Expungement of a Conviction in Federal Court?

Federal courts, unlike California courts through Penal Code § 1203.4, et. seq., do not provide for expungement of a conviction suffered in federal court, except in two rather specific, narrow exceptions, as well as in a third, less clear way.

The first context concerns a drug offender who committed a federal drug offense while under age 21 and was then convicted in federal court. If the person then successfully completed probation, he or she can submit form A0 246A to seek a signed order from the judge that even uses the term “expungement” in ordering the Department of Justice to expunge all records concerning the offense under 18 U.S.C. § 3607(a).

The second context, contemplated in form A0 249, concerns reinstatement of a drug offender’s federal benefits under 21 U.S.C. § 862(c). This form is limited to those convicted of possession of a controlled substance ((21 U.S.C. § 844) or distribution of a controlled substance (21 U.S.C. § 841(a)(1)) and includes a finding by the judge that the person is rehabilitated.

The third, less clear way, is a petition for expungement in federal court, requesting that the judge apply his or her inherent equitable jurisdiction (U.S. v. Doe (6th Cir., 1977) 556 F. 2d 391, 393) to expunge the record under extraordinary circumstances (i.e., loss of a specific job opportunity or other material harm). For example, in Barnett v. District of Columbia Department of Employment Services (D.C.App.1985) 491 A.2d 1156, 1157-58, the court stated that expungement was proper when defendant’s application for employment as a correctional officer was denied due to a federal conviction.

We would think that if the conviction were used as a basis to deny a person the right to vote or serve on a jury, that may be sufficient grounds for expungement.

Other grounds that we would expect to establish extraordinary circumstances would be a conviction that was reached under an unconstitutional statute or statutes, extreme police misconduct, or convictions resulting from prosecutorial misconduct. United States v. Talita Robinson (E.D.N.Y. 2007) CR-04-0580.

However, in U.S. v. Stromick (D. Md. 1989) 710 F. Supp. 613, 614, a federal court held that expungement was improper for defendant’s youthful conviction from 1973, which was previously set aside under 18 U.S.C. § 5021(b) (repealed 1984), but the conviction remained on defendant’s record and generally still affected him sixteen years later. Likewise, in U.S. v. Sumner (9th Cir. 2000) 226 F. 3d 1005, the Ninth Circuit denied a petition expungement because defendant had not established that there was a “miscarriage of justice.” Similarly, in U.S. v. Wiley (S.D. Ohio 1999) 89 F. Supp. 2d 909, a petition for expungement of arrest and court records relating to defendant’s conviction was denied despite specific evidence of two job opportunities being denied to defendant.

Besides establishing “extraordinary circumstances” such as a miscarriage of justice, one would be prudent in petitioning for expungement to address the government’s interest in maintaining records that aid law enforcement. U.S. v. Robinson (6th Cir. 1996) 79 F. 3d 1149. In doing so, one may want to argue that the records of defendant’s arrest do not serve the purpose of protecting society and will not aid future criminal investigations, or that misuse of the records is likely. Id.

We would also suggest a discussion of other federal statutes that allow destruction of records from a criminal defendant to analogize the defendant’s interest in expungement to the other federal rights of destruction. For example, 10 U.S.C. § 1565 requires the Secretary of Defense to “promptly expunge” an individual’s DNA records from the FBI DNA index when a court overturns a military conviction. A different federal statute requires the FBI Director to expunge DNA Congressional Research Service 3 records from the FBI DNA index when a court overturns convictions for qualifying offenses, including felonies and certain violent crimes.

Lastly, it merits mention that a Presidential pardon is an alternative to a petition for expungement, however, unlikely such a pardon may be granted. One should understand, however, that if one is fortunate enough to be granted a presidential pardon, which relieves one from all penalties associated with the conviction, the conviction will still appear on one’s background report and one will still have to answer yes if asked by an employer or governmental agency whether that person has even been convicted of a crime.