Texas-Book-Gun Law Armed And Educated - Flipbook - Page 389
B. Expungement of federal convictions
1. No law exists for general federal expungement
Congress has not provided federal legislation that offers any
comprehensive authority or procedure for expunging criminal
offenses. There exist only statutes that allow expungement in certain
cases for possession of small amounts of controlled substances
and, interestingly, a procedure to expunge DNA samples of certain
members of the military who were wrongfully convicted. See 18
U.S.C. § 3607(c) and 10 U.S.C. § 1565(e). Because there is no
statutory guidance, federal courts have literally made up the rules
and procedures themselves, often coming to different conclusions.
Some federal court circuits have stated they have no power to
expunge records. However, other federal courts have indicated that
they do have the power to expunge. The federal Fifth Circuit, which
includes Texas, has held that under certain limited circumstances,
federal courts may order expungement both of records held by
other branches of the government (e.g., executive branch) and its
own court records. See Sealed Appellant v. Sealed Appellee, 130
F.3d 695 (5th Cir. 1997). The Supreme Court has passed on hearing
cases that would have resolved the split between the circuits. This
issue remains legally murky.
2. Possible procedure for federal expungement
There are no statutory guidelines for how to seek an expungement
under federal law; however, the place to start would be to file a
motion with the federal court that issued the conviction that a person
wants to have expunged. However, federal judges very rarely grant
these types of motions. Some circuits, including the Fifth Circuit,
have adopted a balancing test to decide if a record held by the court
may be expunged. The court weighs the interests of the government
in keeping open, unredacted records, against the injury to the
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