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Rose v. United States

August 4, 2005


Appeal from the Superior Court of the District of Columbia (F-431-99). (Hon. Frederick D. Dorsey, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued February 2, 2005

Before WAGNER, Chief Judge, and FARRELL and RUIZ, Associate Judges.

Appellant challenges the trial court's denial of his motion, made pursuant to Criminal Rule 118, to seal the records of his arrest in January 1999. Following an evidentiary hearing, the trial court concluded that appellant had not met his burden of proving, by clear and convincing evidence, that he had not committed a crime, and thus was not entitled to relief under Rule 118. See Super. Ct. Crim. R. 118. Appellant contends that the trial judge erred in applying the wrong legal standard and in failing to consider the possibility that the assault, if committed, was in self-defense. He also claims that the trial judge abused his discretion in excluding from evidence testimony which would have established his reputation for veracity and for peacefulness. Although there is some merit to one of appellant's evidentiary challenges, we conclude that any error was harmless, and, accordingly, affirm.


In January 1999, appellant was arrested and charged with the robbery of Ismael Diare, a cabdriver who claimed that appellant had punched him in anger after Diare had mistakenly taken a less-than-direct route to appellant's home in Northern Virginia. After a preliminary hearing, the court found no probable cause for the arrest and dismissed the robbery charge. Thereafter, the government charged appellant by information with two misdemeanors, simple assault and taking property without right. The government subsequently entered a nolle prosequi to these charges in March 2001, and appellant filed a motion under Criminal Rule 118 for the sealing of the records relating to his arrest. During the hearing on the motion, Diare claimed that appellant assaulted him, whereas appellant and William Natter, a friend who accompanied him that night, claimed that Diare had, without provocation, turned around and punched appellant after he complained about the circuitous route the cabdriver was taking. In addition to the testimony of the three men involved in the altercation, the trial court heard evidence which tended to support or refute the stories given by the three involved, as well as witnesses called to support appellant's credibility and peaceful character.

The judge ruled that appellant had not shown by clear and convincing evidence that he had not committed a crime:

There is much to be believed and disbelieved on both sides. There really are. But one thing that I'm unable to believe based on listening to the witnesses, and that is I'm unable to accept the notion that there was no physical action taken by Mr. Rose with respect to this incident. I come to that conclusion because, first of all, it's sort of not common sense; but secondly, there's the information that his knuckles were bruised. And finally, I guess just as a matter of credibility, the manner in which it is alleged that Mr. Diare, quote, "set this up" is not believable to me.

Were I to be ruling on this case as a regular criminal case, I don't have any reason to say anything other than that I would say that there is not proof beyond a reasonable doubt. There's no question that I would say that. No question that I would say that. But that's not what I'm asked to rule on.

And do I believe that there was no offense committed by Mr. Rose beyond a reasonable doubt -- not beyond a reasonable doubt -- by a preponderance of the evidence? I mean, I can't say that. I can't say that because I am not convinced of his candor and accuracy of his perception, for that matter, with respect to these events. I do not believe that this record supports a clear and convincing conclusion that he was, without provocation, physically attacked and that that's what happened. I can't conclude that. So I don't. I don't know what happened that night. But I know I cannot reach a conclusion by clear and convincing evidence.

. . . with respect to "clear and convincing" and "preponderance of the evidence," it really doesn't matter which I use, even though the correct standard is clear and convincing, because I would not come to this conclusion by a preponderance of the evidence either. Why? Because I cannot reach the 51 percent. I cannot reach the 51 percent.


A. Rule 118

If a person has been arrested for a criminal offense, but the prosecution is terminated before trial, that person may request to have the arrest records sealed. See Super. Ct. Crim. R. 118 (a); District of Columbia v. Hudson, 404 A.2d 175, 181 (D.C. 1979) (en banc). Such movants are entitled to relief if "the Court finds by clear and convincing evidence that the offense for which the movant was arrested did not occur or that the movant did not commit the offense." Super. Ct. Crim. R. 118 (e). Relief may not be granted, however, if it is shown that the movant committed some criminal act, though not necessarily the one originally charged. See Villavicencio v. United States, 755 A.2d 436, 438 (D.C. 2000) (noting that a person seeking relief under Rule 118 has the burden of showing that "no crime had in fact been committed [by him] at the time of his arrest") (quoting Hudson, 404 A.2d at 179). Although a Rule 118 proceeding considers whether a criminal offense has been committed, because the movant seeks equitable relief, the proceeding is ultimately civil in nature and the protections afforded the accused in a criminal proceeding do not pertain. See Hudson, 404 A.2d at 179 n.6 (holding that "the presumption of innocence in a criminal prosecution has no place in a civil proceeding in which the movant is seeking equitable relief"). The person seeking relief has the ultimate burden of proof to show, by clear and convincing evidence, that he committed no crime. See id. at 179. Clear and convincing evidence is that which should "produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." ...

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