What is Required for Expungement in Federal Court?

Expungement in state court is a rather routine, almost administrative procedure that regularly takes place every day in every criminal court.  It is inexpensive and easy.

The same cannot be said for expungement in federal court, as exemplified by the following summary of United States v. Salvatore Giacamo Groppo, a recent U.S. Court of Appeals for the Ninth Circuit. 

In June 2013, Mr. Groppo and eighteen other codefendants were indicted for their involvement in Macho Sports International Corporation, which operated websites “offering, conducting and facilitating unlawful computer and telephone service-based sports gambling withing the United States while being headquartered in Peru.  Mr. Groppo was charged with operating an illegal gambling business in violation of 18 U.S.C. § 1955.

In March 2014, Mr. Groppo pleaded guilty to a two-count Superseding Information charging him for twice aiding and abetting violations of 18 U.S.C. § 1084, which governs the unlawful transmission of wiring information.  Mr. Groppo was also directed to forfeit $377, representing a small share of the millions in assets forfeited by all defendants in the case.  

On March 28, 2014, the U.S. district court accepted his guilty plea and placed him on five years’ probation with an obligation to perform 200 hours of community service, payment of a $3,000 fine and payment of a $100 special assessment.  

Three years into Groppo’s probation, the Government and Groppo jointly moved for early termination of probation, which the court granted.

In the years that followed, “Groppo has continued to be a hard-working, dedicated family man” and faced several consequences from his conviction in 2014.  He attempted to open his own business, but at least one law firm declined to accept him as a client due to litigation records and news reports.  He also complained of diminished employment prospects and issues with opening and maintaining bank accounts.

Mr. Groppo also claimed that the Internal Revenue Service (IRS) also assessed a potential tax liability of over $100,000 in excise and penalties on his bookmaking activity in Macho Sports, in reliance on the federal criminal proceedings.  Mr. Groppo’s IRS attorney recommended that he just settle the debt for $40,000, which would force Mr. Groppo to use his daughter’s college fund to pay the IRS.

In August 2022, Mr. Groppo then filed a motion in federal court to expunge his felony conviction, arguing that the federal court’s ancillary jurisdiction gave it power to expunge his conviction.  He further argued that “the existence of his felony conviction continues to punish him beyond what the parties or the court intended.”  

The district court judge assigned to the motion denied it, concluding that it lacked ancillary jurisdiction to grant Mr. Groppo relief.  It reasoned that “expungement of a conviction is available only if the conviction itself was unlawful or otherwise invalid” and that the “IRS’s imposition of an excise tax does not provided grounds for relief as ‘government misconduct’” that would warrant expungement.

Mr. Groppo then appealed this ruling to the Ninth Circuit in Pasadena, which affirmed the district court.  The Ninth Circuit began its opinion by clarifying that in federal court, expungement “asks that the court destroy or seal records of the fact of the defendant’s conviction.” United States v. Crowell (9th Cir. 2004) 374 F.3d 790, 792.  “[E]xpungement, without more, ‘does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.” Id. (quoting Dickerson v. New Banner Inst., Inc. (1983) 460 U.S. 103, 115. 

A federal court’s power to expunge is sourced in one of two authorities: statute or the court’s inherent authority. Id.  Mr. Groppo appeared to argue that the was no statute on point (indeed, Congress has not expressly established a general power to expunge records), so inherent authority applied under ancillary jurisdiction arising out of 18 U.S.C. § 3231. United States v. Sumner (9th Cir., 2000) 226 F.3d 1005, 1014. 

The court then explained that ancillary jurisdiction refers to federal subject matter jurisdiction “over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Kokkonen v. Guardian Life Ins. Co of Am. (1994) 511 U.S. 375, at 378.  Such jurisdiction is asserted for two separate purposes: “(1)) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.”  Id., at 379-380.  

This can include expunging the record of an unlawful arrest or conviction, or correcting a clerical error.  Sumner, supra, at 1014.  Here, Mr. Groppo alleges neither an unlawful arrest nor conviction, or a clerical error.  Therefore, ancillary jurisdiction does not apply and the ruling denying his expungement motion was affirmed.