8 Matching Annotations
  1. Oct 2017
    1. HANOVER, West Germany (UPD An American citizen walked over the border into East Germany and was arrested by border guards, West German police said today. They said Diego Mas Marques, 38, hometown unknown, drove his car into a ditch near the border station of Helmstedt, 50 miles from Hanover on Monday. He got out of the car and walked toward the crossing point. "He seemed excited and gave the impression of being confused," a spokesman for the border police said. , When a West German border guard offered to help him, Marques attacked him and walked the few yards to the barbed-wire fence marking the East German frontier, police said. "He was arrested and we haven't heard anything more about him since," the West German spokesman said. He said the man's wife and two children remained in the car in West Germany.
                                 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.


       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


       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.


      Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 3 of 7


        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


        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


      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


      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


      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.


      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
    1. Diego Mas Howard. The murder of Son CaliuCrime: He killed Tatiana Vassic. Sentence: Fifteen years. Current status:serving his sentence in the prison of Palma.
    2. Diego Mas Howard. El homicida de Son CaliuDelito: Mató a Tatiana Vassic. Condena: Quince años. Situación actual: Seencuentra cumpliendo la condena en el centro penitenciario de Palma.