There is a misconception among the general public and even lawyers that a federal conviction can be easily expunged. It cannot be, and a federal conviction is rarely set aside.
Federal Statutes Allowing Limited Expungement
Indeed, a Michigan Federal Judge was asked to set aside or expunge a federal conviction in the case of United States v. Edwards, No. 77-80818, (E.D. Mich. Sep. 20, 2012). The judge noted that several federal statutes provide for expungement of certain types of records in limited circumstances, such as:
- 18 U.S.C. § 3607(c) – Allowing expungement of possession convictions under the Controlled Substances Act when the offender received probation under § 3607(a) and was under the age of twenty-one at the time of the offense.
- 42 U.S.C. § 14132(d) – Providing for expungement of DNA records from the FBI index when a person’s qualifying conviction is overturned.
Sixth Circuit Cases: Conflicting Opinions on Jurisdiction
United States v. Carey (2010)
Two recently published Sixth Circuit cases, issued by different panels, considered the district court’s jurisdiction to resolve an expungement motion not brought under a federal expungement statute. In United States v. Carey, 602 F.3d 738 (6th Cir. 2010), the court affirmed the denial of a motion to expunge the defendant’s criminal conviction after a guilty plea.
Section II of the opinion, entitled “Jurisdiction,” states in full: “The district court had subject matter jurisdiction under 28 U.S.C. § 1331 because Carey raised constitutional claims in support of his Motion for Expungement. This Court has jurisdiction under 28 U.S.C. § 1291 to review the final decision of the district court on Carey’s motion for expungement.” Id. at 739.
Twice more in the opinion, the court stated that “[a]n order on a motion to expunge a conviction is within the equitable jurisdiction of a federal district court.” Id. at 740–41. Both times, the court cited United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977).
United States v. Lucido (2010)
Approximately three months later, a different panel issued United States v. Lucido, 612 F.3d 871 (6th Cir. 2010). In Lucido, the defendant sought “to expunge all records of [district court] proceedings held by the FBI” following his acquittal on money-laundering charges. Id. at 873.
A divided panel vacated and remanded the district court’s denial of the motion to expunge on the merits, concluding that the court lacked subject-matter jurisdiction to resolve the motion. First, the court found that neither 18 U.S.C. § 3231, the statute providing for original jurisdiction over criminal offenses, nor any other federal statute lent a source of jurisdiction. Id. at 873–74.
The court then addressed whether “ancillary jurisdiction” pursuant to § 3231 existed and, relying on the Supreme Court’s decision in Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375 (1994), held that it did not. Id. at 874–75.
Lucido’s Rejection of Earlier Precedent
The Lucido court rejected Doe as controlling precedent, reasoning that its “one sentence . . . not[ing] (without citation) that ‘[i]t is within the inherent equitable powers of a federal court to order the expungement of a record in an appropriate case’” cannot be reconciled with Kokkonen, which postdates Doe and therefore “overrules” it. Id. at 876.
Lucido also cast aside Carey because “[t]he opinion cited only Doe for [the] proposition” that a district court has equitable jurisdiction to order expungement: Carey contained “no further discussion of the point, let alone a reference to Kokkonen or an analysis of its application to expungement motions”; neither had the Carey parties’ briefs “cited Kokkonen, discussed ancillary jurisdiction or otherwise challenged the court’s power to consider” Carey’s expungement motion. Id.
In the eyes of the Lucido panel, the Carey court’s assertion of jurisdiction with only token discussion did not constitute binding precedent, as “[c]ases implicating issues that ‘merely lurk in the record, neither brought to the attention of the court nor ruled upon,’ do not establish binding precedent on the unexamined point.” Id. (quoting Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006)).
Dissenting Opinion: Rule 206(c) and Jurisdiction
A dissenting panel member expressed disagreement with the holding of Carey but argued that it nonetheless constituted binding precedent under Sixth Circuit Rule 206(c). Id. at 878–79 (Batchelder, C.J., dissenting); see 6th Cir. R. 206(c): “Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of the court.”
The dissent rejected the majority’s characterization of subject-matter jurisdiction as an issue not clearly presented or considered in Carey, observing that federal courts are obligated to consider that issue regardless of whether it is raised. Id. at 878.
The dissent further noted that a Supreme Court proposition relied upon by the majority—“drive-by jurisdictional rulings . . . have no precedential effect,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998), quoted in Lucido, 612 F.3d at 876 (majority opinion)—was not an interpretation of Rule 206(c) and provides no basis for avoiding Carey. Id. at 878–79.
Which Case Controls in the Sixth Circuit?
There is no doubt that Lucido and Carey are likely contradictory. As a general proposition, the court would normally be bound to follow Carey, the earlier decision. See United States v. Tate, 516 F.3d 459, 467 (6th Cir. 2008); Kovacevich v. Kent State Univ., 224 F.3d 806, 821–22 (6th Cir. 2000); see generally McMellon v. United States, 387 F.3d 329, 332–33 (4th Cir. 2004) (en banc).
Here, however, the Sixth Circuit in Lucido already determined that Carey is not controlling precedent on the jurisdictional issue confronted here. Lucido, 612 F.3d at 876. Although the Lucido dissent presents a persuasive argument as to why this decision was contrary to Sixth Circuit law, see id. at 878 (Batchelder, C.J., dissenting), this court is nevertheless bound by the majority’s holding that Carey does not conflict with its ruling.
For this reason, the district court held that it must follow Lucido and deny Defendant’s motion for lack of jurisdiction.
Collateral Consequences of a Federal Conviction
In addition to the fact that a federal conviction, unlike a state conviction, cannot be easily expunged, there are also a number of collateral consequences associated with a federal conviction. Some of the most often cited consequences include:
- The Right to Carry a Firearm
Indeed, a convicted felon in possession of a firearm faces significant penalties, including a possible mandatory minimum 15 years as an armed career offender under the Armed Career Criminal Act of 1984 (ACCA). - The Right to Vote
- The Right to Serve on a Jury
- Restrictions on Occupational Licensing, Education, Housing, Public Benefits, and Property Rights
These are just four examples of collateral consequences. The American Bar Association (ABA) developed the National Inventory of the Collateral Consequences of Conviction, a database containing more than 44,000 separate collateral consequences.
The Importance of Skilled Federal Representation
It is very important to have the right federal attorney—one who is experienced in knowing which offenses are likely to result in various collateral consequences. Given that a federal conviction is unlikely to be expunged and will remain part of someone’s criminal history potentially for life, having an attorney who can negotiate a plea to avoid such consequences may result in not having to live a lifetime dealing with the denial of rights that could have been avoided.
