Expungement and Sealing of Federal Drug Records: What Is Possible.

Is it possible to erase federal drug records? What constitutes “expungement” in the federal system? These are common questions that can be difficult to answer because they are both legally complex and rarely lead to successful outcomes. While the answer is almost never a simple “yes,” it is often a “no,” and it is important to understand the distinct legal nuances that underlie these responses.

• Arrests: There is no federal statute that permits adult criminal records to be expunged (i.e., erased). As Congress has not enacted any general federal statute providing for adult criminal records to be expunged, individuals and their families should not assume that arrest records are permanent.
• Convictions: As above, this is the scenario that least often leads to expungement. A conviction for a federal felony offers no general statutory route to expungement, and one that is granted in exceptional cases should not be expected.
• Dismissals under 18 U.S.C. § 3607: Records that end in a dismissal under 18 U.S.C. § 3607 do not count as expunged, and it is important to understand the distinction. These records are not expunged, but they may remain nonpublic, and this means that they are essentially not on the individual’s record. However, they can still be accessed and disclosed in certain circumstances.
• Presidential Pardons: A presidential pardon is not a form of expungement. It is an act of Presidential mercy that has the effect of forgiving the federal offense and removing the penalties associated with it, but it will not erase the record of the conviction. A pardon may result in the restoration of a right (such as the right to vote) lost through a conviction, but this restoration is not the same thing as expungement.

Who qualifies for Section 3607 relief, and what does it actually remove?

Under Section 3607 of 18 U.S.C., federal drug charges are potentially eligible for expungement, and this possibility is a key factor to consider when discussing Section 3607 relief with our federal criminal defense attorneys. When we determine if a federal drug charge is eligible for the protections of Section 3607, we look to see:

1. The Offense Charged

Section 3607 applies to certain offenses under Section 404 of the Controlled Substances Act (CSA). When we examine a federal charge for potential Section 3607 eligibility, one of the first steps we take is to ensure it is the right type of offense to qualify for these protections.

2. Prior Record

Section 3607 also requires that the defendant have no prior federal or state convictions for possession of a controlled substance. Our federal criminal defense attorneys will evaluate your prior records if applicable, and if necessary, work with the court to establish that any prior convictions do not preclude your eligibility for Section 3607 relief.

3. Probation

If a defendant receives probation under Section 3607, then probation must be successfully completed. Once probation is successfully completed, the federal judge who has the authority to dismiss the individual’s record can do so, and in some cases, this can happen prior to the expiration of the probationary period.

After a dismissal under Section 3607, the record remains in the federal system; however, it may be rendered nonpublic, meaning it does not have the same accessibility as other federal criminal records.

4. Age of the Defendant

While most Section 3607 defendants are eligible for dismissal, not expungement, Section 3607(c) requires expungement upon application from a defendant who was under the age of 21 when the alleged offense was committed. When evaluating eligibility for Section 3607(c), we determine the defendant’s age as of the date the offense occurred.

When may a federal court grant equitable expungement despite a conviction?

While federal judges have broad power in many respects, they have limited jurisdiction. In order to exercise any form of authority, federal judges must have either the constitutional or statutory authority to do so. This fundamental principle is a critical aspect of federal criminal law, and it is one of the reasons why many federal cases that would be expungeable in state courts are not expungeable in federal courts.

The Circuit Split

As a result of this jurisdictional limitation, there is a split among the federal appellate courts over the possibility of granting “equitable expungement” under federal law. Some appellate courts have decided that federal district courts lack the inherent power to expunge records when there is no explicit authority to do so. Some have declined to rule on the issue, while others have declined to rule on the issue.

The Tenth Circuit’s View

The Tenth Circuit, which includes Utah, New Mexico, Oklahoma, Colorado, Kansas, and Wyoming, has recognized inherent equitable authority to expunge arrest records in rare or extreme instances. However, this authority is only reserved for “rare and extreme circumstances,” and it has not been granted as frequently as it might be available in some state courts.

The Tenth Circuit’s Balancing Test

In the Tenth Circuit, when a defendant seeks expungement on equitable grounds, the court’s ruling will depend on a balancing test. While acknowledging the government’s interest in record preservation, a court in the Tenth Circuit may order expungement when ““unusually compelling circumstances” are present that warrant granting expungement.” Under this balancing test, the court weighs the defendant’s adverse effects of retaining a record against the government’s interest in maintaining public accessibility.

The Difficulty of Establishing Exceptionality

In general, difficulty obtaining employment due to a conviction is not enough on its own to outweigh the government’s interest in maintaining public accessibility. When pursuing expungement under the Tenth Circuit’s inherent authority, defendants must argue that their circumstances warrant relief above and beyond the standard difficulties associated with a criminal record.

“I am a straight shooter,” Todd Spodek says of his own practice. “I tell clients exactly where their case stands.”

How do federal agencies treat records after state relief or an inaccurate FBI entry?

A federal case has the potential to generate records involving several different agencies. These include the arresting agency, the U.S. Attorney’s Office, the federal court where the case is heard, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the FBI. While some cases involve additional law enforcement agencies, these are the primary ones involved.

The FBI identity-history record is another type of record that can be generated during a federal case. When fingerprints are taken during booking, the individual’s record will be added to the FBI’s identity-history database, and if the record contains errors, this may complicate the defendant’s efforts to expunge or seal any relevant records. Unfortunately, the FBI does not typically follow state court orders to seal or expunge records; if an individual was arrested on a state drug charge, then a state court’s expungement order will not apply to any information that was shared with the FBI.

If your criminal record is inaccurate, however, it may be possible to get a correction based on the FBI’s established criminal justice information correction procedure. These procedures rely on verification from the agency that supplied the inaccurate information. According to the FBI: “If, after reviewing his/her identification record, the subject thereof believes that it is incorrect or incomplete in any respect and wishes changes, corrections or updating of the alleged deficiency, he/she should make application directly to the agency which contributed the questioned information. The subject of a record may also direct his/her challenge as to the accuracy or completeness of any entry on his/her record to the FBI, Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306. The FBI will then forward the challenge to the agency which submitted the data requesting that agency to verify or correct the challenged entry. Upon the receipt of an official communication directly from the agency which contributed the original information, the FBI CJIS Division will make any changes necessary in accordance with the information supplied by that agency.”

Seeking Corrections

Pursuant to 28 C.F.R. section 16.32, individuals can request copies of their identity-history records directly from the FBI. Once an individual has determined how to identify his or her record, then he or she can approach the contributing agency with a request for correction, and, if that request is successful, then a request for correction can be pursued with the FBI as well.

What do pardons, juvenile confidentiality, and immigration law change?

Many individuals think that a presidential pardon constitutes the end of the road for a federal criminal case. A pardon is a significant milestone, and for good reason; however, while a pardon may remove the penalty of criminal record exposure, it does not end that exposure.

1. Pardon Eligibility

Although the process of applying for a pardon has been streamlined, there are still eligibility requirements that must be met before an individual can petition the President for a pardon of his or her federal criminal conviction. Pursuant to 28 C.F.R. § 1.2, an applicant generally must wait at least five years after conviction or release from confinement, whichever is later. After waiting this length of time, an individual may submit a petition for a presidential pardon for federal offenses, including federal drug offenses.

2. Juvenile Records

In addition to the protections of the CSA’s juvenile record expungement provision, federal law has established specific confidentiality protections for juvenile records. Under 18 U.S.C. section 5038: “Throughout and upon the completion of the juvenile delinquency proceeding, the records shall be safeguarded from disclosure to unauthorized persons.” This includes criminal records, and it prohibits the disclosure of these records to any recipients except for:

• Federal prosecutors;
• Probation officers;
• A judge or judicial officer;
• Another criminal justice agency;
• A law enforcement agency; or
• Specifically listed governmental and judicial personnel.

3. Non-Court Matters

For employment, licensure, or other non-court matters, juvenile records remain subject to the confidentiality protections and disclosure exceptions in 18 U.S.C. § 5038. Under 18 U.S.C. section 5038, if a request for access is not within the exceptions above, it must receive a response consistent with “Responses to such inquiries shall not be different from responses made about persons who have never been involved in a delinquency proceeding.”

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.