U.S. v. Crowell

• Decision Date: 30 June 2004
• Docket Number: No. 03-30041.,03-30041.
• Citation: 374 F.3d 790
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eileen CROWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

374 F.3d 790

UNITED STATES of America, Plaintiff-Appellee, v. Eileen CROWELL, Defendant-Appellant.

No. 03-30041.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2003.

Filed June 30, 2004.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the defendant-appellant.

Michael W. Mosman, United States Attorney, J. Richard Scruggs, Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CR-90-00263-MFM.

Before ALARCÓN, RAWLINSON, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

This case presents the question whether a person convicted of a crime may collaterally attack her conviction by moving to expunge the records of her conviction. We hold that she cannot, and we affirm the judgment of the district court.

FACTS

In 1990, a federal grand jury indicted the defendant, Eileen Crowell, on six counts, based on allegations of conspiracy to manufacture, distribute and possess with intent to distribute live marijuana plants, see 18 U.S.C. § 2; 21 U.S.C. §§ 841, 846, and the filing of false tax returns for 1986, 1987, and 1988, see 26 U.S.C. § 7206. The indictment also charged her husband and a third defendant.

After extensive negotiations, Crowell entered an Alford plea — that is, she pled guilty while maintaining that she was innocent, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) — to the single charge of filing a false tax return for 1986. Crowell appeared for sentencing in district court in 1991. The Government presented the evidence that it believed supported the Defendant's plea on the tax charge. Considering the Government's evidence against her, the district court found that there was an adequate factual basis for Crowell's plea. See id. at 37-38, 91 S.Ct. 160.

The district court carefully questioned Crowell to determine whether she understood the nature of the charges against her. See United States v. Timbana, 222 F.3d 688, 702-03 (9th Cir.2000). Under penalty of perjury, Crowell affirmed that she understood and that her plea was voluntary. The court proffered extra time to Crowell in case she wanted to change her mind late in the pleading stage. After satisfying itself that Crowell was voluntarily pleading guilty, the court entered judgment on Crowell's plea, dismissed the remaining counts against her, and sentenced her to three years probation.

Eleven years later, in 2002, Crowell filed a motion in her original criminal case to expunge her conviction. Crowell advanced three grounds for her motion: first, that there was an inadequate basis for her Alford plea; second, that her attorney had a conflict of interest because he had initially been hired to assist with her husband's defense; and third, that her Alford plea rested on financial records obtained from a search and seizure that was later declared unlawful at her husband's pre-trial hearing.¹ The district court concluded that each of her claims lacked merit and denied her claims. Crowell timely appealed.

We review de novo the district court's jurisdiction to entertain a motion for expungement. United States v. Sumner, 226 F.3d 1005, 1009 (9th Cir.2000). See also United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.2002) (the court reviews de novo a district court's assertion of jurisdiction under the All Writs Act).

DISCUSSION

A defendant who moves to expunge her conviction does not seek to vacate or set aside her conviction. "Expunge" (to erase) and "vacate" (to nullify or to cancel) denote very different actions by the court. When a court vacates a conviction, it sets aside or nullifies the conviction and its attendant legal disabilities; the court does not necessarily attempt to erase the fact of the conviction. See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 114-22, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). In contrast, a defendant who seeks expungement requests "the judicial editing of history." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.1972). Although "expungement" may mean different things in different states, in general when a defendant moves to expunge records, she asks that the court destroy or seal the records of the fact of the defendant's conviction and not the conviction itself. See United States v. Sweeney, 914 F.2d 1260, 1262 (9th Cir.1990) ("an expunction order is similar to an order not to report a conviction"); United States v. Johnson, 941 F.2d 1102, 1111 (10th Cir.1991) ("expunge" refers to the physical destruction of information with respect to criminal records). See also Dickerson, 460 U.S. at 121-22, 103 S.Ct. 986 (noting that the variety of state expungement statutes creates "nothing less than a national patchwork"). Accordingly, expungement, without more, "does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty." Id. at 115, 103 S.Ct. 986.

We have recognized two sources of authority by which courts may expunge records of criminal conviction: statutes and our inherent authority. By statute, Congress has set the conditions by which the courts may expunge records of federal convictions in particular cases. For example, Congress has directed that certain persons who are convicted and sentenced to probation for violating the Controlled Substances Act, 21 U.S.C. § 844, and were less than twenty-one years old at the time of the offense, may seek expungement. 18 U.S.C. § 3607(c). In such cases, Congress has not only specified the conditions for expungement, but defined the act of expungement. See id. § 3607(b) (providing that the Department of Justice may, in any event, retain a nonpublic record of the disposition). Congress has also declared the legal effect of such expungement: "A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose." Id. § 3607(c). See also 21 U.S.C. § 844a(j) (describing similar conditions and restrictions). Similarly, in disciplinary matters involving employees of the Veterans Health Administration, the Secretary of Veterans Affairs may order various remedies to reinstate employees, "including expungement of records relating to the action." 38 U.S.C. § 7462(d)(1). Congress has further directed that DNA analysis be expunged from certain indices when a conviction has been overturned. 10 U.S.C. § 1565(e); 42 U.S.C. § 14132(d). See also 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged).²

Congress has not expressly granted to the federal courts a general power to expunge criminal records. Nevertheless, 8713 we have asserted that federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases. We have held that in criminal proceedings "district courts possess ancillary jurisdiction to expunge criminal records. That jurisdiction flows out of the congressional grant of jurisdiction to hear cases involving offenses against the United States pursuant to 18 U.S.C. § 3231." Sumner, 226 F.3d at 1014. We have also held, however, that district courts do not have the power "to expunge a record of a valid arrest and conviction solely for equitable considerations," because "the expungement of the record of a valid arrest and conviction usurps the powers that the framers of the Constitution allocated to Congress, the Executive, and the states." Id. Accordingly, "a district court's ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error." Id.

Crowell did not seek expungement under any statutory provision or rule. Rather, she filed her motion under the original docket number before the same district court judge who accepted her Alford plea. Aware of the court's holding in Sumner, Crowell acknowledged that she had no basis for seeking equitable relief from the disability of her conviction. Instead, Crowell argued to the district court that she had legal grounds for expungement because her record of conviction was based on "an unlawful arrest or conviction," Sumner, 226 F.3d at 1014, because her Alford plea was not knowing, intelligent, or voluntary; the evidence against her resulted from an illegal search; and she received ineffective assistance of counsel in violation of the Sixth Amendment. Crowell's motion is, nevertheless, unusual. Unlike other motions for expungement we have approved, Crowell has not alleged that a record of her conviction exists in spite of an acquittal or a vacated conviction. See Maurer v. Individually and as Members of L.A. County Sheriff's Dept., 691 F.2d 434 (9th Cir.1982) (affirming the availability of expungement of arrest record following acquittal). Cf. Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir.1999) (affirming expungement of prison discipline records where there was "no evidence" to support the administrative charge). Rather, Crowell has used her motion for expungement as a post-conviction vehicle to challenge collaterally the lawfulness of her conviction. Crowell asks, effectively, that we vacate her conviction in order to expunge her records. This, we conclude, we cannot do.

The Constitution and statutes of the United States authorize various means by which defendants may collaterally attack a conviction. Defendants convicted of federal crimes may seek collateral relief through a presidential pardon. U.S. CONST. art. II, § 2, cl. 1. However, "[o]ne who is pardoned is merely released from the disabilities attendant upon conviction and has his civil rights restored."...