United States District Court, S.D. California
ORDER DENYING MOTION TO EXPUNGE MISDEMEANOR
M. James Lorenz United States District Judge
2, 2019, Defendant Tony T. Holmes filed a Motion to Expunge
Misdemeanor Conviction. In support of his Motion, Holmes
submitted a letter explaining his request, and provided
additional letters from members of the community. [ECF NO 1.]
The Government filed a Response in Opposition on October 17,
2019. [ECF NO. 24.] For the following reasons, the Court
denies Holmes' request.
asks this Court to expunge his 2003 conviction for theft of
public money and aiding and abetting under 18 U.S.C. §
641 because the “removal of this case will allow for me
to further my career and continue to do what I love and
that's to teach and mentor.” (Mot. at 2). According
to Holmes, he served as an active duty member of the United
State Marine Corps, deploying to Iraq and Afghanistan after
his conviction. (Id.) Holmes retired from the Marine
Corps in 2014 and has a 90% disability rating with the
Veterans Administration (VA). In November 2018, Holmes
completed his college degree, after which he became a
substitute teacher at a high school. (Id.) Holmes
has been offered an internship to teach Life Sciences and
P.E., and seeks to become a credentialed teacher.
Government recognizes Defendant's extraordinary
accomplishments and the equities he presents, yet contends
that there are no statutes under which expungement of
Holmes' conviction is authorized, and that Holmes has not
demonstrated that his conviction was unlawful or in error.
(Oppo. at 4-5). Therefore, according to the Government, the
request must be denied.
defendant who seeks expungement requests “judicial
editing of history.” United States v. Crowell,
374 F.3d 790, 792 (9th Cir. 2004). “[I]n general when a
defendant moves to expunge records, he asks that the court
destroy or seal the records of the fact of the
defendant's conviction and not the conviction
itself.” Crowell, 374 F.3d at 792. Expungement
on its own “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, 460 U.S. 103,
Ninth Circuit recognizes two sources of authority by which
courts may expunge records of a criminal conviction: statutes
and the court's inherent authority. Crowell, 374
F.3d at 793. Where a statute governs, “Congress has set
the conditions by which the courts may expunge records of
federal convictions in particular cases.” Id.
at 792. There are no statutes that authorize expungement of
convictions for public theft such as Defendant's,
therefore this Court may only expunge his conviction under
its ancillary jurisdiction.
courts have inherent authority to grant expungements of
criminal records in appropriate and extraordinary cases,
although this is not a general power granted by Congress.
Id. at 793. Under that authority, “a district
court's ancillary jurisdiction is limited to expunging
the record of an unlawful arrest or conviction, or to
correcting a clerical error.” United States v.
Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). District
courts do not have the power “to expunge a record of a
valid arrest and conviction solely for equitable
considerations” because “the expungement of the
record of a valid arrest and conviction usurps the powers
that the framers of the Constitution allocated to Congress,
the Executive, and the states.” Id.
contends the expungement will allow him to further develop
his career, teach and be a mentor. The Court recognizes and
commends Defendant's considerable accomplishments,
including his war-time deployments while serving in the
Marine Corps, his college degree, and leadership as a
substitute teacher and mentor. However, there is no
suggestion that Mr. Holmes' conviction was in any way
unlawful or invalid, or that there was a clerical error.
See Crowell, 374 F.3d at 794. This Court does not
have the power to expunge Holmes' prior conviction based
upon equitable considerations alone. Id. Collateral
consequences, such as obstacles to pursuing a career, are
insufficient to warrant relief. See Sumner, 226 F.3d
at 1015 (holding that a district court does not have
ancillary jurisdiction in a criminal case to expunge an
arrest or conviction record where the sole basis alleged by
the defendant is that he or she seeks equitable relief such
as enhancing employment opportunities); United States v.
Smith, 940 F.2d 395, (9th Cir. 1991); United States
v. Vasquez, 74 F.Supp.2d 964, 968 (S.D. Cal. 1999).
Though Mr. Holmes' career prospects may be limited by his
prior conviction, the Court is unable to expunge his prior
conviction for that reason. See id.
reasons set forth above, the Court DENIES
without prejudice Defendant's request to expunge his
Nothing in this Order prohibits Holmes
from seeking executive clemency from the President of the
United States. U.S. Const., Art. II, sec. 2; 28 C.F.R. §
1.6(a); 28 C.F.R. § 1.6(c); United States v.