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.

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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

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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

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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

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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.

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   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

https://www.leagle.com/decision/infdco20150924a28

AKA Diego MasMarques

See https://www.plainsite.org/dockets/3481u5mto/court-of-appeals-for-the-first-circuit/us-v-masmarques/