CLD-399                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-2676
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                               STEVEN SCHWARTZ,
                                                 Appellant
                        __________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-88-cr-00215-001)
                           District Judge: Jeffrey L. Schmehl
                       __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   September 1, 2016

              Before: FISHER, JORDAN, and VANASKIE Circuit Judges

                           (Opinion filed: September 15, 2016)
                                     ____________

                                        OPINION *
                                      ____________


PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Steven Schwartz appeals from an order of the District Court denying his motion to

expunge certain judicial records. For the reasons that follow, we will summarily affirm.

       Schwartz was convicted in 1989 of two counts of bank fraud, in violation of 18

U.S.C. § 1344(a), following a trial before a jury in the United States District Court for the

Eastern District of Pennsylvania. He was fined on one count by U.S. District Judge

Marvin Katz and placed on probation for five years on the condition that he pay the fine

and make restitution to the bank. Judge Katz sentenced him on the other count to a term

of imprisonment of 18 months. We affirmed the criminal judgment, see United States v.

Schwartz, 899 F.2d 243 (3d Cir. 1990), and the U.S. Supreme Court denied certiorari.

Schwartz served the 18-month term of imprisonment. After he was released from prison,

Judge Katz found him guilty of violating his probation, revoked it, and remanded him to

the custody of the Attorney General to serve a revocation term of six months, see United

States v. Schwartz, 851 F. Supp. 692, 695 (E.D. Pa. 1994). We affirmed, see C.A. Nos.

94-1666 & 94-1769, and the U.S. Supreme Court denied certiorari.

       At issue in this appeal, on October 30, 1995, Judge Katz again revoked Schwartz’s

probation; Schwartz was remanded to the custody of the Attorney General to serve

another year of imprisonment, see United States v. Schwartz, 903 F. Supp. 852, 857-58

(E.D. Pa. 1995). Schwartz appealed and we reversed on January 31, 1996, see C.A. 95-

1941, directing his immediate release because the time for probation had expired. See

generally United States v. Schwartz, 379 F. Supp.2d 716, 718 n.4 (E.D. Pa. 2005). In the

meantime, Schwartz was convicted of new fraud charges, see D.C. Crim. No. 03-cr-

00035-1, and sentenced to a term of imprisonment of 225 months. We affirmed this

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criminal judgment, see United States v. Schwartz, 315 F. App’x 412 (3d Cir. 2009), and

Schwartz remains incarcerated pursuant to this sentence.

       In March 2015, Schwartz filed a motion in his original criminal case for the

expungement of all records pertaining to Judge Katz’s October 1995 probation revocation

decision, alleging that Judge Katz had proceeded without jurisdiction – because his

probation had expired – and thus that his findings of fact and conclusions of law, which

are set forth in Schwartz, 903 F. Supp. at 857-58, are a legal nullity. Schwartz asserted

that he was seeking a commutation from President Barack Obama and that his

Presentence Investigation Report contained information pertaining to the improper

second revocation, which would prejudice his application.

       In an order entered on May 9, 2016, the District Court denied the motion to

expunge. The Court applied the balancing test set forth in Paton v. La Prade, 524 F.2d

862, 868 (3d Cir. 1975), and concluded that there was nothing extraordinary about

Schwartz’s case and that he had not made the necessary showing for expungement of the

results of his second revocation hearing.

       Schwartz appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

advised the parties that we might take summary action in this appeal under Third Cir.

LAR 27.4 and I.O.P. 10.6 and invited each party to submit argument in writing. Neither

party has responded.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. District

Courts have jurisdiction over petitions for expungement “in narrow circumstances: where

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the validity of the underlying criminal proceeding is challenged.” United States v.

Rowlands, 451 F.3d 173, 177 (3d Cir. 2006). See also United States v. Noonan, 906 F.2d

952, 956 (3d Cir. 1990). Determining whether to direct expungement involves a

balancing of these two interests: the harm caused to an individual by the existence of any

records and “the utility to the Government of their maintenance.” Paton, 524 F.2d at 869

(citations omitted). “Factors to be weighed in balancing are the accuracy and adverse

nature of the information, the availability and scope of dissemination of the records[;] the

legality of the methods by which the information was compiled[;] the existence of

statutes authorizing the compilation and maintenance, and prohibiting the destruction, of

the records[;] and the value of the records to the Government.” Id. (footnote omitted).

Expunction of criminal court records is an extraordinary remedy, and is not automatically

granted for convictions overturned on constitutional or other grounds. See Noonan, 906

F.2d at 956-57.

       As noted by the District Court, the essential nature of the information Schwartz

seeks to expunge is accurate: his probation was revoked for a second time, he appealed,

and we reversed and ordered his immediate release. Moreover, the value of criminal

court records to the Government cannot be disputed. Schwartz has cited no statute

requiring expunction of records under the circumstances presented here. He has not been

pardoned, his sentence has not been commuted, and any suggestion that either of these

things will happen is speculative. Accordingly, the District Court properly denied his

motion for expungement on the basis that few if any factors weigh in favor of

expungement.

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      For the foregoing reasons, we will summarily affirm the order of the District Court

denying Schwartz’s motion to expunge certain judicial records.




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