Sealing a Federal Adult Criminal Record

Federal judges have the inherent power to seal any record, but they rarely use it.

By , Attorney

Unlike most of the states, the federal system does not have a comprehensive set of statutes that allow expungement for arrest and conviction records for various offenses. The federal expungement statute covers only possession of small amounts of certain controlled substances. (18 U.S.C §3607.) In addition, DNA analysis can be expunged when a servicemember's conviction is overturned (see below). (10 U.S.C. § 1565(e).) However, several federal appellate courts have held that federal judges have the inherent power, aside from any statutory authority, to expunge arrest and even conviction records.

If you were convicted of possession of certain illegal drugs, see Dismissing (or "Sealing") a Federal Record for Drug Possession, for more information.

If you have a federal juvenile record for drug possession, see Sealing a Federal Juvenile Drug Possession Record.

Can You Ask a Court to Expunge Your Record?

The answer depends on where your conviction occurred. Here's how it works: The country is divided geographically into thirteen federal "circuits," each comprised of federal trial courts, called district courts, and appellate courts that hear appeals from the trial courts. (For example, the Second Circuit is made up of federal district courts in Connecticut, New York, and Vermont; the Second Circuit Court of Appeals hears appeals from those trial courts.) Appellate decisions bind the federal trial courts within the circuit. Courts of Appeals can disagree with one another on the same point of law, and until the Supreme Court weighs-in on the matter, the law can be different from circuit to circuit.

Several circuits have ruled that a federal judge's inherent power to "make things right" allows them to consider expunging arrest and even conviction records; other circuits have held the opposite. So, depending on where you were convicted—in which circuit—you may have a chance of convincing a federal district court judge to expunge an arrest or even a conviction record. If your circuit does not think that federal judges have the power to order expungement, the court won't even hear the merits of your case. Unfortunately, in 2015 the U.S. Supreme Court declined to take a case on the subject, which means that the patch-work state of the law remains in effect. (Mann v. U.S., No. 15-245.)

Convincing a Federal Judge to Seal Your Record

Even in federal circuits that recognize a judge's ability to expunge arrest or conviction record, judges do so very, very rarely. For a record to be expunged, a judge must find that it's in "the interests of justice" to do so. One court has noted that expunging a record should be reserved for "exceptional circumstances," as when mass arrests made it impossible to determine whether the police followed the law; when arrests were made in order to harass civil rights workers; when the police misused police records; or when an arrest was proper at the time but based on a law that was later declared unconstitutional. (U.S. v. Schnitzer, 567 F.2d 536 (1977).)

In short, the bar is very high. You'll need to convince the judge that expungement is necessary to preserve your basic legal rights. Expungement may be justified when:

  • the arrest records do not serve to protect society
  • the records will not aid future criminal investigations
  • future misuse of the records is likely, or
  • extreme police misconduct has been demonstrated.

The Process for Expunging a Record

Unfortunately, there are no hard and fast rules as to when and how to go about asking for an expungement order. The place to start would be in the district court where the conviction was entered. You could file an application (there's no form) in the clerk's office, or simply write a letter to the judge. You will need all your powers of persuasion to convince a judge that a true miscarriage of justice will occur if you are forced to acknowledge your record to employers, landlords, and others.

DNA Records

The Department of Defense collects DNA samples from members of the armed forces who have been convicted of specified offenses (including offenses within the Code of Military Justice that provide for a sentence of more than one year). The DNA is analyzed and indexed. When a conviction that caused the collection and analysis has been overturned, however, the Secretary of Defense must expunge the record from the index. (10 U.S.C.A. §1565(e).)

Getting Legal Help

If you think you might qualify for expungement of your federal arrest or conviction record, you will need the help of an experienced criminal defense attorney who regularly practices in the court in which you were convicted. It may be difficult to determine whether the federal court will even hear your request; and even if it will, you will need a thorough and persuasive presentation of your case.

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