                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2006

USA v. Rowlands
Precedential or Non-Precedential: Precedential

Docket No. 05-3425




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Recommended Citation
"USA v. Rowlands" (2006). 2006 Decisions. Paper 797.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/797


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                                               PRECEDENTIAL

 UNITED STATES COURT OF APPEALS FOR THE THIRD
                   CIRCUIT


                           No. 05-3425




                UNITED STATES OF AMERICA

                                v.

                    DAVID C. ROWLANDS,
                                   Appellant


          On Appeal from the United States District Court
                 for the District of New Jersey
                 (D.C. Crim. No. 81-cr-00245)
              District Judge: Hon. John C. Lifland


                      Argued April 21, 2006

     Before: SLOVITER and AMBRO, Circuit Judges, and
                 DuBOIS * , District Judge

                       (Filed June 9, 2006)


Lawrence S. Lustberg
Fruqan Mouzon      (Argued)
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
Newark, New Jersey 07102

      Attorneys for Appellant


      *
         Hon. Jan E. DuBois, Senior Judge, United States District
Court for the Eastern District of Pennsylvania.
Christopher J. Christie
       United States Attorney
George S. Leone
       Chief, Appeals Division
David B. Lat
Mark E. Coyne        (Argued)
       Assistant United States Attorneys
Newark, New Jersey 07102-2535

       Attorneys for Appellee


                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

        This case presents the question of whether federal courts
have the power to authorize expungement of a criminal record
where the legality of the underlying criminal conviction is not
being challenged. The District Court denied the application of
Appellant David C. Rowlands for expungement of his 1982
conviction of several white collar crimes. On appeal, Rowlands
contends that the District Court erred in holding that it lacked
jurisdiction over his petition for expungement either pursuant to
its inherent power to order equitable relief or pursuant to the All
Writs Act.

                                 I.

       David Rowlands was a public official and employee of
the town of Kearny, New Jersey. He served, at various times, as
a Councilman and Mayor of Kearny. Unbeknownst to
Rowlands, another Kearny public official solicited a bribe of
$12,000 in cash from Richard Mace, the owner of a furniture
store. In exchange for the bribe, Richard Mace was promised
approval of his plans to build additional showrooms. Rowlands
received $6,000 in cash, and the remainder of the bribe was kept
by another public official.



                                 2
        Rowlands was subsequently indicted and, following a
jury trial, he was convicted of conspiring to obstruct and delay
interstate commerce in violation of 18 U.S.C. § 1951, knowingly
attempting to obstruct and delay interstate commerce by
extortion, in violation of 18 U.S.C. § 1951-52, and knowingly
attempting to influence and obstruct a federal grand jury
investigation, in violation of 18 U.S.C. § 1503. Rowlands was
sentenced to eight years in prison. In explaining this sentence,
the District Court stated: “I was morally certain that the way they
were operating in that community on that one transaction
indicated to me that they were in business and that there was a
lot more to Messrs. Rowlands and Grimes than the $6,000 they
each took from Mr. Mace.” App. at 31-32. Nonetheless, after
Rowlands had served only ten months, the District Court
reduced Rowlands’s sentence to time served. Two Assistant
United States Attorneys who had prosecuted Rowlands on behalf
of the Government urged reduction of Rowlands’s sentence
because of his significant post-sentencing cooperation in the
Government’s investigation and prosecution of others. At the
sentence reduction hearing, the District Court noted, “I am
satisfied, morally and beyond any shadow of a doubt that these
two men have fully cooperated and have done everything they
could do to be honest, truthful and helpful, and to make
amends.” App. at 33. While a co-defendant’s defense lawyer
was present at the hearing, Rowlands’s defense lawyer was not.

        Since Rowlands’s release from prison in 1983, he has
been gainfully employed in the retail automobile industry as a
salesman and manager. In 1990, he sought reinstatement of his
teaching certificate, which had been revoked pursuant to New
Jersey law, because of his conviction. See generally N.J.S.A.
18A:6-38. Two Assistant United States Attorneys who
prosecuted Rowlands on behalf of the Government wrote letters
on Rowlands’s behalf. One wrote to the New Jersey State Board
of Examiners and urged the Board to “exercise lenity” and
reinstate Rowlands’s teaching certificate. The other sent a letter
that stated, “While there is no question that Mr. Rowlands was
properly convicted of serious crimes, there is also no question
that he has been punished for those crimes and that he has done
all within his power to make restitution. . . . It is my personal

                                 3
hope that David Rowlands’ past criminal activity will not be a
permanent impediment to meaningful and rewarding
employment and community service in the future.” App. at 36.
In 2005, the State Board of Examiners declined to reinstate
Rowlands’s teaching certificate or to recertify him.

        Rowlands then turned to the courts. In January 2005,
Rowlands petitioned the United States District Court for the
District of New Jersey for an expungement of his criminal
record. Rowlands contended that the District Court had
jurisdiction over his petition pursuant to its inherent equitable
power and pursuant to the All Writs Act, 28 U.S.C. § 1651. The
District Court dismissed the petition, concluding that neither its
inherent equitable powers nor the All Writs Act provided it with
jurisdiction over Rowlands’s petition. On July 8, 2005,
Rowlands timely filed his notice of appeal with this court.

       On this appeal, Rowlands explains that he seeks
expungement of his record in order to gain re-certification as a
teacher. He contends that because his defense attorney was not
present at his reduction of sentence hearing, the issue of whether
his conviction should serve as a permanent forfeiture of his New
Jersey teaching license was never raised.

        This court has twice previously considered the question of
whether federal courts have the power to authorize expungement
of a criminal record. See United States v. Noonan, 906 F.2d 952
(3d Cir. 1990); United States v. Dunegan, 251 F.3d 477 (3d Cir.
2001). Rowlands contends that these decisions are
“contradictory.” Appellant’s Br. at 9. We revisit the issue now
to clarify our jurisprudence.

                                II.

       A defendant who moves to expunge his or her conviction
does not seek to vacate or set aside the conviction. Rather, s/he
seeks “[t]he judicial editing of history.” Rogers v. Slaughter,
469 F.2d 1084, 1085 (5th Cir. 1972) (per curiam). Although
different states may define “expungement” differently, “in
general when a defendant moves to expunge records, she asks

                                4
that the court destroy or seal the records of the fact of the
defendant's conviction and not the conviction itself.” United
States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004).

       Rowlands contends that this court’s jurisprudence
regarding expungement is inconsistent. He notes that in United
States v. Noonan, we stated, “Clearly, a federal court has the
inherent power to expunge an arrest and conviction record.” 906
F.2d 952, 956 (3d Cir. 1990). However, eleven years later, in
United States v. Dunegan, “we h[e]ld that in the absence of any
applicable statute enacted by Congress, or an allegation that the
criminal proceedings were invalid or illegal, a District Court
does not have the jurisdiction to expunge a criminal record, even
when ending in an acquittal.” 251 F.3d 477, 480 (3d Cir. 2001).
According to Rowlands, “The Dunegan panel’s conclusion was
in direct contradiction to the earlier Noonan decision.”
Appellant’s Br. at 19. We find this argument unconvincing. A
close reading of Noonan and Dunegan demonstrates that the two
opinions are not in conflict.

        In his case, Noonan sought expungement of his
conviction of violation of the Military Selective Service Act.
Noonan’s argument that his record should be expunged was
predicated on the premise that “a Presidential pardon has the
force of wiping out guilt.” Noonan, 906 F.2d at 958. Therefore,
he contended the presidential pardon, restoring to him “full
political [and] civil rights” as well as “other rights” constituted
the legal authority for expunging his criminal conviction.” Id. at
955 (alteration in original) (internal quotation marks omitted).
We rejected the argument that “the President has the ability,
through the pardon power vested under Article II, § 2, to tamper
with judicial records.” Id. at 956. We stated that such an idea
“flies in the face of the separation of powers doctrine.” Id.
After noting that in inquiring into the effect of a pardon on a
valid conviction record we were writing on a clean slate, we
stated: “The collective experience of our judiciary reflected by
reported cases, however, discloses that expunction of criminal
court records is an extraordinary remedy. Clearly, a federal
court has the inherent power to expunge an arrest and conviction
record.” Id. Rowlands relies on the latter sentence as the basis

                                 5
for his claim that we have jurisdiction. Significantly, in Noonan
we ultimately held that a presidential pardon did not entitle
Noonan to expungement of his criminal record.

        Rowlands is mistaken in his contention that Noonan holds
that this court has jurisdiction over any and all petitions for
expungement. Our holding in Noonan was not nearly that broad.
We held only that we have jurisdiction over petitions for
expungement in certain narrow circumstances – namely, where
the “predicate for the expunction is a challenge to the validity of
either the arrest or conviction.” Id. at 957. We noted that the
instances in which courts had previously granted expungement
were those “in which a court invoked its inherent power to
remedy an acquittal, an unconstitutional conviction or an abuse
of power.” Id. We noted that we found no cases in which
expungement had “been ordered (1) where the circumstances of
conviction have not been challenged, or (2) on the basis of a
pardon following an unchallenged or otherwise valid
conviction.” Id. In cases where expungement was warranted,
we applied “a balancing test in which the harm to the individual
caused by the existence of the records is weighed against the
governmental interest in maintenance of the records.” Id.
Because we found Noonan’s argument that his pardon “blot[ted]
out of existence [his] guilt” unconvincing, we declined to apply
the balancing test to his case. Id. at 955 (internal quotation
marks omitted).

       The cases upon which Noonan relied support our
conclusion here that we have jurisdiction over petitions for
expungement in narrow circumstances: where the validity of the
underlying criminal proceeding is challenged. In United States
v. Friesen, the court stated that only “unusually compelling
circumstances . . . justify the exercise of the trial court’s
‘narrow’ power to order expunction.” 853 F.2d 816, 818 (10th
Cir. 1988). Because the trial court had granted a petition for
expungement without a finding of unusual circumstances, the
Court of Appeals for the Tenth Circuit reversed the grant.
Similarly, in United States v. McMains, the court stated, “It is
established that the federal courts have inherent power to
expunge criminal records when necessary to preserve basic legal

                                 6
rights. The power is a narrow one, usually exercised in cases of
illegal prosecution or acquittals and is not to be routinely used.”
540 F.2d 387, 389-90 (8th Cir. 1978) (citations omitted). Nearly
all of the cases the McMains court cited in support of its
conclusion that district courts have jurisdiction over petitions for
expungement challenged the legality of the underlying criminal
proceeding.1

        Our narrow holding in Noonan does not conflict with our
holding in Dunegan as Rowlands vigorously argues. In
Dunegan, we addressed the question of whether this court had
“jurisdiction . . . to entertain . . . a petition [for expunction] in the
absence of a challenge to the legality of the conviction or arrest.”
251 F.3d at 479 (emphasis added). Dunegan was a police officer
who had been indicted for violating a suspect’s civil rights. He
was subsequently tried and acquitted. Dunegan did not contend
that his indictment was invalid or legally infirm for any other
reason. The Dunegan court expressly did not “consider . . .
whether a record may be expunged on the basis of Constitutional
or statutory infirmity in the underlying criminal proceedings or
on the basis of an unlawful arrest or conviction.” Id. at 480. It
is evident, therefore, that our holding in Noonan – that we have
jurisdiction to consider expungement where the underlying
criminal proceeding is being challenged – does not contradict



       1
           See Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974)
(holding that expungement of arrest record from FBI files
appropriate where law enforcement officers lacked probable cause
to arrest defendant); Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir.
1973), cert. denied, 414 U.S. 880 (1974) (finding expungement of
records of mass arrests appropriate where established procedures
broke down so that there was no showing of probable cause);
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) (finding
expungement of criminal records appropriate when arrests were
made for purpose of interfering with right to vote). The one
exception is Chastain v. Kelley, 510 F.2d 1232 (D.C. Cir. 1975).
In that case, the petitioner, an FBI agent, sought expungement of
the administrative record regarding his dismissal after the FBI
reversed its decision to dismiss him.

                                   7
Dunegan.

       Notwithstanding our holdings in Noonan and Dunegan,
Rowlands urges this court to follow, inter alia, United States v.
Johnson, 714 F. Supp. 522 (S.D. Fla. 1989), and United States v.
Doe, 935 F. Supp. 478 (S.D.N.Y. 1996). In Johnson, the court
granted a petition for expungement because Johnson was
acquitted and retention of his criminal records would result in
the denial of future jobs. In Doe, the court granted a petition for
expungement in similar circumstances. These cases are
unconvincing. They are not from this Circuit, and our precedent
clearly establishes that we have jurisdiction over petitions for
expungement only when the validity of the underlying criminal
proceeding is challenged. Because Rowlands has not attacked
the validity of the underlying conviction, we reject his
contention that we have inherent jurisdiction over his petition for
expungement.

                                III.

         Rowlands’s alternative contention that the All Writs Act,
28 U.S.C. § 1651, grants federal district courts the legal
authority to expunge the record of a legal and valid criminal
conviction is also unavailing. The All Writs Act, in pertinent
part, provides: “The Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a). “[A] court of
appeals has the power, under the ‘all writs’ act, to issue a writ
 . . . ‘where it may be necessary for the exercise of a jurisdiction
already existing.’” United States v. Brooks, 230 F.3d 643, 646
n.3 (3d Cir. 2000) (citing Whitney v. Dick, 202 U.S. 132, 136-37
(1906)); see also Syngenta Crop Prot., Inc. v. Henson, 537 U.S.
28, 33 (2002). We concluded above that we do not have
jurisdiction over Rowlands’s petition. The All Writs Act does
nothing to alter our conclusion.

       Rowlands unconvincingly argues that other courts have
found authority to grant petitions for expungement pursuant to
the All Writs Act. He cites to United States v. Javanmard, 767

                                 8
F. Supp. 1109 (D. Kan. 1991), and United States v. Bohr, 406 F.
Supp. 1218 (E.D. Wisc. 1976), in support of this contention. In
Javanmard, the court granted a petition for expungement of a
criminal conviction pursuant to a guilty plea because the record
of the conviction would preclude the petitioner from availing
himself of the amnesty provisions of the Immigration Reform
and Control Act. The court found that it had jurisdiction over
the petition for expungement and invoked the All Writs Act in
aid of that jurisdiction. In Bohr, the court granted a petition for
expungement where the petitioner was a lawyer whose legal
practice was severely hindered by the record of his conviction.2

        Neither of these cases provides any support for
Rowlands’s contention. First, we have concluded we lack
jurisdiction over his petition. Second, both Javanmard and Bohr
have been superseded by appellate authority from the applicable
courts of appeals. In United States v. Pinto, 1 F.3d 1069 (10th
Cir. 1993), the Court of Appeals for the Tenth Circuit (which
includes the District of Kansas) held that it lacked authority to
expunge the petitioner’s conviction for filing false tax returns.
The petitioner did not challenge the validity of her conviction
but contended that the record of the conviction impeded her from
finding employment. The court held that the trial court “was
without power to grant this petition.” Id. at 1070. It also
rejected the All Writs Act as a source of jurisdiction over Pinto’s
petition: “While we agree that the All Writs Act plays a part in
enabling the court to issue the writs . . . necessary to accomplish
an actual expungement, we believe that the authority to consider
the issue in the first place is not contained in that Act.” Id. at
1070 n.1. Pinto clearly rejects the reasoning in Javanmard.

       Similarly, in United States v. Flowers, 389 F.3d 737 (7th
Cir. 2004), the Court of Appeals for the Seventh Circuit (which
includes the District of Wisconsin) held that expungement is not
available to remedy “adverse consequences which attend every



       2
         The relevance of the All Writs Act to the holding in Bohr
is unclear. The court cites the Act in passing without any
discussion.

                                 9
arrest and conviction. Those are unfortunate but generally not
considered unwarranted adverse consequences. It is possible,
even likely, that any person with an arrest or conviction record
may well be impeded in finding employment.” Id. at 739
(emphasis in original). As an example of “unwarranted adverse
consequences,” the court cited to McLeod, in which the Court of
Appeals for the Fifth Circuit ordered expungement of records of
arrests made in order to harass. See United States v. McLeod,
385 F.2d 734 (5th Cir. 1967). Under Flowers, the analysis in
Bohr is incorrect. A defendant’s difficulty in finding or
retaining employment is a common consequence of conviction
and does not constitute grounds for expungement.

      Because we agree that there is no jurisdiction over
Rowlands’s petition for expungement, we will affirm the District
Court’s dismissal.




                               10
