Petition — Linn v. United States

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if JUN, TH 13

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In the | ste CHY

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1974

No. T4-) D959

JAMES P. LINN,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

JAMES P. LINN, pro se

of

LINN, Hetms & KIRK

410 Fidelity Piaza

Oklahoma City, Oklahoma 73102

June, 1975

UTTERBACK TYPESETTING Co., S19 W. CALIF... OKLAHOMA CiTy, PH. 2385-0030

375

— <0 eee

TABLE OF CONTENTS

—_——_ -—_

Statement

Opinions and Orders Below

Jurisdiction

Questions Presented for Review

1. Whether the order denying Petitioner’s motion

to expunge or alternatively seal his arrest record

deprives him of his fundamental right of privacy

and liberty in violation of the Fifth Amendment

concept of personal liberty and the Bill of Rights

as a whole

2. Whether the United States Court of Appeals for

the Tenth Circuit should have remanded the case

for an evidentiary hearing

Constitutional Provisions, Statutes and Regulations

Statement of the Case

The Question Is Substantial

Argument

I. The order denying Petitioner’s motion to ex-

punge cr alternatively seal his arrest record de-

prives him of his fundamental right of privacy

and liberty in violation of the Fifth Amendment

concept of personal liberty and the Bill of Rights

as a whole _. 7

A. The collection and dissemination of records of

arrest by the Federal Bureau of Investigation

PAGE

bo

to

to

TABLE OF AUTHORITIES conteeses PAGE

B. The Order Denying Expungement of Peti-

tioner’s Record of Arrest is a deprivation of

Petitioner’s right of privacy protected by the

Constitution; more particularly, the Fifth

Amendment concept of personal liberty and

the Due Process clause ,

C. Where certain fundamental rights are in-

volved, regulations limiting these rights may

be justified only by a compelling state interest 14

II. The United States Court of Appeals for the Tenth

Circuit should have remanded the case for an

evidentiary hearing . 19

Conclusion — 20

APPENDICES

Appendix A—Order Denying Petition for Rehearing i

Appendix B—Appeal from the United States District

Court for the Western District of Oklahoma, Filed

April 9, 1975, Opinion of the United States Court of

Appcals for the Tenth Circuit - li-vii

Appendix C-—-Order of the United States District

Court for the Western District of Oklahoma Deny-

ing Petitioner’s Motion to Expunge or Alternatively

Seal His Arrest Record Vii-viii

Appendix D—Federal Regulation Title 28 C.F.R.

$ 0.85 . _ 1x-xi

Appendix. E—Petition for Rehearing Xi-xiii

—iii—

TABLE OF AUTHORITIES

CASES: PAGE

Boyd v. United States, 116 U.S. 616 (1886) 11-12

Davidson v. Dill, 503 P.2d 156 (Col. 1972) .

Doe v. Commander, 329 A.2d 35 (Md. Ct. App. 1974) =13

Eddy v. Moore, 5 Wash. App. 354, 487 P.2d 211

I cranes _.. -..---. 13, 17-18

Entick v. Carrington, 19 Howell’ s State Trials, 1029

ee, : keen, ae

Gault, Application of, 387 U.S. 1 (1967) _. ceiut ae

Griswold v. Connecticut, 381 U.S. 479 (1965) 15

Menard v. Mitchell, 328 F.Supp. 718 (D.C. 1971) 8, 13, 18

Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974). 8,9, 13

Morrow v. District of Columbia, 417 F.2d 728 (D.C.

Cir. 1969) . i)

N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964) . 14

Roe v. Wade, 410 U.S. 113 (1973) 12-13, 16

Sampson v. Murray, 415 U.S. 61 (1974) 9

State v. Pinkley, 290 N.E.2d 923 (Ohio Com. Pl,

1972) 13

United States v. Robel, 389 U.S. 258 (1967) 13

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment V 3

STATUTES AND REGULATIONS:

28 U.S.C. § 534 os }

28 U.S.C. § 1254(1) D

28 C.F.R. § 0.85 _. a 344

23 C.F.R. § 0.85(b) 7

—iv—

AUTHORITIES CONTINUED

ARTICLES:

“Branded: Arrest Records of the Unconvicted,”

44 Mississippi Law Journal, 928 (1973)

“Davidson v. Dill: A Compelling State Interest in

Retaining Arrest Records,” 35 University of Pitts-

burgh Law Review, 205 (1973) an

“Discriminatory Hiring Practices Due to Arrest

Records—Private Remedies,” 17 Villanova Law

Review, 110 (1971)

Gilt by Record, 1 Calif. Western Law Review, 126

(1965)

Karabian, “Record of Arrest: The Indelible Stain,”

3 Pacific Law Journal, 20 (1972)

“The Arrest Record and New York City Public Hir-

ing: An Evaluation,” 9 Columbia Journal of Law

and Social Problems, 442 (1973)

OTHER AUTHORITIES:

House Subcommittee on Civil Rights and Constitu-

tional Rights of the Judiciary (February 26,

1974), Testimony of William B. Saxbe

National Advisory Commission on Criminal Justice

Standards and Goals, Report on the Criminal

Justice System

PAGE

10

10

In the

Supreme Court of the United States

OcToBeR TERM, 1974

SI etccaesomsenonsio

JAMES P. LINN,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

To the Honorable Chief Justice of the Supreme Court

of the United States and the Associate Justices of the

Supreme Court of the United States:

Petitioner prays for writ of certiorari to review the

judgment and decree of the United States Court of Appeals

for the Tenth Circuit in the case of United States of America

v. James P. Linn. The judgment was entered on April 9,

1975. Rehearing was denied on May 12, 1975.

-

OPINIONS AND ORDERS BELOW

The order of the United States Court of Appeals deny-

ing the petition for rehearing is reproduced as Appendix A

to this petition. The opinion of the United States Court of

Appeals for the Tenth Circuit is not yet reported and is

reproduced and appended hereto as Appendix B. The order

of the United States District Court for the Western Districi

of Oklahoma is not yet reported and is appended hereto as

Appendix C.

JURISDICTION

Jurisdiction of this Court is invoked pursuant to Title

28 United States Code (U.S.C.), § 1254(1). The judgment

sought to be reviewed was entered by the United States

Court of Appeals for the Tenth Circuit on April 9, 1975.

A petition for rehearing was timely filed and was denied

on May 12, 1975, by the United States Court of Appeals for

the Tenth Circuit.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the order denying Petitioner’s motion to

expunge or alternatively seal his arrest record deprives

him of his fundamental right of privacy and liberty in viola-

tion of the Fifth Amendment concept of personal liberty

and the Bill of Rights as a whole.

2. Whether the United States Court of Appeals for the

Tenth Circuit should have remanded the case for an evi-

dentiary hearing.

ining

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS

Amendment V, United States Constitution:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless gn a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property, with-

out due process of law; nor shall private property be

taken for public use, without just compensation.”

Title 28, United States Code (U.S.C.) § 534:

“(a) The Attorney General shall—

“(1) acquire, collect, classify, and preserve iden-

tification, criminal identification, crime, and other

records; and

“(2) exchange these records with, and for the

official use of, authorized officials of the Federal

Government, the States, cities, and penal and other

institutions.

“(b) The exchange of records authorized by sub-

section (a) (2) of this section is subject to cancellation

if dissemination is made outside the receiving depart-

ments or reiated agencies.

“(c) The Attorney General may appoint officials to

perform the functions authorized by this section.”

Title 28, Code of Federal Regulations (C.F.R.) § 0.85

(fully set out in Appendix D) especially subsection

(b), set forth below:

ws

“Subject to the general supervision and direction of

the Attorney General, the Director of the Federal

Bureau of Investigation shall:

(b) Conduct the acquisition, collection, ex-

change, classification, and preservation of identifica-

tion records, including personal fingerprints volun-

tarily submitted, on a mutually beneficial basis, from

law enforcement and other governmental agencies,

railroad police, national banks, member banks of the

Federal Reserve System, FDIC—Reserve—Insured

Banks, and banking institutions insured by the Fed-

eral Saving and Loan Insurance Corporation; provide

expert testimony in Federal or local courts as to finger-

print examinations; and provide identification as-

sistance in disasters and in missing-persons type cases,

including those from insurance companies.”

STATEMENT OF THE CASE

James P. Linn, Petitioner, an attorney-at-law licensed

to practice in the State of Oklahoma and in the State of

Texas, and seven others were indicted by a grand jury sit-

ting in the Southern District of New York. The indictment

contained sixty-five counts, charging, among other things,

conspiracy, mail fraud, wire fraud, stock fraud, sale of un-

registered securities, and the filing of false reports with

the Securities and Exchange Commission and the American

Stock Exchange. The Petitioner was a named defendant in

fiftv-nine of the sixty-five counts in the indictment.

Subsequent to the return of the aforesaid indictment,

Petitioner was arrested and fingerprinted by the United

States Marshal for the Southern District of New York.

Petitioner and four other defendants requested and

were granted a change of venue to the Western District of

_— =

Oklahoma. Trial of the case was to a jury, and of the fifty-

nine counts naming Petitioner as a defendant, nine were

submitted to the jury. The remaming counts were either

dismissed or consolidated with the nine counts submitted

to the jury.

On February 7, 1974, the jury acquitted Petitioner on

each of the nine counts submitted to it. Petitioner then filed

in the criminal proceeding in which he had been acquitted

a motion requesting the trial court to expunge, remove

and destroy, or alternatively seal, the record of his arrest.

In this motion Petitioner alleged as grounds therefor:

(1) that most of the charges against him had been dis-

missed prior to and during trial; (2) that he had been

acquitted by the jury on all remaining counts of the indict-

ment against him; (3) that future misuse and improper

dissemination of his arrest record was likely; (4) that the

record of his arrest could be used to attack his character

and reputation both as an individual and in his professional

capacity as an attorney-at-law; (5) that his arrest record

nowise serves to protect society, so that any conceivable

public interest in retaming the record of arrest is clearly

outweighed by the possible adverse consequences to him

and his professional practice; and (6) that expungement

of the record of arrest is necessary to insure his constitu-

tional right of privacy.

The Petitioner requested that should the District Court

deem that more material or evidence was necessary for a

just determination of the motion, he be granted an eviden-

tiary hearing. No evidentiary hearing was granted or held.

On May 29, 1974, the District Court denied Petitioner’s

motion to expunge his record of arrest (Appendix C).

enlfine

An Appeal to the United States Court of Appeals for

the Tenth Circuit was properly perfected, briefs were sub-

mitted and oral arguments heard. On April 9, 1975, the

United States Court of Appeals for the Tenth Circuit

affirmed the action of the trial court (Appendix B).

A Petition for Rehearing was filed on April 25, 1975,

seeking a remand for an evidentiary hearing. The rehearing

was denied by order of the United States Court of Appeals

for the Tenth Circuit on the 12th day of May, 1975 (Ap-

pendix A).

THE QUESTION IS SUBSTANTIAL

The present petition for writ of certiorari presents an

important and unresolved constitutional question which

has not been but should be determined by this Court. A

decision by this Court is needed, particularly where fed-

eral law and procedure followed by the Federal Bureau of

Investigation and other data assemblying agencies provides

a wholly inadequate means of safeguarding important

constitutional rights.

There is a growing body of conflicting decisions among

State and federal courts in the area of expunging arrest

records under the theory of a constitutionally guaranteed

or protected right of privacy.

In addition, the substantive issues in this case are novel

issues of national import, affecting the lives of many thou-

sands of American citizens each year who have been ar-

rested and subsequently acquitted of the crimes charged.

=

ARGUMENT

In the remainder of this petition for writ of certiorari,

Petitioner will show that the question presented is substan-

tial and merits review by the Court. Because of the nov-

elty and complexity of the issue, and the limited function

of the petition for writ of certiorari, this petition will not

undertake to develop all arguments in depth.

THE ORDER DENYING PETITIONER’S MOTION TO

EXPUNGE OR ALTERNATIVELY SEAL HIS ARREST REC.

ORD DEPRIVES HIM OF HIS FUNDAMENTAL RIGHT OF

PRIVACY AND LIBERTY IN VIOLATION OF THE FIFTH

AMENDMENT CONCEPT OF PERSONAL LIBERTY AND THE

BILL OF RIGHTS AS A WHOLE.

A. The collection and dissemination of records of arrest

by the Federal Bureau of Investigation.

The Federal Bureau of Investigation, Identification

Division, through the authority vested in the Attorney

General and the Director of the Federal Bureau of Inves-

tigation. under 28 U.S.C. § 534 and 23 C.F.R. § 0.85(b) re-

spectively, maintains a criminal file for identification rec-

ords, fingerprints and records of arrest. Federal, state

and local law enforcement agencies submit fingerprints and

arrest records of arrested persons or suspects in order to

receive information on those persons’ prior criminal activi-

ties. The Bureau reports such information and adds any

new information received through its files. The Division

also receives hundreds of “name check” requests from con-

tributing and non-contributing sources asking for criminal

records of individuals by name without submitting any

ee

individual fingerprints. Where possible and when the in-

quirer gives what the FBI considers a legitimate reason for

the request, the inquiry is processed and the record dis-

seminated. Any local or state official is considered to be

authorized to receive this information if he has something

to do with law enforcement or if he is authorized by statute,

ordinance or rule to fingerprint applicants for employment

or for a permit or a license. Congressmen are also autho-

rized. The division maintains a current list of contributing

or participating agencies which numbers between 7,000 and

8,000, of which only 3,750 are local law enforcement agen-

cies. See Menard v. Mitchell, 328 F.Supp. 718 (D.C. 1971)

at pp. 720-23 and Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir.

1974), for excellent discussions of the operation of the

Identification Division.

The Division has little opportunity to supervise what

is actually done with the arrest records it disseminates. It

is apparent that the local agencies may on occasion pass on

this information to private employers. The Division makes

no regular inspection to prevent this, for it has neither

furds nor sanctions, and accordingly responds only to com-

plaints. Menard v. Mitchell, 328 F.Supp. at pp. 721-22. Con-

sequently, private employers and anyone with the right

kind of connections have access io these files. See “Guilt by

Record,” 1 Calif. Western Law Review, 126 (1965).

The likelihood that information will fall into unautho-

rized and untrained hands is fairly substantial. A study on

the effect of police records of arrest on employment oppor-

tunities in the District of Columbia resulted in the publish-

ing of the Duncan Report which found that the use of such

records by prospective employers was widespread, and the

—I—

consequences severe, even if the charges were subsequently

dismissed. The report found that institutional and other

non-governmental employers in the District of Columbia

area routinely required job applicants to obtain and pro-

vide copies of their arrest records. In Morrow v. District of

Columbia, 417 F.2d 728 (D.C. Cir. 1969), the District Court

in the compliance hearing in that case found that a select

group of about 50 pri, te companies were furnished arrest

records routinely upon request. A total of more than 3,500

arrest records were disseminated weekly at the time the

Duncan committee studied the problem.

The widespread use of arrest records in this country

for “non-criminal” purposes is a matter of general know]-

edge and governmental! concern. In Sampson v. Murray, 415

U.S. 61 (1974), Mr. Justice Douglas in a dissenting opinion

acknowledges this problem. In Menard v. Saxbe (supra)

and Morrow v. District of Columbia (supra), the United

States Court of Appeals for the District of Columbia recog-

nized and dwelt extensively gn this problem, as other courts

have done. The legal community through publications in

legal periodicals have recognized the problem. '

Even the former head of the Justice Department, Attor-

ney General William B. Saxbe, has recognized the critical

1 The seriousness of the arrest record problem is now too well docu-

mented to doubt. See some of the following: “The Arrest Record and

New York City Public Hiring: An Evaluation,’ 9 Columbia Journal

of Law and Social Problems, 442 (1973); Karabian, “Record of Arrest:

The Indelible Stain,” 3 Pacific Law Journal 20 (1972): “Branded:

Arrest Records of the Unconvicted,” 44 Mississippi Law Journal 928

(1973); “Discriminatory Hiring Practices Due to Arrest Records—

Private Remedies,” 17 Villanova Law Review 110 (1971); and “David-

son v. Dill: A Compelling State Interest in Retaining Arrest Records,”

35 University of Pittsburgh Law Review 205 (1973).

=

nature of the problem and the need for prompt action. In

testimony before the House Subcommittee on Civil Rights

and Constitutional Rights of the Judiciary on February 26,

1974, he stated:

“However, people are often denied employment on

the basis of mere arrest records—records which are

provided by criminal justice information systems. This

is fundamentally unfair and must be stopped.”

Saxbe goes on to quote the following excerpt from the

National Advisory Commission on Criminal Justice Stand-

ards and Goals, Report on the Criminal Justice System:

“No longer is it possible to rely on the inefficiency

of information systems for the protection of privacy.

Computer-based information systems require conscious

planning for protection of personal privacy. Constraints

must be imposed on the system to ensure the highest

practicable level of protection is obtained.”

Saxbe implied that the present system's security is not

sufficient to protect the records and prevent unauthorized

inputs and dissemination; hence, the need for comprehen-

sive federal legislation. He then states:

“It is, of course, readily apparent that where a sys-

tem does not have the proper security there is a grave

danger that the individual rights of privacy may be

compromised.”

The list of examples where arrest records are dissem-

mated and then misused is practically endless; the point

being, that the practice of disseminating arrest records is

open and subject to great abuse, which has a severe and

damaging effect upon an individual by circumventing a

basic premise and foundation stone of our cr’minal justice

ates

system. Only a conviction should carry legal significance

as to a person’s involvement in criminal behavior. Where

an individual is found not guilty by a court of law, dissem-

ination of his arrest record places him in an “extra judicial”

double jeopardy by having him face a “second trial” in

which he must prove his innocence to all with access to his

record against a presumption of being associated with crim-

inal behavior. Those having a record disseminated suffer a

deprivation of rights and opportunities without a trial,

without witnesses, without a chance to defend themselves—

in short, without due process of law.

B. The Order Denying Expungement of Petitioner’s

Record of Arrest is a deprivation of petitioner’s

right of privacy protected by the Constitution; more

particularly, the Fifth Amendment concept of per-

sonal liberty and the Due Process clause.

The government’s continufng retention and the pos-

sible dissemination of the record of arrest endangers a

fundamental right of privacy long recognized as inherent

in our constitutional form of goveinment. Referring to an

earlier English case of Entick v. Carrington, 19 Howell’s

State Trials 1029 (1765), the Court in Boyd v. United States,

116 U.S. 616 (1886), at page 630 stated:

“The principles laid down in this opinion affect the

very essence of constitutional liberty and security.

They reach further than the concrete form of the case

then before the Court, with its adventitious circum-

stances; they apply to all invasions on the part of the

government and its employes of the sanctity of a man’s

home and the privacies of life. It is not the breaking of

his doors, and rummaging of his drawers, that consti-

tutes the essence of the offense: but it is the invasion

=

of his indefeasible right of personal security, personal

liberty, and private property, where that right has

never been forfeited by his conviction of some public

offense,—it is the invasion of his sacred right which

underlies and constitutes the essence of Lord Camden’s

judgment. * * * ”

In the recent decision of Roe v. Wade, 410 U.S. 113

(1973), the Court recognized that the right of privacy does

exist under the Constitution. Mr. Justice Blackmun stated

at page 152:

“The Constitution does not explicitly mention any

right of privacy. In a line of decisions, however, going

back perhaps as far as Union Pacific R. Co. v. Botsford,

141 U.S. 250 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734

(1891), the Court has recognized that a right of per-

sonal privacy, or a guarantee of certain areas or zones

of privacy, does exist under the Constitution. In vary-

ing contexts, the Court or individual Justices have,

indeed, found at least the roots of that right in the First

Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89

S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth

and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9,

88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz

v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19

L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S.

616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v.

United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72

L.Ed. 944 (1928) (Brandeis, J., dissenting); in the

penumbras of the Bill of Rights, Griswold v. Connecti-

cut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the

Ninth Amendment, id., at 486, 85 S.Ct., at 1682 (Gold-

berg, J., concurring); or in the concept of liberty guar-

anteed by the first section of the Fourteenth Amend-

ment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43

S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions

make it clear that only personal rights that can be

=

deemed ‘fundamental’ or ‘implicit in the concept of

ordered liberty,’ Palko v. Connecticut, 302 U.S. 319,

325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included

in this guarantee of personal privacy.”

Many of the above mentioned cases, or the basic prin-

ciples found in these cases, have been cited in several recent

state and federal decisions applytag the principle of the

right of privacy in the arrest record area, particularly under

the Fifth Amendment due process clause.

Due process is an elusive concept and its exact bounda-

ries are undefined; its content varies according to specific

factual context. Mr. Justice Fortas in the Application of

Gault, 387 U.S. 1 (1967), stated at page 20:

“Due Process of law is the primary and indispensable

foundation of individual freedom. It is the basic and

essential term in the social compact which defines the

rights of the individual and delimits the powers which

the state may exercise.”’

In United States v. Robel, 389 U.S. 258 (1967), the

Court was concerned with the constitutionalitvy of a Con-

gressional Act relating to subversive activities. In Footnote

11, Mr. Chief Justice Warren wrote:

“We recognized in Greene v. McElroy, 360 U.S., at

492, 79 S.Ct. at 1411, 3 L.Ed.2d 1377, that ‘the right to

hold specific private employment and to follow a

chosen profession free from unreasonable govern-

mental interference comes within the “liberty” and

“property” concepts of the Fifth Amendment.’ ”

* Doe v. Commander, 329 A2d 35 (Md. Cr. App. 1974); Daridson v.

Dill, 503 P.2d 156 (Coil. 1972); State v. Pinkley, 290 N.E.2d 923

(Ohio Com. Pl. 1972); Eddy v. Moore, 5 Wash. App. 334, 487 P.2d

211 (1971); Menard v. Mitchell, 328 FSupp. 218 (D.C. 1971); Men-

ard v. Saxhe, AY8 F.2d 1017 (DC. Cir. 1974).

aniline

The opinion goes on to state at page 265:

“It has become axiomatic that ‘|p]recision of regula-

tion must be the touchstone in an area so closely touch-

ing our most precious freedoms.’ ”

Petitioner contends that the government's retention of

his arrest record violates his rights of liberty, property, and

privacy within the Fifth Amendment. His liberty has been

infringed upon by placing him in an unequal position to

other law abiding citizens. His property rights and freedom

of practicing his chosen profession are jeopardized by the

administrative practice of the Federal Bureau of Investiga-

tion of disseminating arrest records; and his right of pri-

vacy is threatened by such dissemination.

C. Where certain fundamental rights are involved, reg-

ulations limiting these rights may be justified only

by a compelling state interest.

Mr. Justice Harlan in N.A.A.C.P. v. Alabama, 377 U.S.

288 (1964), stated at page 307:

“Th*» Court has repeatedly held that a governmental

purpose to control or prevent activities constitutionally

subject to state regulation may not be achieved by

means which sweep unnecessarily broadly and thereby

invade the area of protected freedoms. See [N.A.A.C.P.

v. State of Alabama] 357 U.S. at 463-464, 78 S.Ct. at

1172-1173. ‘ * * * |T)he power to regulate must be so

exercised as not, in attaining a permissible end, unduly

to infringe the protected freedom.’ Cantwell v. Con-

necticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903.‘ * * *

|E]ven though the governmental purpose be legitimate

and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal liber-

ties when the end can be more narrowly achieved.’

=— =

Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5

L.Ed.2d 231: (Footnote omitted).”

In Griswold v. Connecticut, 381 U.S. 479 (1965), Mr.

Justice Douglas in writing the opinion of the Court, re-

affirmed this holding of the Court at page 485 and extended

it to the concept of right of privacy. Mr. Justice White in

a concurring opinion in Griswold v. Connecticut (supra)

stated at 381 U.S., at 503:

“The nature of the right invaded is pertinent, to be

sure, for statutes regulating sensitive areas of liberty

do, under the cases of this Court, require ‘strict

scrutiny,’ Skinner v. State of Oklahoma, 316 U.S. 535,

541, 62 S.Ct. 1110... .”

Mr. Justice Goldberg, whom the Chief Justice and Mr.

Justice Brennan joined, concurring, stated at page 497:

“In a long series of cases this Court has held that

where fundamental personal liberties are involved,

they may not be abridged by the States simply on a

showing that a regulatory statute has some rational

relationship to the effectuation of a proper state pur-

pose. ‘Where there is a significant encroachment upon

personal liberty, the State may prevail only upon

showing a subordinating interest which is compelling,’

Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct.

412, 417, 4 L.Ed.2d 480. The law must be shown ‘neces-

sary, and not merely rationally related to, the accom-

plishment of a permissible state policy.” McLaughlin v.

State of Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290,

13 L.Ed.2d 222. See Schneider v. State of New Jersey,

Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151,

84 L.Ed. 155.”

onlin

The latest decision of the Court in this area is Roe v.

Wade (supra), where Mr. Justice Blackmun issued a clear

mandate with regard to legislation limiting fundamental

rights—more particularly, the right of privacy. Mr. Justice

Blackmun at page 155 stated:

“Where certain ‘fundamental rights’ are involved,

the Court has held that regulation limiting these rights

may be justified only by a ‘compelling state interest,’

Kramer vy. Union Free School District, 395 U.S. 621,

627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro

v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331,

299 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S.

398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and

that legislative enactments must be narrowly drawn

to express only the legitimate state interests at stake.

Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at

1682; Aptheker v. Secretary of State, 378 U.S. 500, 508,

84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v.

Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-

905, 84 L.Ed. 1213 (1940); see Eisenstadt v. Baird, 405

US.. at 460, 463-464, 92 S.Ct., at 1042, 1043-1044

(White, J., concurring in result).”

The United States Court of Appea!s for the Tenth Cir-

cuit in its opinion in the case now brought before this Court

on a petition for writ of certiorari avoided entirely the issue

raised by Petitioner that the government must demonstrate

a compelling state interest in retaining the arrest record

under the statute and regulation authorizing retention.

Instead, the Court of Appeals implied that the burden was

on Petitioner to demonstrate an invasion of privacy suffi-

cient to override the government's justification for retain-

ing his record (App. B, page vi).

= =

The value of an arrest record and fingerprints depends

upon two factors: an assumption that the individual arrested

did in fact commit the crime for which he was arrested, and

that his commission of this crime indicates a likelihood that

other crimes will be committed. Eddy v. Moore, 5 Wash.

App. 334, 487 P.2d 211 (1971). Petitioner’s acquittal negates

both premises. He has committed no crime, he has been

tound nc* guilty in a trial by jury, and retention of his rec-

ord of arrest cannot be justified as criminal identification.

The very nature of the crimes the Petitioner was charged

with by the government are not of the clandestine type

where records of arrest and fingerprints are necessary to

facilitate future investigations. Criminal investigation and

the interests of society are not subserved by the retention

of Petitioner’s record of arrest.

The Washington Court of Appeals in Eddy v. Moore

(supra) stated at 487 P.2d at 217:

“The courts have recognized in Kalish and Menard

that following an acquittal, the scales of justice re-

quired the balancing on one side of a plaintiff's legiti-

mate concern over the improper use of, labeling, or

existence of his fingerprints, photographs, and arrest

records against the government's bald assertion of a

right to hold them. We have now reached the point

where our experience with the requirements of a free

society demands the existence of a right of privacy in

the fingerprints and photographs of an accused who

has been acquitted, to be at least placed in the balance,

against the claim of the state for a need for their re-

tention.

“We believe the right of an individual, absent a com-

pelling showing of necessity by the gove:nmment, to the

return of his fingerprints and photographs, upon an

-_—

acquittal, is a fundamental right implicit in the con-

cept of ordered liberty and that it is as well within the

penumbras of the specific guarantees of the Bill of

Rights ‘formed by emanations from these guarantees

that help give them life and substance.’ Griswold v.

Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965).

“It will take a compelling showing on the part of

the state to justify a retention of the fingerprints and

photographs. * * * ”

The systematic recordation and dissemination of infor-

matiga on an individual is a form of surveiliance and con-

trol which has a chilling effect on the freedoms upon which

the government is founded—life, liberty and the pursuit of

happiness as well as due process under the law. Where the

government engages in such conduct which clearly invades

an individual’s right of privacy, its action cannot be per-

mitted unlcss it can show a compelling public necessity in

its action. Menard v. Mitchell, 328 F.Supp. at 726.

While some conduct against society may properly sub-

ject an individual to limitations upon his freedoms and

right of privacy, such as conviction for criminal acts, where

charges are made without adequate supporting evidence as

tested by the judicial process, the records of arrest should

not be indiscriminately broadcast under governmental

auspices. Developments in technological ability to accumu-

Jate and disseminate information on individuals is a grow-

ing concern of society and the law which must be met by

the courts with the constitutionally recognized right of pri-

vacy to insure basic freedoms guaranteed by our democracv.

Menard v. Mitchell, 328 F.Supp. at 725.

=_—S

THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT SHOULD HAVE REMANDED THE CASE

FOR AN EVIDENTIARY HEARING.

Reproduced as Appendix E to this petition 1s the peti-

tion for rehearing filed by Petitioner in the United States

Court of Appeals for the Tenth Circuit. In said petition,

the Appellate Court’s attention was called to that portion

of the record on appeal indicating a request to the District

Court for an evidentiary hearing which was in effect over-

ruled by the District Court issuing its order denying ex-

pungement (Appendix C).

The Court of Appeals in its opinion (Appendix B)

relied heavily upon the lack of showing of a demonstrated

invasion of privacy in determining that the arrest record

should not be expunged (App. B, page vi). Petitioner also

brought to the Appellate Court’s attention the argument

raised in Petitioner’s brief before it that the government

had the burden of demonstrating a compelling state inter-

est in retaining the record of arrest which could only be

shown in an evidentiary hearing.

There must be a showing on a case by case basis how

far the government may infringe upon an individual’s right

of privacy in the area of arrest records, and the Court of

Appeals’ decision acknowledges such a method (App. B,

page 5). Both sides must ke given a fair opportunity to

present evidence in their own behalf, whether it be incum-

bent upon the Petitioner to show a violation of his right of

privacy and no governmental interest in retaining his arrest

record as the Court of Appeals determined, or upon the

=

governmcnt to show a compelling state interest in retain-

ing the record of arrest as the Petitioner contends.

CONCLUSION

For the rcasons stated, it is respectfully submitted that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

JAMES P. LINN, pro se

of

Linn, HELMS & KIRK

410 Fidelity Plaza

Oklahoma City, Oklahoma 73102

June, 1975

APPENDIX A

MARCH TERM — MAY 12, 1975

Before Honorable Jean S. Breitenstein, Honorable Robert

H. McWilliams, and Honorable William E. Doyle, Circuit

Judges

UNITED STATES OF AMERICA,

)

)

Plaintiff-Appellee, )

Vv. ) No. 74-1397

)

)

)

)

JAMES P. LINN,

Defendant-Appellant.

This matter comes on for consideration of appellant’s

petition for rehearing filed April 25, 1975, in the captioned

cause.

Upon consideration whereof, the petition for rehearing

is denied.

s Howard K. Phillips

HOWARD K. PHILLIPS

Clerk

a |

APPENDIX B

PUBLISH

FILED

APR 9 1975

HOWARD K. PHILLIPS

Clerk, United States

Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NO. 74-1397

UNITED STATES OF AMERICA, )

) Appeal from the

Plaintiff-Appellee, ) | United States

) District Court for

V. ) the Western District

) of Oklahoma.

JAMES P. LINN, ) (D.C. No.

) CR-73-131)

Defendant-Appellant. )

Charles R. Hollen, Attorney, Department of Justice (Gary

D. Jackson, Attorney, Department of Justice, on the brief),

for Plaintiff-Appellee.

James P. Linn (Linn, Helms & Kirk, and Mark A. Robert-

son, Legal Intern, on the brief), for Defendant-Appellant.

Before BREITENSTEIN, McWILLIAMS and DOYLE, Cir-

cuit Judges.

—li—

[APPENDIX]

McWILLIAMS, Circuit Judge.

This is an appeal from an order of the trial court de-

nying the defendant’s motion to expunge, remove and de-

stroy the record of his arrest. Under the circumstances

disclosed by the record here before us, we affirm the ac-

tion of the trial court.

James P. Linn, an attorney-at-law licensed to practice

in the State of Oklahoma, appears in this court pro se.

Linn and seven others were indicted by a grand jury sit-

ting in the Southern District of New York. The indictment

contained some sixty-five counts, charging, among other

things, conspiracy, mail fraud, wire fraud, stock fraud, sale

of unregistered securities, and the filing of false reports

with the Securities and Exchange Commission and the

American Stock Exchange. Linn was a named defendant

in fifty-nine of the sixty-five counts in the indictment.

Subsequent to the return of the aforesaid indictment,

Linn was arrested and fingerprinted by the United States

Marshal for the Southern District of New York.

Linn and four other defendants requested a change of

venue to the Western District of Oklahoma. This request

was granted. Trial of the case was to a jury, and of the

fifty-nine counts naming Linn as a defendant, nine were

submitted to the jury. The remaining counts were either

dismissed or in some manner consolidated with the nine

counts submitted to the jury.

The jury acquitted Linn on each of the nine counts

submitted to it. Linn then filed in the criminal proceeding

in which he had been thus acquitted a motion requesting

the trial court to expunge, remove and destroy the record

of his arrest. In this motion Linn alleged as grounds there-

for that most of the charges against him had been dis-

missed prior to and during trial, and that he had been

acquitted by the jury on all remaining counts of the in-

—iv—

[APPENDIX]

dictment. Linn further alleged in his motion to expunge:

(1) that future misuse and improper dissemination of his

record of arrest was “likely”; (2) that the record of his

arrest “could be” used to attack his character and repu-

tation both as an individual and in his professional capacity

as an attorney-at-law; (3) that Linn’s arrest record in no-

wise serves to protect society, so that any conceivable pub-

lic interest in retaining the record of arrest is clearly out-

weighed by the possible adverse consequences to him and

his professional practice; and (4) that expungement of the

record of his prior arrest is necessary to insure his con-

stitutional right of privacy.

No evidentiary hearing was held, or apparently re-

quested, in connection with Linn’s motion to expunge,

though the matter was fully briefed by both Linn and the

Government. The trial court then denied Linn’s motion to

expunge his record of arrest, and this appeal follows.

Traditionally, courts have been of the view that the

matter of expunging an arrest record where the arrestee

has been acquitted was inappropriate for judicial action,

and that the entire matter was more appropriate for legis-

lative action. United States v. Dooley, 364 F.Supp. 75, at

79 (E.D.Pa. 1973). However, there are a number of com-

paratively recent cases which indicate quite clearly that

in a proper case the courts may themselves order an ex-

punction of an arrest record. Requests to expunge have

arisen in a variety of procedural settings. For example, re-

quests to expunge are frequently made as a part of the

relief requested in civil rights proceedings, of one type or

another, brought against state or county officials. See Sulli-

van v. Murphy, 478 F.2d 938 (D.C.Cir. 1973), cert. denied,

414 U.S. 880 (1973); Wilson v. Webster, 467 F.2d 1282 (9th

Cir. 1972): United States v. McLeod, 385 F.2d 734 (5th Cir.

1967); Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966); Bil-

ick v. Dudley, 356 F.Supp. 945 (S.D.N.Y. 1973); Wheeler v.

Goodman, 306 F.Supp. 58 (W.D.N.C. 1969), vacated on

—y—

[APPENDIX]

other grounds, 401 U.S. 987 (1971); and Hughes v. Rizzo,

282 F.Supp. 881 (E.D. Pa. 1968).

Requests to expunge arrest records have also been

frequently made in postconviction proceedings. See Rogers

v. Slaughter, 469 F.2d 1084 (5th Cir. 1972); Kowall v.

United States, 53 F.R.D. 211 (W.D.Mich. 1971); and Sever-

son v. Duff, 322 F.Supp. 4 (M.D.Fla. 1970).

Similar requests have also been made in actions brought

directly against the actual custodian of the records sought

to be expunged. See Menard v. Saxbe, 498 F.2d 1017 (D.C.

Cir. 1974); Gomez v. Wilson, 323 F.Supp. 87 (D.C.D.C.

1971); Davidson v. Dill, 503 P.2d 157 (Colo. 1972); and

Eddy v. Moore, 487 P.2d 211 (Wash.App. 1971).

Finally, requests to expunge have been made, as in

the instant case, in the criminal proceeding in which the

arrestee was acquitted. See Morrow v. District of Columbia,

417 F.2d 728 (D.C.Cir. 1969); United States v. Seasholtz.

376 F.Supp. 1288 (N.D.Okla. 1974); United States v. Dooley,

364 F.Supp. 75 (E.D.Pa. 1973); United States v. Rosen, 343

F.Supp. 804 (S.D.N.Y. 1972); and United States v. Kalish,

271 F.Supp. 968 (D.Puerto Rico, 1967).

Under the authorities above cited it is fairly well estab-

lished, then, that courts do possess the power to expunge

an arrest record where the arrestee has been acquitted.

However, there appears to be no definitive, all-purpose rule

to govern requests of this nature, and to a considerable de-

gree each case must stand on its own two feet. The cases

above cited do indicate that the power to expunge an ar-

rest record is a narrow one, and should not be routinely

used whenever a criminal prosecution ends in an acquittal,

but should be reserved for the unusual or extreme case.

Certain of the cases call for a “balancing” of the equities

between the Government’s need to maintain extensive rec-

ords in order to aid in general law enforcement and the

individual’s right of privacy.

_——

[APPENDIX]

Under the cases above cited, where the arrest itself

was an unlawful one. or where the arrest represented har-

assing action by the police, or where the statute under

which the arrestee was prosecuted was itself unconstitu-

tional, courts have ordered expunction. However, it would

appear that an acquittal, standing alone, is not in itself

sufficient to warrant an expunction of an arrest record.

United States v. Seasholtz, 376 F.Supp. 1288 (N.D.Okla.

1974); United States v. Dooley, 364 F.Supp. 75 (E.D.Pa.

1973); and United States v. Rosen, 343 F.Supp. 804 (S.D.

N.Y. 1972). Let us examine the facts of the instant case in

the light of the authorities above mentioned.

Linn's arrest was a lawful one, pursuant to an indict-

ment returned by a duly constituted grand jury sitting in

the Southern District of New York. The charges set forth

in the indictment were lawful ones not subject to any con-

stitutional infirmity. Although Linn was no doubt severely

inconvenienced by the return of the indictment, there is

nothing to indicate any harassing action, as such, by any

governmental agency. On trial of the matter, the trial judge

held there was sufficient incriminating evidence against

Linn to require submission of at least nine counts to the

jury. And in acquitting, the jury found, in effect, only that

the Government had not proven Linn’s guilt bevond a rea-

sonable doubt.

Linn argues on appeal that the Government’s reten-

tion of his arrest records is an invasion of his right of

privacy. There was no showing, however, that the retained

records have been, or will be, used improperly or intru-

sively against Linn. In fact, the so-called “arrest” record

now on file with the F.B.I. clearly shows Linn was found

not guilty of the charges against him. Thus, there is no

demonstrated invasion of privacy which overrides the Gov-

ernment’s justification in keeping the records.

So, the instant case really boils down to whether the

fact that Linn was acquitted is in itself sufficient to require

—vii—

[APPENDIX]

the trial court to expunge his record of arrest. We hold

that it is not.

Judgment affirmed.

APPENDIX C

FILED

MAY 29 1974

Rex B. HAWKS

Clerk, U. S. District Court

By Zeta M. Cowan

Deputy

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff;

Vs.

No. CR-73-131

JAMES P. LINN,

EDWARD J. BOLKA,

JIMMIE E. MADOLE, et al.,

ee eee eee

Defendants.

ORDER

Each of the Defendants James P. Linn, Edward J.

Bolka and Jimmie E. Madole has moved for an Order for

the expunction or sealing of the records and all accompany-

ing pertinent materials relating to records of his arrest con-

cerning alleged criminal offenses under federal law which

were dismissed prior to trial or of which he was acquitted

after trial in the United States District Court for the West-

ern District of Oklahoma in Criminal Case No. 73-131. They

—viii—

[APPENDIX]

have filed exhaustive briefs in support of their respective

Motions and in reply to the Government’s response.

After thorough consideration of the Motions and briefs

and after exhaustive research on the part of the Court and

following a careful reading of the opinions in all reported

federal cases, the Court finds that the Motion of each De-

fendant to expunge or to seal the record of his arrest pres-

ently in the hands of all governmental agencies should be

denied. Accordingly,

IT IS ORDERED that the respective Motions of the

Defendants James P. Linn, Edward J. Bolka and Jimmie E.

Madole for an Order to expunge or to seal, in the hands

of all governmental agencies, the record of their arrests for

alleged crimes in violation of the laws of the United States

and respecting which alleged crimes motions to dismiss

were sustained or verdicts of acquittal were returned fol-

lowing trial in criminal cause no CR-73-131 in the District

Court of the United States for the Western District of

Oklahoma, be and the same are hereby denied.

The Clerk of the Court is directed to mail a copy

hereof to counsel of record.

DATED this 29th day of May, 1974.

s Luther B. Eubanks

Luther B. Eubanks

United States District Judge

ATTEST: A true copy of the original

Rex B. Hawks, Clerk

By s’ Judith E. Morgan

Deputy

=)

APPENDIX D

Subpart P—Federa! Bureau of Investigation

Cross REFERENCE: For regulation pertaining to the Fed-

eral Bureau of Investigation, see Part 3 of this chapter.

$0.85 General functions.

Subject to the general supervision and direction of the

Attorney General, the Director of the Federal Bureau of

Investigation shall:

(a) Investigate violations of the laws of the United

States and collect evidence in cases in which the United

States is or may be a party in interest, except in cases in

which such responsibility is by statute or otherwise spe-

cifically assigned to another investigative agency.

(b) Conduct the acquisition, collection, exchange,

classification, and preservation of identification records,

including personal fingerprints voluntarily submitted, on a

mutually beneficial basis, from law enforcement and other

governmental agencies, railroad police, national banks,

member banks of the Federal Reserve System, FDIC-

Reserve-Insured Banks, and banking institutions insured

by the Federal Savings and Loan Insurance Corporation;

provide expert testimony in Federal or local courts as to

fingerprint examinations; and provide identification assist-

ance in disasters and in missing-persons type cases, includ-

ing those from insurance companies.

(c) Conduct personnel investigations requisite to the

work of t..e Department of Justice and whenever required

by statute or otherwise.

(d) Carry out the Presidential directive of September

6, 1939, as reaffirmed by Presidential directives of January

8, 1943, July 24, 1950, and December 15 1953, designating

the Federal Bureau of Investigation to take charge of in-

-—X-—

[APPENDIX]

vestigative work in matters relating to espionage, sabotage,

subversive activities, and related matters.

(e) Establish and conduct law enforcement training

programs to provide training for State and local law en-

forcement personnel; operate the Federal Bureau of In-

vestigation National Academy; develop new approaches,

techniques, systems, equipment, and devices to improve

and strengthen law enforcement and assist in conducting

State and local training programs, pursuant to section 404

of the Omnibus Crime Control and Safe Streets Act of

1968, 82 Stat. 204.

(f) Operate a central clearinghouse for police statistics

under the Uniform Crime Reporting Program, and a com-

puterized nationwide index of law enforcement informa-

tion under the National Crime Information Center.

(g) Operate the Federal Bureau of Investigation Lab-

oratory, to serve not only the Federal Bureau of Investiga-

tion, but also to provide, without cost, technical and scien-

tific assistance, including expert testimony in Federal or

local courts, for all duly constituted law enforcement agen-

cies, other organizational units of the Department of Jus-

tice, and other Federal agencies, which may desire to avail

themselves of the service.

(h) Make recommendations to the Civil Service Com-

mission in connection with applications for retirement un-

der 5 U.S.C. 8336(c).

(i) Investigate alleged fraudulent conduct in connec-

tion with operations of the Federal Housing Administration

and other alleged violations of the criminal provisions of

the National Housing Act, including section 1010 of title 18

of the United States Code.

(j) Exercise the power and authority vested in the

Attorney General by section 201 of the Department of Jus-

tice Appropriation Act, 1973, Public Law 92-544, 86 Stat.

1115, to approve exchanges of identification records with

—Xj——

(APPENDIX)

State and local governments for purposes of employment

and licensing.

[Order No. 423-69, 34 F.R. 20388, Dec. 31, 1969, as amended

by Order No. 498-12, 37 F.R. 25917, Dec. 6, 1972]

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

)

)

Plaintiff-Appellee, )

-VS- ) No. 74-1397

)

)

)

)

JAMES P. LINN, et al.,

Defendants-Appellant.

PETITION FOR REHEARING

The appellant, James P. Linn, respectfully petitions

this Honorable Court for a rehearing of the above entitled

cause with respect to remanding said cause to the Western

District of Oklahoma for an evidentiary hearing for the

purpose of demonstrating a violation of appellant’s right

of privacy and to show that there issno overriding Govern-

ment justification for retaining appellant’s arrest record.

James P. Linn reserves his argued position as to each

of the points of appeal, but in this petition, addresses him-

self solely to the issue of whether this Court’s opinion rests

heavily upon the lack of evidence in the record directed

towards the right of privacy issue and the Government’s

interest in retaining arrest records issue, and whether ap-

pellant should be granted a remand for an evidentiary

hearing.

—xii—

[APPENDIX]

This Court erred with respect to its statement on page

3 of its opinion that “no evidentiary hearing was held, or

apparently requested, in connection with Linn’s motion to

expunge. .. .” The appellant calls to the Court’s attention,

Vol. I, page 82 of the Record on Appeal where the appel-

lant states:

“The ex-defendant, James P. Linn, therefore prays

that the Court order expungement of his record of

arrest on the basis of the above mentioned facts and

cited authority. Further, the defendant requests that

should the Court deem that more material or evidence

is necessary for a just determination of this motion,

he be granted an evidentiary hearing with sufficient

time to prepare for it.” |Emphasis added |

The District Court failed to act on appellant’s request

for an evidentiary hearing and by issuing its order denying

the requested relief for expungement, it in effect overruled

the request for an evidentiary hearing.

This Court’s opinion relies heavily upon the lack of

showing or demonstrated invasion of privacy in determin-

ing that the record should not be expunged (page 6 of the

opinion). The Government, by attachment as an Appendix

to its Brief, introduced the arrest record on file at the

F.B.I. without the benefit of an evidentiary hearing to de-

termine its accuracy, its value to the F.B.I., or any over-

riding Government interest in its retention. The appellant

contends that the consideration of only the arrest record,

without the opportunity for appellant to present evidence

to support his position, denies appellant a fair opportunity

to have his position justly adjudicated.

Appellant contended in his appellate briefs and still

contends that under constitutional tests propounded by the

Supreme Court in recent years | Roe v. Wade, 410 U.S. 115,

93 S.Ct. 705, 35 L.Ed.2d 147 (1973)]| any regulations limit-

ing fundamental rights may be justified only by a compcl-

—xili—

[APPENDIX]

ling state interest. This can only be shown in an evidentiary

hearing wherein the Government interest in arrest records

is shown and balance against the individual’s right of priv-

acy. There must be a showing on a case by case basis how

far the Government may infringe upon the right of privacy

of an individual citizen. This Court’s opinion supports this

case by case method of determination (page 5) and in

order to arrive at a just result, evidence must be presented.

The appellant, James P. Linn, therefore states that a

request for an evidentiary hearing was made by appellant

but denied by the District Court, and that in order for a

just determination of the issues before the Court and to

be consistent with the Court’s opinion this action should

be remanded to the Western District of Oklahoma for an

evidentiary hearing.

Respectfully submitted,

s’ James P. Linn

James P. Linn, pro se

of

LINN, HELMS & KIRK

Suite 410 Fidelity Plaza

Robert S. Kerr at Robinson

Oklahoma City, Oklahoma 73102

(405) 239-6786

CERTIFICATE OF MAILING

This will certify that the undersigned mailed two true

and correct copies of the above and foregoing Appellant’s

Petition for Rehearing to Mr. Charles R. Hollen, Attorney,

U. S. Department of Justice, P.O. Box 14142, Washington,

D. C. 20044, this 23rd day of April, 1975, with postage fully

prepaid thereon.

s/ James P. Linn

James P. Linn

CERTIFICATE OF MAILING

I hereby certify that on the day of June, 1975,

three true and correct copies of the above and foregoing

Petition for Writ of Certiorari were mailed air mail, return

receipt requested, to each of the following: The Solicitor

General, Department of Justice, Washington, D.C. 20530,

Charles R. Hollen, Attorney, and Gary D. Jackson, At-

tornev, United States Department of Justice, Box 14142,

Washington, D.C. 20044.

The above listed parties are all of the parties required

to be served.

James P. Linn

+ well