United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. Davis United States District Judge.
matter is before the Court on a Motion for Expungement filed
by Laryssa Laurette Colon ("Colon") for her 1991
felony convictions of 21 U.S.C. § 843(b) and 18 U.S.C.
§2. For the following reasons, the Court concludes that
there is no jurisdiction on equitable grounds and therefore
DENIES the Motion for Expungement.
April 10, 1991, Colon pled guilty to one count of Unlawful
Use of a Communication Facility, in violation of 21 U.S.C.
§ 843 (b), and one count of Possession with Intent to
Distribute Cocaine, in violation of 18 U.S.C. § 2. J.
Crim. Case 1 (Apr. 10, 1991), ECF No. 8. Colon was sentenced
to a term of six months incarceration, and a term of one year
supervised release. Id. at 3. On November 28, 2016,
Colon requested the Court expunge her criminal record because
she is a law-abiding citizen and has "paid her debt to
society." Mot. for Expungement 1, ECF No. 12.
Celebrating her twenty-fifth year of release, Colon noted
that as the proprietor of three small businesses, she is
"a positive, productive role model in [her]
first question that any federal court must ask when reviewing
a request for action is whether it has the jurisdiction to
take the action being requested. Virginia trial courts are
courts of general jurisdiction whose actions are presumed to
be correct. Gemmell v. Powers, 170 Va. 43, 51-52
(Va. 1938) ("Nothing is better settled than that the
judgments and decrees of a court of general jurisdiction,
acting within the scope of its authority, are presumed to be
right, until the contrary appears, and are not open to
collateral attack . . . .") . Federal courts, on the
other hand, are courts of limited jurisdiction with specific
jurisdictional requirements and limitations. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
. As courts of limited jurisdiction, federal courts
"possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial
decree." Id. (citations omitted) . "It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary
rests upon the party asserting jurisdiction."
Id. (citations omitted). Therefore, Colon bears the
burden of showing that this Court has jurisdiction to grant
her request for expungement.
to expunge federal criminal convictions is not explicitly
authorized by the Constitution of the United States or by any
statute of the United States. See United States v.
Mitchell, 683 F.Supp.2d 427, 429 (E.D. Va. 2010) . While
it is true that a district court has original jurisdiction
over "all offenses against the laws of the United
States, " 18 U.S.C. § 3231, Rule 4(b) of the
Federal Rules of Appellate Procedure provides a deadline for
notices of appeal from the court's judgment and acts as a
"jurisdictional limitation upon the powers of the
district court after a judgment of conviction has been
entered, " United States v. Coloian, 480 F.3d
47, 50 (1st Cir. 2007), see United States v.
Breeden, 366 F.3d 369, 372 (4th Cir. 2004) (appellate
jurisdiction flows from 28 U.S.C. § 1291, which grants
jurisdiction from final decisions of district courts, and
"finality comes with the conviction and imposition of
sentence") . Therefore, the Court has no continuing
original jurisdiction because the entry of the judgment in
Colon's case divested this Court of such original
jurisdiction. Mitchell, 683 F.Supp.2d at 432 (citing
Breeden, 366 F.3d at 372) . Additionally, Congress
has not explicitly provided federal courts with the
jurisdiction to expunge criminal convictions solely for
equitable reasons, though it has specifically provided for
expungement or related remedies in other narrowly defined
circumstances. Coloian, 480 F.3d at 49 n.4
(collecting examples of such statutes) . However, the absence
of a grant of such explicit jurisdiction in the Constitution
or by statute does not end the inquiry, as the Court must
still determine whether it has ancillary jurisdiction over
Colon's Motion for Expungement.
jurisdiction arises when a district court acquires
jurisdiction of a case or controversy in its entirety, and,
as an incident to the full disposition of the matter, may
hear collateral proceedings when necessary to allow it to
vindicate its role as a tribunal." Mitchell,
683 F.Supp.2d at 429 (internal quotations and citations
omitted). Examples of such ancillary jurisdiction include the
power of a federal court to award costs and attorney's
fees in a case that is already properly before such court and
issuance of injunctions to enforce court orders. Id.
at 429 n. 5 . In Kokkonen v. Guardian Life Insurance
Company of America, the United States Supreme Court
examined the breadth of such federal court ancillary
jurisdiction and determined that federal courts are empowered
to invoke ancillary jurisdiction in two specific
circumstances: (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." Kokkonen, 511 U.S. at 379-80.
United States v. Mitchell, the court considered the
use of ancillary jurisdiction in the post-Kokkonen
context, and identified why expungement cases typically do
not warrant the exercise of ancillary jurisdiction. First, to
warrant the exercise of ancillary jurisdiction, the facts of
defendant's conviction and her justifications for
expungement must be "interdependent." Kokkonen, 511
U.S. at 379-80. However, often in cases of expungement
"[t]he facts relating to defendant's conviction are
wholly separate and distinct from the equitable circumstances
that defendant contends justify the expungement of [her]
criminal record." Mitchell, 683 F.Supp.2d at
433. In Colon's case, the original claim brought before
this Court (the criminal prosecution) has no relation to the
equitable grounds upon which Colon seeks the expungement of
her criminal record (to signify the satisfaction of her debt
to society) . See United States v. Taylor, 2014 WL
1713485 at *3 (E.D. Va. Apr. 29, 2014) (noting the disconnect
between the facts surrounding defendant's assault charges
and subsequent alienation by co-workers). Because Colon has
not shown that the facts relating to her charge are
"factually interdependent" with those for which she
seeks expungement, the first potential basis for the exercise
of ancillary jurisdiction is absent. Kokkonen, 511
U.S. at 379-80.
cases typically fail the second Kokkonen factor
because expunging a criminal record generally does not
"enable a court to function successfully, that is, to
manage its proceedings, vindicate its authority and
effectuate its decrees." Id.; see
Mitchell, 683 F.Supp.2d at 433. In Colon's case, the
preservation of her criminal conviction remains important to
the "reliability and integrity of federal criminal
conviction records." Mitchell, 683 F.Supp.2d at
433 (noting that to conclude that federal courts "have
ancillary jurisdiction to expunge criminal convictions for
equitable reasons would allow district courts across the
country to develop possibly inconsistent equitable standards
of ordering expungement"); see also United States v.
Taylor, 2014 WL 1713485 at *4 (E.D. Va. Apr. 29, 2014)
(determining that because defendant's case was dismissed
with prejudice there were no proceedings to manage) . Thus,
expunging Colon's criminal record would not "enable
the court to function successfully, " but rather may
frustrate efforts to properly document criminal convictions.
Kokkonen, 511 U.S. at 379-80. Consequently, the second
potential basis for exercise of ancillary jurisdiction is
lacking in Colon's case. See id. In conclusion,
the facts offered by Colon do not support the exercise of
ancillary jurisdiction on either basis recognized in
Kokkonen, and the Court therefore has no
jurisdiction over Colon's Motion for Expungement.
the Court had ancillary jurisdiction to hear Colon's
Motion, this case still would not warrant
expungement. In Allen v. Webster, the United
States Court of Appeals for the Fourth Circuit noted, in the
pre-Kokkonen context, that the expungement remedy
"is a relief confined to exceptional
circumstances." Allen v. Webster, 742 F.2d 153,
155 (4th Cir. 1984) (internal quotations and citations
omitted). Exceptional circumstances that warrant expungement
have been found to exist in some cases, including:
[W]here procedures of mass arrests rendered judicial
determination of probable cause impossible, Sullivan v.
Murphy, 478 F.2d 938 (1973); where the court determined
the sole purpose of the arrests was to harass civil rights
workers, United States v. McLeod, 385 F.2d 734 (5th
Cir. 1967); where the police misused the police records to
the detriment of the defendant, Wheeler v. Goodman,
306 F.Supp. 58 (W.D. N.C. 1969); or where the arrest was
proper but was based on a statute later declared
unconstitutional, Kowall v. United States, 53 F.R.D.
211 (W.D. Mich. 1971).
Id. (quoting United States v. Schnitzer,
567 F.2d 536, 539 (2d Cir. 1977)). Colon does not assert any
of the exceptional circumstances identified in
Allen, see United States v. Adigwe, 2015 WL
7568198 at *2 (D. Md. Nov. 25, 2015) (denying defendant's
request for expungement because he "provided no basis
for the extraordinary remedy he [sought]"), such as
asserting that her criminal record disadvantages her
employment opportunities, cf. United States v.
McKnight, 33 F.Supp.3d 577, 587 (D. Md. 2014)
("[T]he detrimental effect of a criminal record on
employment prospects . . . weights] in favor of
expunction."); United States v. Koelle, 2017 WL
44387 at *1 (D. Md. Jan. 3, 2017) (finding that a
disadvantaged employment record "weighs heavily in favor
of expungement"). Therefore, even if the Court did have
jurisdiction, Colon's motion would be denied because she
fails to assert any exceptional circumstance that would
reasons stated above, the Court concludes that it does not
have jurisdiction to substantively consider Colon's
motion for expungement. Such a conclusion in no way reflects
upon the merits of Colon's motion. Therefore, while this
Court concludes it has no authority to grant Colon's
request, Colon may wish to submit a request for a
presidential pardon pursuant to the authority granted the
President by the United States Constitution, U.S. Const, art.
II, § 2, and the procedure outlined by regulation at 28
C.F.R. § 1.1.
is ADVISED that she may appeal from this Order by forwarding
a written notice of appeal to the Clerk of the United States
District Court, United States Courthouse, 600 Granby Street,
Norfolk, Virginia 23510. Said written notice must be ...