U.S. v. Noonan

• Decision Date: 28 June 1990
• Docket Number: No. 90-3015,90-3015
• Citation: 906 F.2d 952
• Parties: UNITED STATES of America, Appellant, v. Gregory Paul NOONAN, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 952

906 F.2d 952

UNITED STATES of America, Appellant, v. Gregory Paul NOONAN, Appellee.

No. 90-3015.

United States Court of Appeals Third Circuit.

Argued May 24, 1990.

Decided June 28, 1990.

Thomas W. Corbett, Jr., U.S. Atty., Bonnie R. Schlueter (argued), Asst. U.S. Atty., for appellant.

Jon Pushinsky (argued), Pittsburgh, Pa., for appellee.

Before COWEN, NYGAARD and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This case of original impression requires us to consider the effect of a 1977 proclamation by President Jimmy Carter granting a pardon for violations of the Military Selective Service Act between August 4, 1964 and March 28, 1975. Specifically, we are to decide whether one convicted of violating provisions of that Act is entitled to an expunction of all court records relating to his conviction by virtue of receiving the Presidential pardon. The district court granted the motion to expunge. The government has appealed and we reverse.

Jurisdiction was proper in the trial court based on 18 U.S.C. Sec. 3231. Jurisdiction on appeal is proper based on 28 U.S.C. Sec. 1291. The appeal was timely filed under Rule 4(b) F.R.A.P.

I.

Article II, Sec. 2 of the Constitution provides in part: "[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

On January 21, 1977, President Carter issued Proclamation 4483, which states in relevant part:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.

II.

In 1969, Gregory Paul Noonan was convicted and sentenced to three years imprisonment for failure to submit for induction in 1968, a violation of the Military Selective Service Act. Upon appeal, this court affirmed the conviction in a published opinion, United States v. Noonan, 434 F.2d 582 (3d Cir.1970) (Aldisert, J.), cert. denied, 401 U.S. 981, 91 S.Ct. 1190, 28 L.Ed.2d 333 (1971).

On January 21, 1977, President Jimmy Carter issued Proclamation 4483, pardoning Noonan's 1968 Selective Service Act violation. Eleven years later, on December 22, 1988, Noonan moved to expunge records of his Selective Service Act conviction. In his motion, Noonan stated that he is currently employed as a parts manager for a car dealership, but that his "arrest and conviction has arisen under circumstances which could be detrimental to Mr. Noonan's pursuit of employment or other goals beneficial to his family." App. at 6. He further averred that he has never been the subject of criminal proceedings other than the Selective Service Act case. Id.

Noonan sought two forms of relief. In the motion itself, Noonan expressed the belief that expunction of his record "would enable him to answer in the negative any questions relating to whether or not he has ever been arrested and/or convicted." App. at 6. In his prayer for relief, he requested that the district court order that he "may, as all others must, consider the criminal indictment expunged as if it had never occurred." Id. at 7. Noonan also requested that all records relating to his arrest and conviction be delivered to the Clerk of the United States District Court for the Western District of Pennsylvania and that the Clerk be directed to impound and seal the records. Id.

On March 8, 1989, the district court entered an order granting Noonan's motion. On March 16, 1989, the government moved for reconsideration. The district court then scheduled a hearing for May 25, 1989, to develop a factual record. At the hearing, Noonan described his need for expunction of his criminal record.

Although employed in the automotive parts business for thirteen years, he also said that "it's a business where there's an awful lot of turnover, and more than likely in the next several years I will probably be looking again." Id. at 93. Noonan stated that, in the past, when he had been required to disclose his conviction record on an application form, he had been abruptly rejected for the position.

Noonan also testified that he suffered emotional problems as a result of his imprisonment for the conviction. He has been treated for depression by psychiatrist Oscar Urrea and he has been counseled by psychologist Jim Burns. According to Noonan, both recommended that he seek expunction of his conviction as a means of "burying the past and sort of relieving the pressure." Id. at 97.

The government presented no evidence at the hearing. Defense counsel sought and obtained court permission to submit a deposition of Dr. Urrea following the hearing.

Dr. Urrea testified that he began treating Noonan on April 15, 1988. He at first diagnosed Noonan as suffering "in the foreground from a generalized anxiety disorder, and ... in the background ... from a personality disorder." Id. at 40. Later, Dr. Urrea "decided that he's not just a compulsive personality disorder but a group of personality disorders in one." Id.

According to Dr. Urrea, there are two circumstances which have aggravated Noonan's conditions: his family history and "the issue with the military." Id. at 43. With respect to the family history, Dr. Urrea pointed out that Noonan's father also suffers from depression, an anxiety disorder and obsessional traits and noted that Noonan's grandmother committed suicide.

With respect to the "issue with the military," Dr. Urrea testified:

Mr. Noonan has been a social outcast ever since he refused to be inducted into the army, into the service, and that has created a significant negative image on him.

His self-esteem is very poor. He's not able to--he has not been able to consistently hold onto a job. He has medical problems. He drinks a lot. He has had intermittent thoughts of suicide. He's just a very unhappy man, and the very first thing that he worries about when he's going to look for a job, when he's going to undertake something, is the fact that he will have to disclose his criminal record.

Id. at 43-44.

Dr. Urrea advised him to confer with a lawyer about the possibility of clearing his record. On cross-examination, Dr. Urrea described Noonan's family history as the "biological background" of his problems, and the "problem with the U.S. Government [as] the trigger factor." Id. at 57.

Although the government presented no evidence, it objected to the testimony of Noonan and Dr. Urrea as irrelevant. The government relied upon its legal argument that the district court's inherent power to expunge a criminal record cannot be exercised under the circumstances presented by Noonan.

The district court issued its opinion denying the government's motion for reconsideration on December 5, 1989. Relying upon Ex Parte Garland, 71 U.S. (4 Wall.) 333, 374, 18 L.Ed. 366 (1866), it held that the Presidential pardon entitled Noonan to expunction of his criminal record because the pardon " 'blots out of existence the guilt' of Gregory Paul Noonan." App. at 27.

III.

The government argues that the district court lacked the power to expunge the criminal record on the basis of the pardon. Alternatively, the government argues that this particular case is not one warranting expunction. Subsumed in its contention is the notion that the President has the power, as head of the executive branch, to order, explicitly or implicitly, expunction of a criminal record.

The centerpiece of Noonan's argument is that a pardon "blots out of existence the guilt." Ex Parte Garland, supra, 71 U.S. at 380, and that the terms of the Carter Presidential pardon, restoring to Noonan full "other rights" as well as "full political [and] civil ... rights" constitutes the legal authority for expunging his criminal conviction record.

IV.

To reach Noonan's argument we must first surmount a very difficult hurdle of whether the executive branch of government has the power, directly or indirectly, to expunge a judicial branch record. This, too, is a question of first impression in the United States. English courts have met the issue head-on and resolved it in the negative. In R. v. Foster, [1985] 1 QB 115, [1984] 2 All ER 679, [1984] 3 WLR 401, 79 Cr.App.Rep. 61, the Court of Appeal, Criminal Division explained:

[Counsel for the Crown] reminded us that constitutionally the Crown no longer has a prerogative of justice, but only a prerogative of mercy. It cannot, therefore, he submits, remove a conviction but only pardon its effects. The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction. With that we entirely agree.

R. v. Foster, supra, at 130. Likewise, in the context of our tradition, our law, and our constitutional doctrine--be it state or federal--the executive branch has never possessed "a prerogative of justice." That has always been the exclusive province of the Third Branch of government, the judiciary.

It is well established under our tripartite constitutional system of government that the President stands under the law. The President's power, if any, to issue an order of expunction of a criminal record must stem either from an act of Congress or from the Constitution itself. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 865-66, 96 L.Ed. 1153 (1952). There is no statute that expressly authorizes the President to tamper with judicial records or to create any fiction through the pardon power vested...