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Request for expungement in federal court denied

Peter Vieth//January 25, 2021

Request for expungement in federal court denied

Peter Vieth//January 25, 2021//

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As the Virginia General Assembly faced competing plans for allowing low-level felony offenders to shed their state criminal records, a federal judge declined to clear a defendant’s record even though prosecutors dropped all charges in the case.

The expungement request came from a former mental health clinical director accused in 2018 of helping to pad Medicaid bills.

The defendant claimed his now-dismissed indictment on a Medicaid fraud conspiracy charge is preventing him from getting work in his field, but the judge said the federal court lacked jurisdiction to consider his expungement request. Moreover, the circumstances would not warrant expungement even if the court had the power to consider it, the judge said.

The Jan. 12 opinion from U.S. District Judge Michael F. Urbanski is United States v. Robrecht (VLW 021-3-011).

Charge never refiled

Alfred L. Robrecht worked as clinical director at East Mental Health Clinic LLC in Roanoke until the company closed in 2019, according to Urbanski’s opinion. The Justice Department had announced a 73-count indictment in 2018 against the company and five individuals.

The defendants were accused of overcharging Medicaid by $45 million, making the case the largest ever health care fraud enforcement action by a Justice Department Medicare Fraud Strike Force, the government said.

But federal prosecutors could not get their case together in time. Hampered by 3.5 million pages of documents to process, the feds were unable to meet discovery deadlines, according to previous VLW reporting. Even though Urbanski allowed the government to dismiss the charges without prejudice in 2018, the government never filed new charges.

Robrecht came back to court on Feb. 13 asking expungement of his criminal record and his affiliation with the criminal case, Urbanski said. Represented by Christopher K. Kowalczuk of Roanoke, Robrecht claimed the allegations were causing him “severe economic harm and public humiliation.”

His indictment “is tantamount to a conviction in the eyes of a prospective employer,” Robrecht contended. Robrecht said he was frozen out of banking services and had been stopped at the Canadian border because a computer system showed him to be “under indictment and on probation.” He asked to have his motion sealed and to proceed under a pseudonym.

The government opposed Robrecht’s motion, arguing federal district courts lack ancillary jurisdiction over motions for equitable expungement.

Need for open records cited

Urbanski looked to the ruling of the 4th U.S. Circuit Court of Appeals in the case of a physician who claimed career damage after a publicized conviction was vacated. The appeals court found no authority allowing federal courts to expunge criminal records and no connection between the criminal case and the consequences alleged by the doctor. The Fourth Circuit said it would join “the unified front of circuit authority” in rejecting the doctor’s claim in United States v. Mettetal (VLW 017-2-208-A).

In Mettetal, the Fourth Circuit also declared the judiciary and the public have an independent interest in maintaining a full and fair account of court proceedings and the judiciary’s role in vindicating the constitutional rights of the accused. The same analysis applied to Robrecht’s expungement motion, Urbanski said.

“Were the court to adopt Robrecht’s reasoning, every defendant against whom charges were dismissed would be entitled to expungement,” Urbanski wrote. “In addition, the same concern expressed by the court in Mettetal about the need to maintain a full and fair account of court proceedings exists here. This case was dismissed by the court without prejudice after extensive briefing about delays in prosecuting the case and the judiciary and the public have an interest in keeping open the record of the proceedings,” the judge said.

Urbanski rejected arguments based on the prohibition of “cruel and unusual punishment” in the Eighth Amendment

“While the court is sympathetic to Robrecht’s difficulties following the indictment and dismissal of the charges against him, the fact remains that he has been neither convicted, nor, importantly for the Eighth Amendment analysis, punished, for any crime,” Urbanski wrote.

Urbanski was unimpressed that, unlike Mettetal, Robrecht was never convicted. That argument ignored the jurisdictional bar recognized by the Fourth Circuit, the judge said. And while an Eastern District judge allowed expungement in a 1990 case, the government had acknowledged a “mistake” in that prosecution, Urbanski said.

“While there is no indication that Robrecht will be reindicted on the charges in this case, the government has not stated that his arrest was a mistake and has made no affirmative statement as to his innocence,” Urbanski wrote.

“The court shares Robrecht’s frustration that there does not appear to exist a mechanism by which he can clear his name. However, the law is clear that the court does not have ancillary jurisdiction over his claim, and without jurisdiction, the court cannot act,” the judge said.

Urbanski refused the request for expungement and denied the motion to seal the record and allow use of a pseudonym.

The government was represented by special assistant U.S. attorneys Nicole S. Terry and David W. Tooker.

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