supervised
release in the Southern District of New York. On June 2, 2009,
with the permission of the Probation Office, MasMarques moved to
Woburn, Massachusetts. As a result, his case was transferred to
this court for supervision during the remainder of his period of
supervised release. See 18 U.S.C. §4106A(b)(3).
On January 18, 2013, MasMarques, acting pro se, filed a
motion requesting that the court seal the record of his
conviction in Spain. In addition, he requests that the court
remove a negative "alert" that appears in the FBI's NCIC
database. He claims that the availability of his criminal
record has harmed his ability to find a job. He maintains that
allowing this criminal record to be publicly accessible violates
his rights under the Double Jeopardy Clause.
2
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 3 of 7
II. DISCUSSION
MasMarques's Motion to Seal presents four issues: (1)
whether public availability of his criminal record constitutes a
second punishment in violation of the Double Jeopardy Clause of
the Fifth Amendment; (2) whether the court should seal the
record of his conviction; (3) whether the court has authority to
order the removal of the negative "alert" based on his case that
appears in the FBI's NCIC database; and (4) whether the court
has authority to expunge MasMarques's criminal record.
MasMarques is proceeding pro se. Therefore, his motion
will be construed liberally. See Erickson v. Pardus, 551 U.S.
89, 94 (2007). Nevertheless, there is no legal basis to grant
the relief that he requests. Therefore, his Motion is being
denied.
A. Double Jeopardy
The Double Jeopardy Clause "safeguards an individual
against (1) a second prosecution for the same offense, following
an acquittal; (2) a second prosecution for the same offense,
following a conviction; and (3) multiple punishments for the
same offense." United States v. Stoller, 78 F.3d 710, 714 (1st
Cir. 1996) (quoting United States v. Rivera-Martinez, 931 F.3d
148, 152 (1st Cir.), cert. denied, 502 U.S. 862 (1991)). "The
Clause protects only against the imposition of multiple criminal
punishments for the same offense . . . and then only when such
3
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 4 of 7
occurs in successive proceedings." Hudson v. United States, 522
U.S. 93, 99 (1997) (emphasis in original). In determining
whether a government action is "punishment" for purposes of the
Double Jeopardy Clause, courts examine the totality of the
circumstances to determine whether its objectives or effects are
"punitive" in nature. See Stoller, 78 F.3d at 721.
The public availability of the records of MasMarques's
conviction under the PACER, CORI, and NCIS system is not a
"punishment" in violation of the Double Jeopardy Clause. Many
courts have recognized that "[t]he dissemination of accurate
public record information concerning an individual's past
criminal activities holds "the potential for substantial
negative consequences." E.B. v. Verniero, 119 F.3d 1077, 1099
(3d Cir. 1997). "Nevertheless, our laws' insistence that
information regarding criminal proceedings be publicly
disseminated is not intended as punishment and has never been
regarded as such." Id. at 1100. The purpose of these systems
is "regulatory," and they, therefore, are "not punishment even
though it may bear harshly on one affected." Doe v. Pataki, 120
F.3d 1263, 1279 (2d Cir. 1997) (quoting Flemming v. Nestor, 363
U.S. 603, 613 (1960). Furthermore, the negative effects of
publicly disseminating criminal records do not "implicate any
interest of fundamental constitutional magnitude." See
Verniero, 119 F.3d at 1103. Therefore, the availability of the
4
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 5 of 7
PACER records, the NCIC alerts, and the resulting negative
effects do not constitute a second punishment in violation of
the Double Jeopardy Clause.
B. Sealing MasMarques's Court Records
In the United States, there is a common law presumption of
public access to judicial records. See Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978); United States v.
Kravetz, 706 F.3d 47, 62 (1st Cir. 2013). This presumption
"stems from the premise that public monitoring of the judicial
system fosters the important values of 'quality, honesty and
respect for our legal system.'" Siedle v. Putnam Investments,
Inc., 147 F.3d 7, 9-10 (1st Cir. 1998). Furthermore, Congress
has recognized a "compelling public need" to keep criminal
records publicly available. United States v. Schnitzer, 567
F.2d 536, 539 (2d Cir. 1977). When evaluating a motion to seal
a court record, the court "carefully balances the competing
interests that are at stake in the particular case." Siedle,
147 F.3d at 10.
MasMarques contends that it is unfair to allow the record
of his case to be publicly accessible through the court's PACER
system because public availability of the record has made it
difficult for him to find a job. If courts were to allow the
stigma resulting from the public record of a case to outweigh
the public right of access, then virtually all criminal records
5
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 6 of 7
would be sealed. The balance might lean more in MasMarques's
favor if he had been acquitted or exonerated of the charges in
Spain. See Diamond v. United States, 649 F.2d 496, 499 (7th
Cir. 1981). However, the presumptive public right of access to
court records is not outweighed solely because the record has an
adverse effect on the defendant's livelihood, as such rule would
vitiate the presumptive public right of access. Indeed, "courts
must be reluctant to substitute their judgment for that of
employers, legislators, and others in whom the discretion to
give second chances is more properly vested." United States v.
Barrow, 06-Cr-1086(JFK), 2014 WL 2011689, at *2. Consequently,
the court is denying MasMarques's request to seal the record of
this case.
C. Removing the "Alert" from the NCIC Database
28 U.S.C. §534 directs the Attorney General to maintain a
criminal records database. MasMarques complains that his
criminal record is accessible in this database. However, courts
are without authority to order removal of a criminal record from
the NCIC database. See Carter v. United States, 431 Fed. Appx.
104, 105-06 (3d Cir. 2011); United States v. Lucido, 612 F.3d
871, 875 (6th Cir. 2010). Therefore, the court must deny
MasMarques's request.
6
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 7 of 7
D. Expunging MasMarques's Criminal Record
MasMarques also appears to request that the court expunge
the American court records of his convictions in Spain.
However, federal courts lack subject matter jurisdiction to
expunge criminal records based solely on "equitable reasons,"
meaning "grounds that rely only on notions of fairness and are
entirely divorced from legal considerations." United States v.
Coloian, 480 F.3d 47, 52 (1st Cir. 2009). MasMarques provides
no legal basis to expunge his record. The court does not have
jurisdiction to expunge his record on these grounds. See id.
III. ORDER
In view of the foregoing, it is hereby ORDERED that
Defendant's Motion to Seal (Docket No. 4) is DENIED.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE
