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Colorado Federal Criminal Law – Can I Seal My Colorado Federal Criminal Conviction?

By H. Michael Steinberg Colorado Federal Criminal Defense Lawyer – Attorney

Colorado Federal Criminal Law - Can I Seal My Colorado Federal Criminal Conviction?Colorado Federal Criminal Law – Can I Seal My Colorado Federal Criminal Conviction?– The sad truth is this – it is nearly impossible to seal a Federal Criminal Case. With only one significant exception – very minor Federal drug possession cases (see below – 18 U.S.C §3607). – there is no Federal expungement statute that creates a statutory right to seek the expungement of Fedeeral criminal records.

The Society for Human Resource Management has found that today over 80% of American employers conduct criminal background checks on prospective employees. The internet has made the proliferation of public records such as arrest and conviction information so readily available – notwithstanding the kind of crime of the age of the conviction – that it stops in their tracks anyone trying to climb out of their past and prove they are rehabilitated and are deserving of reentry of into society.



Understanding Federal Law – Attempting To Seal a Federal Adult Criminal Record

It is painfully clear to many individuals targeted by the Federal Criminal Judicial System – that criminal records of ANY kind create an inescapable lifelong sentence. But here is the bottom line – unlike the State of Colorado and most other States – there are no specific laws that permit the sealing – expungement of Federal Criminal Cases.

Put differently – there exists no statute creating a federal expungement remedy. While the Federal Tenth Circuit (which includes Colorado) theoretically permits Federal Judges to grant an expungement – it is nearly impossible to obtain. There is no judicial authority to expunge federal criminal records and the way the Federal system works – without specific legislation authorizing expungement – it only occurs under extremely rare and extraordinary circumstances.

Why is that?

The answer will not satisfy you. Federal courts are courts of limited jurisdiction. They have only the powers grant to them by the Constitution and statute.

“The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.”

But – and here is the exception to the rule, Federal courts can expand their jurisdictional “reach” because of certain “inherent powers” that accompany their function.

This ancillary jurisdiction is:

(1) derived from Article III and grounded in the separation of powers concept, vesting in courts certain judicial powers “once Congress has created lower federal courts and demarcated their jurisdiction;”

(2) arises from the nature of the Court or necessary for the Courts to exercise other powers, such as the contempt sanction to maintain order while administering justice; and

(3) is “rooted in the notion that a federal court, sitting in equity, possesses all of the common law equity tools of a “Chancery Court” (subject, of course, to congressional limitation) to process litigation to a just and equitable conclusion.”

But the different Federal Circuits interpret these “equitable powers” of the Federal Courts differently. While several of the Federal Circuits (and there are 13 different Federal Circuits) interpret this “inherent equitable power” to include the right to grant an expungement, several don’t. It depends in which jurisdiction the crime occurred.

This “ancillary jurisdiction” allows Federal courts to exercise jurisdiction over certain matters that would otherwise exceed their competence, if those matters are incidental to other matters properly being considered by those courts.

Again – and this is complicated, while there is almost a complete absence of federal legislation expressly authorizing courts to expunge criminal records some Federal Courts, including the Tenth Circuit (which includes Colorado), have held that expungements may be granted pursuant to a court’s inherent powers or subject to the exercise of ancillary jurisdiction.

Colorado, included in the Tenth Circuit (along with Kansas, New Mexico, Oklahoma, Utah, Wyoming) is one of the Circuits that permits, at least theoretically, a Federal Judge’s authority to grant an expungement. The Tenth Circuit has held that:

“[i]t is well settled in this circuit that courts have inherent equitable authority to order the expungement of an arrest record or a conviction in rare or extreme instances.”

While the Tenth Circuit Court of Appeals has, in the past, exercised it’s ancillary jurisdiction to find this authority, it applies “a heightened standard” to any request to expunge convictions of persons “adjudged as guilty in a court of law” as compared to the expungements of arrest records of a “presumably innocent person.” Therefore if expungement is theoretically possible – it seems to be possible only to the innocent person and not the person actually convicted of a federal crime or crimes.

Convincing a Colorado (Tenth Circuit) Federal Judge To Seal Your Record Is Nearly Impossible

For a Colorado Federal criminal record to be expunged, a Federal Judge must find that it’s in “the interests of justice” to do so. This is a finding that occurs only in the most “exceptional” of circumstances. The bar for a Federal grant of an expungement is set impossibly high and the competing policy based interests which one must overcome in Court include arguments that track strong public policy concepts such as:

• arrest and other criminal records serve to protect society.

• arrest and other criminal records must be open for future criminal investigations.

There Are No Forms And No Specific Format For A Procedure To Expunge a Federal Record

A Colorado criminal defense lawyer is forced to start from scratch in filing a Motion To Expunge a federal criminal record. Because there are no statutes creating a right to seek expungement of federal records – there exist no forms available for the lawyer to use, (with the exception for minor possession of drug cases under 18 U.S.C. 3607(c) – only a young person who is guilty of a drug offense under the Controlled Substances Act (21 U.S.C 844) may have their record expunged.- See last section)

Colorado criminal defense lawyers will tell you that the effort to seal – expunge – a Federal criminal case will most likely amount to a costly waste of time… and that the chances of success are practically non-existent. But the decision to try is your decision – and the reasons to try are many – as criminal records impact:

1. Employment

2. Education

3. Housing

4. Loans

5. Licensing

6. Insurance rates

7. Firearm Rights

8. Federal Assistance programs

9. Adoption and

10. Volunteering opportunities

More specifically the collateral consequences from a Federal conviction include – not just the obvious difficulty in securing post-conviction employment – but they also include;

  • hurdles in accessing educational and training services, such as federal student aid ineligibility for certain convictions;
  • a Federal lifetime ban from food stamps and Temporary Assistance to Needy Families, which can thwart an ex-offender’s efforts to receive appropriate addiction treatment;
  • eviction from public housing based on an arrest prior to conviction and permanent ineligibility for public housing based on conviction;
  • ineligibility for Federal and state occupational licenses;
  • and obstacles to a healthy family life, such as a prohibition from foster care and adoption programs. and
  • subjecting non citizen offenders to deportation

Even the innocent defendant who has been found not guilty – or whose case is ultimately dismissed by a Federal Prosecutor faces “assumptions of past dishonesty and future untrustworthiness in the minds of all those aware of that history.”

Where A Colorado Criminal Case Is Filed Is Critically Important To The Right To Seal A Criminal Record

Federal prosecutors have the authority to no file their cases in the federal system deciding instead to refer them to Colorado state authorities. The charges – the crimes committed – often have exact state counterparts with which a Defendant can be charged. By filling a case with state authorities – if that can be negotiated by an experienced Colorado criminal defense lawyer, the Defendant receives the benefit of a potential expungement – called a Petition to Seal under Colorado law.

One clear advantage to a state criminal case filing is this – in the event of an acquittal after a jury or judge trial – Colorado law permits the sealing of the record whereas in the federal system even those Defendants who have been acquitted of all charges are still denied an expungement of the case. Thus even the innocent defendant who is wrongfully accused is plagued for the rest of his life with the “stigma” of having been charged and tried in a criminal court well after they have been exonerated of the crime or crimes.

As of 2016 -The Split In The Federal Circuits – Summarized

The Courts of Appeals in the First, Third, Sixth, Eighth, Ninth Circuits and Eleventh decline to recognize ancillary jurisdiction over expungement motions on equitable grounds.

The Second, Fourth, Fifth, Seventh, Tenth, (includes Colorado) and D.C. Circuits continue to recognize jurisdiction for expungement motions pursuant to the Courts’ inherent powers.

While the second group of circuits leave open the possibility of exercising ancillary jurisdiction to expunge certain records on equitable grounds, the door is practically closed by Court’s that have been asked to expunge Federal criminal records. These Courts have issued opinions with policy statements addressing the reason to deny expungement such as:

[E]xpungement of a criminal record ‘solely on equitable grounds, such as to reward a defendant’s rehabilitation and commendable post conviction conduct’ does not serve the purposes of ancillary jurisdiction……

a district court’s ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error.’

While the door is “open” to theoretical expungement in Colorado, the balancing test applied by the Courts practically forecloses that an expungement will be granted.

The balancing test for expungement applied in these case is:

“if the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate.”

[E]xpungement is, in fact, an extraordinary remedy…”unwarranted adverse consequences” must be uniquely significant in order to outweigh the strong public interest in maintaining accurate and undoctored records.

The reasoning as expanded from the reference above – is as follows:

Records relating to a person’s criminal conduct are vital tools to law enforcement and are…essential to the computation of sentences under the United States Sentencing Guidelines.

The public interest can be seen in the long tradition of open proceedings and public records, which is the essence of a democratic society.

To outweigh that interest, “unwarranted adverse consequences” must truly be extraordinary.

Impeding employment is not enough – “If employment problems resulting from a criminal record were “sufficient to outweigh the government’s interest in maintaining criminal records, expunction would no longer be the narrow, extraordinary exception, but a generally available remedy.”

While it is theoretically possible to request the Federal Court in Colorado to assert the Court’s ancillary jurisdiction to grant an expungement motion on equitable grounds, – overcoming the obstacles described does not afford the Petitioner what seems to be a “fighting chance” to clear their records.

One Exception – Expungement For Young Federal Drug Offenders (Under 21) 18 U.S.C. § 3607

(Link to federal expungment form – FEDERAL DRUG DJ FORM – EXPUNGEMENT PROBATION ORDER UNDER 18 U.S.C. § 3607)

There IS a Federal Statute that provides for expungement – that amounts to the complete removal of a Federal case from a person’s criminal history. If an offender is under 21 years old at the time of a drug possession case that involves a small, “personal use” amount of certain controlled substances in violation of the Controlled Substances Act, and a Defendant is granted pre-judgment probation (that means that the agreement contemplates that the District Court will dismiss the proceedings without entering a judgment of conviction prior to the expiration of a term of probation), they qualify for the expungement of their case.

In such cases the District Court Judge issues an order directing the authorities to expunge from all official records, (except the non-public records referred to in subsection (b) of the law), all references to his arrest for the offense, the institution of criminal proceedings against the offender him, and the results thereof. The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings.

Under this law, if an expungement is granted pursuant to 18 U.S.C. § 3607(c), the Department of Justice does retain a sealed, nonpublic record of the conviction, “solely for the purpose of use by the courts in determining in any subsequent proceeding whether a person qualifies for the disposition” provided in the statute.”

Here is a reprint of the entire law:

18 U.S. Code § 3607 – Special Probation and Expungement Procedures for Drug Possessors

(a) Pre-judgment Probation — If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844)

(1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and

(2) has not previously been the subject of a disposition under this subsection; the court may, with the consent of such person, place him on probation for a term of not more than one year without entering a judgment of conviction. At any time before the expiration of the term of probation, if the person has not violated a condition of his probation, the court may, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. At the expiration of the term of probation, if the person has not violated a condition of his probation, the court shall, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. If the person violates a condition of his probation, the court shall proceed in accordance with the provisions of section 3565.

(b) Record of Disposition

A nonpublic record of a disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall be retained by the Department of Justice solely for the purpose of use by the courts in determining in any subsequent proceeding whether a person qualifies for the disposition provided in subsection (a) or the expungement provided in subsection (c). A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.

(c) Expungement of Record of Disposition

If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) is the subject of a disposition under subsection (a), and the person was less than twenty-one years old at the time of the offense, the court shall enter an expungement order upon the application of such person.

The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof.

The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.

Colorado Federal Criminal Law – Can I Seal My Colorado Federal Criminal Conviction?

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If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.

Colorado Experienced Criminal DefenseABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Federal Criminal Law – Can I Seal My Colorado Federal Criminal Conviction?

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Colorado Federal Criminal Law - Can I Seal My Colorado Federal Criminal Conviction?
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Colorado Federal Criminal Law - Can I Seal My Colorado Federal Criminal Conviction?
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The sad truth is this - it is nearly impossible to seal a Federal Criminal Case. With only one significant exception - very minor Federal drug possession cases (see below - 18 U.S.C §3607). - there is no Federal expungement statute that creates a statutory right to seek the expungement of Fedeeral criminal records.
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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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