the district court denied mr gers ask as motion to expunge solely on the grounds that he failed to establish an unlawful arrest or other government misconduct that was there for two reasons first the showing of government misconduct not a necessary precondition for expungement at the district court assumes it's simply one relevant factor and a balancing test the court failed to perform second mr church aska did allege that his arrest was unlawful but the judge never gave him an opportunity to prove it that is rather than hold an evidentiary hearing as it was required to do the district court simply relied on the fact that mr chertoff is motion to suppress was never decided not because the government dismissed the case rather than defense counsel or what i have a question in regards to the evidence rehearing that in your representation of your client did you check to see who besides himself was alive such as what officers who were involved who could have been produced at a hearing this is some seventeen eighteen years later my question is what good is an evidentiary hearing going to be if the only person left around to testify maybe was your client but did you even bother to every case there needs to be an evidentiary hearing and in history courts have considerable discretion i can't i i would be hard pressed to get into that situation micromanaging how it would handle such a thing unless there's authority that sa we have to do that so my question for a long statement but my question really is when of propre remedy the one that really calls for a balancing in any further proceedings that were dictated by that balance i think i completely agree with your honor i think an evidentiary hearing would only be necessary if in fact the government was to wish to dispute any of the allegations and at this point we just don't know if the government wasn't given an opportunity to respond blows my understanding or at least the district court maybe order without the government ever responding and then the government hasn't just been to the allegations in response either mr was asked as a pro se openin brief or in our supplemental brief so i think at this point appropriate remedy would be it re man for determination under the correct standard and if the government knew the allegations investors on to that is there's a narrow band of discretion this record has in determining whether to grant expungement right that is true ok well following up on that do you have any binding precedent that requires  that some sort of government conduct or or unconstitutional action or an unlawful arrest is not necessary in freezing this court recognized that the defendant had simply he was suffering from a social stigma associated with controlled substances and the district court just assumed without holding a hearing without him making any kind of concrete factual allegations that the bat was sufficient for expungement this court didn't your clients harmed was more than just the garden variety harm that everybody that gets arrested goes through yes i think that's fair to say that he had to show that it was an unusual case i don't do you feel like in any any bleeding below that that showing was made and i mean did he even allege arms that would be sufficient for you to prevail yes your honor he did and i think it's also important to reiterate that this was a pro pleading and we do literally construe put pro se pleadings and he did allege that that as a result of the arrest records still being on the books that he had lost jobs that he was ineligible for programming while incarcerated that his prison that it destroyed his marriage so i think that you know if given the opportunity to i think these allegations on their face that on top of the fact that his arrest or at least the allegation that his arrest was unlawful is certainly enough for district court did not engage in any sort of balancing one thing that occurs to me and i'll ask the question is it would there be a situation in which the district or just on the face of the pleadings to the point  in that situation would a balancing even need to take place to continue did would it and i'm not saying that this case from staying theoretically would seem to me you could strike it just on that basis right theoretically a district court certainly could look at the factual allegations in a motion for expungement and say assuming all the factual allegations are true and you know assuming that the government has an interest in maintaining an arrest record just in the abstract you know i find as a matter of but but but but you know on that point what do you do with the fact that this is seventeen years in the seventeen years after the fact i mean you can't that this record consider that in determining whether this is i mean if there was this urgency if there was this harm that he references would you think that he would have known about that harm before seventeen years i think that  harms aggregated over those years well they did but i mean at certain point you're going to know that your conviction is impairing your life right sure and i mean and under the notion of to getting back to you have all this point if there were going to be an evidentiary hearing we don't even know that somebody would be available to testify so you know the laws to respect some level limitations and so when the first hurt comes you know he's sitting in his house saying oh well i'm away for five more and then i'm going to seek relief well you know the law doesn't necessarily recognize that kind of thing and so i'm not saying it's not them out but my point is it seems to me that theoretically it could cut against the face of a litany of what he's got here even irrespective of what the  i think a lot to ask of a pro se defendant who has a you know not necessarily lot of education has always had you know been found indigent and had been represented by public defenders throughout at the time he filed a motion to suppress which said that the that the officers had had picked the lock of his house they did not have a warrant to search is apartment that they picked the lock to get in and they did so solely on the basis of the justify the search the government simply dismissed the case two days before the hearing the government it or the court just dismissed the government voluntarily was best let me ask you this is the remaining that you're seeking is it an equitable relief or is it a legal equitable or legal either way time plays to me a very important position and the relief that you're asking for on the basis of what you're asking for and eighteen years later down the line this seems a long time to wait to me yeah i mean i understand it's been a long time but but is it equitable or is it illegal really your honor i'm not i'm not sure i'm prepared to answer your question i don't fully appreciate the physics engine between the two pornography arrest the result of this case is dictated by the standard of review and based on the information that was presented to the district court the decision to design a petition was not arbitrary or caprici court had operated under the view that the only relevant thing was the propriety of this of the of the legal action was taken against him at the time the prosecution and the prosecution of him at the time and did not consider other factors the argument that being made is that's legal error and if that's legal error then that's an abuse of discretion right that's correct ok and why in light of our cases like i think it's bromley in these other cases which talk about balancing why and the he didn't hear from the government so we don't know what whether the government could have come in and said i have no interest at all in these records and no interest in preserving them it's been seventeen years why would it not be or for the court spends some time talking about the importance of the court response and its order that it did not consider the motion to suppress and i think the reason the district court mentioned that in its order is because the first ground in  petition was that the district court had granted his motion to suppress and he said it was based on the arresting officers lack of probable cause and that was simply untrue that just a court had not considered a motion to suppress the motion to able to participate in some programs in prison taking all of that is true that does not present an unusual or extreme circumstance which is a second thing that a court should consider when it's considered a position to explain well why is that so in friesan they talk about a program and these other factors and alluded to the fact that if there had been a sufficient showing made on that regard then he might have had a basis for relief and i can't think of anything the more appropriate tha factors that are play here that were not balanced against a government interest that was never given an opportunity to be hurt so i mean a this is not like i think it was lynn in which which the court that  all you're saying is you hadn't of wrath and you know everybody get you know have been reds had some stigma tough full stop that's all you're alleging is being the harm was in this case more akin to freeze and where he said no it's not just the arrest look at my circumstances my life and the charge that was against me in the impact that that on my life and therefore consider that court why isn't that the case in other words it's not the same to run a mill thing as you have and when i meet post  that if it's not a saline valid the court had an obligation to do more than it did well to be fair to the district court mr teachers asked i did not ask for an evidentiary hearing and he did provide documents to the court needed to consider that it didn't consider now how it does that you know district courts are much more equipped to deal with that than we are i think would be another question but the point is should there have been something else looked at in making the determination one thing and one thing all the problem with tell me what other factors are evident in that sentence if it refers to lynn we know that all that was in place when was the court say what the defendant saying you can get you arrested me and i and i'm a lawyer and that hurts me full stop period now in the court here refers only to land and then ensues when his claims will even so it seems to be a natural inference from that at least one natural inference and you can tell me it was one that is more no no it doesn't no no it doesn't specifically this is a factual statement is basically a recitation from this or just ask this petition not entirely from his petition because at the end of this petition he goes and a lot of the harms that are now are silent in the district correct it's not a complete recitation what he said it just says what the background of the cases that's right that's right and so therefore but the point is whether the court should have considered certain factors that were present present in his order as a matter of law before denying the  i mean i take it that's at least the thrust of the argument that mr fitz asked is making got that right but i and so that's the point i mean the point is not whether he wins the point is not whether you get an evidentiary hearing at the council the day the point is whether the appropriate universe of information was considered in making that determination by the citation filin at least one inference and again i'm looking for something else but at least one inference is the court was with matching him up to lin and saying all this guy's claiming is that you know the government was getting regular conduct in searching him its place and all that and that's not enough period full stop would you accept  me about reason and why this case isn't like freeze and when you're talking about a it could a charge that as i said you'd be hard pressed to come up one that would cause more program than that and in freedom that's say that's a factor for a court to consider and perhaps that was the reason behind this court's request for additional briefing from mr triggs asked on whether the nature of the charge itself was an extraordinary circumstance  let's let's assume that the way the court did it in freezing is the right way and that the district judge here should have or could have followed that same same path in analyzing this case as as outlined and reasoned could that this court end up with a different result then the court and reason based on you can though there may be similar facts the petition and it would not have been an abuse of discretion either way right and then that's what i that's what i'm getting at and i also look at this or tell me what you think about this and it sort of seems to me that the district court  you it's fairly inferred from this order that the district court did consider a lot of these things and maybe it didn't expressively state how it balanced them but but it can be