U.S. v PFEIFFER, Case No. 04 CR 793, U.S. District Court, N.D. Illinois, Eastern Division.

(Editor’s note:  This is a District Court decision NOT 7th Circuit Court of Appeals.)

April 7, 2016

In 2007, Brian Pfeiffer pled guilty to possession with intent to distribute a controlled substance, Ecstasy. Pfeiffer now moves to expunge the records of his conviction. The Court denies Pfeiffer’s motion.

Pfeiffer had been successful in putting his past behind him and maintaining uninterrupted employment. In 2015, Pfeiffer failed a background check mandated by Wynn Hotels. The background check came as a result of a new policy instituted by Wynn barring persons with criminal convictions from promoting events associated with the chain.

The Seventh Circuit has established a balancing test to determine whether expungement is appropriate in a given case: “if the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate.” United States v. Flowers,389 F.3d 737, 739 (7th Cir. 2004). Expungement is considered an extraordinary remedy, and the adverse consequences to the defendant must be unwarranted and significant before the defendant’s interest outweighs the strong public interest in maintaining accurate and unaltered records. Id at 740.

There is no denying that Pfeiffer suffered adverse consequences from his narcotics conviction. But this does not justify expungement: the Seventh Circuit has determined that the adverse consequences must be unwarranted. Courts do not consider a formerly convicted defendant’s difficulty in finding or keeping employment to be an unwarranted consequence of a criminal conviction.

In attempting to show that he has faced unwarranted adverse consequences stemming from his conviction, Pfeiffer points he has been precluded from working with one company. He has not shown that the Wynn ban prevents him from otherwise conducting business in Las Vegas. Indeed, Pfeiffer’s ability to successfully build a business from the ground up despite his legal struggles cuts against his argument that his conviction is likely to prevent his employment in the future.

If Pfeiffer were able to show adverse consequences that were “uniquely significant” as required by Flowers, the Court would support his request for expungement. The facts here do not support expungement of the records of Pfeiffer’s conviction.

The Court denies defendant’s motion for expungement.

By:  Federal Criminal Defense Attorney Michael J. Petro

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