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V.C.B. v. United States

February 16, 2012


Appeal from the Superior Court of the District of Columbia (DVM-1912-08) (Hon. Erik P. Christian, Trial Judge)

The opinion of the court was delivered by: Schwelb, Senior Judge:

Argued January 5, 2012

Before BLACKBURNE-RIGSBY and OBERLY, Associate Judges, and SCHWELB, Senior Judge.

Opinion for the court by Senior Judge SCHWELB.

Concurring statement by Associate Judge OBERLY at page 17.

V.C.B. appeals from an order of the trial court, entered on December 30, 2009 (Order No. 1) and supplemented on September 28, 2010 (Order No. 2), denying her request, articulated in her "initial" motion and supplemented in her "renewed" motion, that all records of her arrest on August 1, 2008, for attempted cruelty to children and simple assault be sealed pursuant to D.C. Code § 16-802 (2007 Supp.). In Order No. 1, without holding an evidentiary hearing, the trial judge determined that "the record conclusively establishes that defendant has failed to prove, by a preponderance of the evidence, that she did not commit the offense for which she was arrested or that the crime did not occur." In issuing Order No. 1, the judge considered only the allegations in Ms. B.'s initial motion, but he was apparently unaware of, and did not decide the claims in, her renewed motion. In Order No. 2, the judge directed that the renewed motion be certified to this court as a supplemental record, but he stated that the renewed motion had not been "considered by this [c]court."

On appeal, adhering to the claim of actual innocence on which her motion to seal was based, Ms. B. contends that she is entitled as a matter of law to an order sealing her arrest records, and she requests that this court so direct without further contested proceedings in the trial court. In the alternative, Ms. B. asks that we remand the case to the trial court with directions to decide the motion on the basis of the entire record, including her renewed motion and certain exculpatory materials submitted therewith. The government agrees that Ms. B. is entitled to a remand, but urges the court to deny Ms. B.'s request for an order directing that the records be sealed.

We conclude that the trial judge erred by not considering, on their merits, the materials submitted by Ms. B. in conjunction with her renewed motion. We agree with the government, however, that the trial court is the appropriate forum for determination of the relevant facts. Accordingly, we reverse the order appealed from, and we remand the case to the trial court for the entry of appropriate findings of fact and conclusions of law based on consideration of the entire record.

Because the judge did not consider, and was apparently unaware of, Ms. B.'s renewed motion, which was filed on September 9, 2009,*fn2 or the exculpatory materials submitted with that motion, the opportunity for relief to which Ms. B. may well prove to be entitled has been unacceptably delayed. Accordingly, the proceedings on remand shall be conducted and concluded as promptly as possible.


This case has an unusual and somewhat confusing procedural history, which is marked by substantial and unexplained delays. On August 2, 2008, following Ms. B.'s arrest on the previous day, the United States filed a criminal information charging her with one count each of second-degree attempted cruelty to children and simple assault. The alleged victim of these offenses was Ms. B.'s thirteen-year-old brother, B.S.; Ms. B. was the guardian of B.S. and of his half-brother, J.H., who was a witness to the incident in question. The substance of the government's case against Ms. B. was that she allegedly "choked" B.S. because he tried to chew gum when she had forbidden him to do so.

Shortly after Ms. B.'s arrest, the District of Columbia instituted child neglect proceedings against her, and B.S. and J.H., as well as Ms. B.'s two young biological children, were removed from her home. On November 25, 2008, an evidentiary hearing was held in the child neglect case before a magistrate judge of the Superior Court. Ms. B.'s counsel in the criminal case, Stephen H. Cooper, Esquire of the Public Defender Service (PDS), attended the child neglect hearing, and he heard the testimony of B.S. and J.H. According to Mr. Cooper, both boys testified that Ms. B. did not choke B.S. On December 1, 2008, six days after the hearing in the neglect proceedings, Mr. Cooper filed a motion in the criminal case requesting permission to order a transcript of the neglect hearing. The trial judge, however, has apparently never ruled on that motion, and the transcript is not a part of the record on appeal.

On December 9, 2008, the scheduled trial date of the criminal case, the government entered a nolle prosequi dismissing both charges against Ms. B. Ms. B. claims, and the government has not denied, that its decision to dismiss the criminal case was made after the prosecutor interviewed B.S. and J.H. and determined that they would adhere to testimony they gave at the neglect hearing, which is said to have contradicted the charge that Ms. B. choked B.S.

On February 24, 2009, Ms. B. filed her initial motion to seal all records relating to her arrest. In her motion, signed by Mr. Cooper, Ms. B. alleged in pertinent part:

If this Court finds by clear and convincing evidence*fn3 that "the offense for which the movant was arrested did not occur or that the movant did not commit the offense," this Court should seal the movant, Ms. ...

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