DOJ argues federal court has no power to expunge

What relief is available for people with a federal conviction who cannot find or keep a job? Part of the answer may soon be found in two cases from Brooklyn that raise the question whether a federal judge has the power to expunge a conviction whose validity is conceded. In the first case, U.S. v. Jane Doe (Jane Doe I), the Justice Department has appealed Judge John Gleeson’s May 21 expungement order to the Second Circuit Court of Appeals. In the second case, also styled U.S. v. Jane Doe (Jane Doe II), Judge Gleeson asked the Department to brief the issue of his authority to expunge.  He also asked the government to advise whether he has authority to “enter a certificate of rehabilitation in lieu of expungement.”  The government has now delivered its answer, and it is “No” to both questions.

The government’s brief is fairly predictable.  On the expungement issue, it argues that federal courts have no “ancillary jurisdiction” to expunge the record of a lawful conviction, relying on the Supreme Court decision in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).  As to the court’s authority to issue a certificate of rehabilitation, the government appears to assume that Judge Gleeson was referring to one of the certificates provided for under New York law, and relies on cases holding that a federal court cannot grant relief under a state law.  One clue that this was not what Judge Gleeson had in mind might have been that neither of the New York certificates is called that (though they are considered evidence of rehabilitation), and that the only mention of a certificate of rehabilitation in federal law (Rule of Evidence 609(e)) is generic. Another clue is that no federal court that we know of has ever attempted to grant state relief to a federal offender (with the exception of a few assimilative crimes cases), indicating that the law on this issue is too clear to tempt even even the most creative jurist.

The petitioner’s brief is now due on October 5.  The expert’s brief is likely to be due a day or two afterwards. No date has yet been set for oral argument.

 

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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