United States v. James P. Smith, 940 F.2d 395 (9th Cir. 1991). · Go Syfert
United States v. James P. Smith, 940 F.2d 395 (9th Cir. 1991). Cases Citing This Book View Copy Cite
68 citation events (39 in the last 25 years) across 18 distinct courts.
Strongest positive: In Re: Expungement of Record of N.B. (wvactapp, 2024-11-14)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 39 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) In Re: Expungement of Record of N.B.
wvactapp · 2024 · quote attribution · 1 verbatim quote · confidence high
expungement is a narrow power, appropriately used only in extreme circumstances.
discussed Cited as authority (verbatim quote) In Re: Petition of A.N.T. for Expungement of Records
W. Va. · 2017 · quote attribution · 1 verbatim quote · confidence high
ex-pungement is a narrow power, appropriately used only in extreme circumstances.
cited Cited as authority (rule) Price 362584 v. Corrigan
W.D. Mich. · 2024 · confidence medium
Instead, they are the natural . . . collateral consequences of having been convicted.” United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991).
discussed Cited as authority (rule) Pettibone v. Biden, Jr. (2×) also: Cited "see"
D. Or. · 2024 · confidence medium
See Maurer, 691 F.2d at 437 ; United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991); Mayfield v. United States, 599 F.3d 964, 970-71 (9th Cir. 2010); Fazaga v. FBI, 965 F.3d 1015 , 1053-55 (9th Cir. 2020), rev’d and remanded on other grounds, 595 U.S. 344 (2022)); see also Wilson v. Webster, 467 F.2d 1282, 1283-84 (9th Cir. 1972) (finding that the “continued existence” of arrest records of individuals whose criminal charges had been dismissed “may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate”); Shipp v. Todd, 568 F.2d 133, 134 …
cited Cited as authority (rule) United States v. Salvatore Groppo
9th Cir. · 2024 · confidence medium
United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per curiam).
discussed Cited as authority (rule) Nina Alley v. County of Pima
D. Ariz. · 2024 · confidence medium
Sheriff’s Dep’t, 691 F.2d 434, 437 (9th 3 Cir. 1982); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per curiam). 4 However, the Ninth Circuit has made clear that “a person convicted of a crime” cannot 5 “collaterally attack her conviction by moving to expunge the records of her conviction.” 6 United States v. Crowell, 374 F.3d 790, 791 (9th Cir. 2004).
cited Cited as authority (rule) Lorrie Sue McClary v. Supreme Court of California
C.D. Cal. · 2021 · confidence medium
See United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991).
discussed Cited as authority (rule) Adlerstein v. United States Customs and Border Protection
D. Ariz. · 2020 · confidence medium
Extraordinary circumstances may include arrests that were executed 19 for the purpose of harassment only, United States v. McLeod, 385 F.2d 734 , 749–50 (5th Cir. 20 1967), where an arrest is unlawful, or where the government has engaged in misconduct, 21 United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991); see also United States v. Crowell, 22 374 F.3d 790 (9th Cir. 2004).
discussed Cited as authority (rule) Yassir Fazaga v. Fbi
9th Cir. · 2020 · confidence medium
WALLS and otherwise, to vindicate constitutional rights.32 The Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement relief under the Constitution.33 Previous cases involving 32 See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir. 2000) (“A district court has the power to ex…
discussed Cited as authority (rule) Yassir Fazaga v. Fbi
9th Cir. · 2019 · confidence medium
WALLS 73 We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights.32 The Privacy Act, 5 U.S.C. § 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act’s substantive provisions, does not displace the availability of expungement 32 See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (…
discussed Cited as authority (rule) Doe v. United States
E.D.N.Y · 2016 · confidence medium
See United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir.1993) ("We have stated that, in extreme circumstances, an arrest record may be expunged after dismissal of the charges or acquittal.” (citing United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988))); United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) ("Indeed, we have sanctioned the remedy of expunction of criminal records in civil rights cases involving unconstitutional state convictions.” (citations omitted)); United States v. Noonan, 906 F.2d 952, 956 (3d Cir.1990) ("Clearly, a federal court has the inherent power to exp…
discussed Cited as authority (rule) Doe v. United States
10th Cir. · 2015 · confidence medium
As in this case, we concluded on the merits that the district court had rightly held that it was without power to grant the petition, and that “there was no statutory authority for the district court’s expunction order.” Pinto, 1 F.3d at 1070 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991)).
discussed Cited as authority (rule) Puente Arizona v. Arpaio
D. Ariz. · 2015 · confidence medium
See United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000); United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (“[W]e have sanctioned the remedy of ex-punction of [local] criminal records in civil rights cases involving unconstitutional state convictions.”).
discussed Cited as authority (rule) Doe v. United States
10th Cir. · 2014 · confidence medium
As in this case, we concluded on the merits that the district court had rightly held that it was without power to grant the petition, and that “there was no statutory authority for the district court’s expunction order.” Pinto, 1 F.3d at 1070 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991)).
discussed Cited as authority (rule) Tokoph v. United States
10th Cir. · 2014 · confidence medium
As in this case, we concluded on the merits that the district court had rightly held that it was without power to grant the petition, and that “there was no statutory authority for the district court’s expunction order.” Pinto, 1 F.3d at 1070 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991)).
discussed Cited as authority (rule) Erickson v. United States
D. Or. · 2010 · confidence medium
However, “even where a conviction has been held unlawful and vacated, expungement remains a ‘narrow, extraordinary exception,’ one ‘appropriately used only in extreme circumstances.’ ” Id. at 795 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam)).
discussed Cited as authority (rule) Farmer v. State, Department of Law, Office of the Attorney General (2×)
Alaska · 2010 · confidence medium
United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991). 13 .
discussed Cited as authority (rule) United States v. Kotsiris
N.D. Ill. · 2008 · confidence medium
However, the Seventh Circuit has indicated that these are not the sort of “adverse consequences” that warrant expungement. “[I]f 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.’ ” Id. at 739-40 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Katherine Ann Flowers
7th Cir. · 2004 · confidence medium
As the Court of Appeals for the Ninth Circuit has stated, if employment problems resulting *740 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.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Flowers, Katherine A
7th Cir. · 2004 · confidence medium
As the Court of Appeals for the Ninth Circuit has stated, if em- ployment problems resulting from a criminal record were “sufficient to outweigh the government’s interest in main- taining criminal records, expunction would no longer be the narrow, extraordinary exception, but a generally available remedy.” United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991).
discussed Cited as authority (rule) United States v. Eileen Crowell
9th Cir. · 2004 · confidence medium
Once a petitioner has succeeded in getting her conviction vacated, a district court may then determine whether the petitioner has asserted circumstances extraordinary and unusual enough that would merit expungement of her criminal judicial records. 6 We underscore what our cases have clearly held: even where a conviction has been held unlawful and vacated, expungement remains a “narrow, extraordinary exception,” one “appropriately used only in extreme circumstances.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam).
cited Cited as authority (rule) United States v. Ridenour
9th Cir. · 2003 · confidence medium
See United States v. Sumner, 226 F.3d 1005, 1014-15 (9th Cir.2000); United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam).
discussed Cited as authority (rule) United States v. Vasquez (2×)
S.D. Cal. · 1999 · confidence medium
JURISDICTION Although it is an open question in the Ninth Circuit, a clear majority of courts in other circuits have recognized that federal courts have authority to order expungement of criminal conviction records in certain circumstances. 3 Courts recognizing the power to expunge criminal conviction records generally treat the remedy as a matter ancillary to the underlying *966 criminal action, see, e.g., United States v. Schnitzer, 567 F.2d 536, 538 (2nd Cir.1977); United States v. Linn, 513 F.2d 925, 927 (10th Cir.1975), and limit its availability to a narrow range of cases involving “ex…
examined Cited as authority (rule) United States v. Wiley (3×) also: Cited "see, e.g."
S.D. Ohio · 1999 · confidence medium
United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991); United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984); United States v. Schnitzer, 567 F.2d 536, 539 (2nd Cir.1977), cert. denied, 435 U.S. 907 , 98 S.Ct. 1456 , 55 L.Ed.2d 499 (1978); Menard v. Saxbe, 498 F.2d 1017, 1021 (D.C.Cir.1974).
discussed Cited as authority (rule) Marya S. Norman-Bloodsaw v. Lawrence Berkeley Laboratory
9th Cir. · 1998 · confidence medium
While the exercise of that "narrow power" is "appropriately used only in extreme circumstances," United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991), destruction of plaintiffs' medical records is a relatively moderate measure
discussed Cited as authority (rule) Norman-Bloodsaw v. Lawrence Berkeley Laboratory
9th Cir. · 1998 · confidence medium
While the exercise of that “narrow power” is “appropriately used only in extreme circumstances," United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991), destruction of plaintiffs’ medical records is a relatively moderate measure.
discussed Cited as authority (rule) United States v. Doe
S.D.N.Y. · 1996 · confidence medium
Courts have recognized that their equitable power to expunge is a narrow one, which should be exercised only in “extreme circumstances.” See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991); United States v. Noonan, 906 F.2d 952, 957 (3d Cir.1990); Schnitzer, 567 F.2d at 539-40 .
discussed Cited as authority (rule) United States v. Deborah Robinson
6th Cir. · 1996 · confidence medium
United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991); United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977), cert. denied, 435 U.S. 907 (1978); Menard v. Saxbe, 498 F.2d 1017, 1021 (D.C.Cir.1974). 5 Applying the foregoing standards, federal courts have most readily invoked the expungement power with respect to illegal convictions, convictions under statutes later deemed unconstitutional, and convictions obtained through governmental misconduct.
examined Cited as authority (rule) United States v. Arloha Mae Pinto (3×) also: Cited "see", Cited "see, e.g."
10th Cir. · 1993 · confidence medium
As an initial matter, “there was no statutory authority for the district court’s expunction order.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991). 1 Rather, any authority to order expungement must stem from the inherent equitable powers of the court.
examined Cited as authority (rule) United States v. Janik (4×) also: Cited "see"
N.D. Ill. · 1992 · confidence medium
Courts which have considered expunction acknowledge that expungement is a very narrow power exercised only in “extraordinary circumstances.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991).
cited Cited "see" United States v. Thomas Alan Sumner
9th Cir. · 2000 · signal: see · confidence high
See Smith, 940 F.2d at 396 ; United States v. G, 774 F.2d 1392, 1394 (9th Cir.1985).
discussed Cited "see" Doe v. United States
S.D. Cal. · 1997 · signal: see · confidence high
See United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (assuming, without deciding, that district courts have power to expunge criminal records).
discussed Cited "see, e.g." Gonzalez v. U.S. Customs and Border Protection
S.D. Cal. · 2021 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (reversing and 10 remanding where “there was no statutory authority for the district court’s expunction 11 order”).
cited Cited "see, e.g." Nina Alley v. County of Pima
D. Ariz. · 2021 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) 26 (per curiam).
discussed Cited "see, e.g." United States v. Salgueido
D.N.M. · 2017 · signal: see also · confidence medium
Pinto, 1 F.3d at 1070 ; see Bromley, 561 F.2d at 1364 (federal courts have power to order expungement of a conviction on habeas corpus review); see also United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (collecting cases); U.S. v. Harris, 847 F.Supp.2d 828 (D.
discussed Cited "see, e.g." Brown v. United States
E.D. Pa. · 2016 · signal: see, e.g. · confidence medium
See, e.g,, United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (assuming that federal courts have inherent power to expunge criminal records, but noting that "it is a narrow power, appropriately used only in extreme circumstances”); United States v. Schnitzer, 567 F.2d 536, 539 (2nd Cir.1977) ("[Ejxpungement lies within the equitable discretion of the court, and relief usually is granted only in extreme circumstances,” where "court have considered the delicate balancing of the equities between the right of privacy of the individual and the right of law enforcement to perform their ne…
discussed Cited "see, e.g." Benedict v. McMahon
E.D. Pa. · 2016 · signal: see also · confidence medium
See also United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (explaining that the equitable power to expunge is very narrow, and appropriately used only in extreme circumstances, such as to remedy an unconstitutional state court conviction or to preserve basic legal rights); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984) (explaining that the relief of expungement is confined to exceptional circumstances); Diamond v. United States, 649 F.2d 496, 499 (7th Cir.1981) (approving a case-by-case approach to expungement petitions while acknowledging the need to balance the public interest in …
discussed Cited "see, e.g." United States v. Lopez-Serrato
9th Cir. · 2002 · signal: see also · confidence medium
This contention is unpersuasive as we have previously held that federal courts do not have ancillary jurisdiction “in a criminal case to expunge [a] ... conviction record where the sole basis alleged by the defendant is that he or she seeks equitable relief.” See id. at 1015 ; see also United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (holding that the effects of a conviction, including limitations on future employment, were not adequate grounds for expunction, but were instead, “the natural consequence of having been convicted”).
discussed Cited "see, e.g." United States v. Rabadi
S.D.N.Y. · 1995 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991); United States v. Noonan, 906 F.2d 952, 957 (3rd Cir.1990); Geary v. United States, 901 F.2d 679, 679-80 (8th Cir.1990); United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984); Menard v. Saxbe, 498 F.2d 1017, 1021 (D.C.Cir.1974).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
James P. SMITH, Defendant-Appellee
90-50496.
Court of Appeals for the Ninth Circuit.
Aug 2, 1991.
940 F.2d 395
1991 WL 143859
Stephen A. Mansfield, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant., Maxwell S. Keith, Los Angeles, Cal., for defendant-appellee.
Fletcher, Canby, Boochever.
Cited by 39 opinions  |  Published

ORDER

The memorandum disposition in the above-entitled case filed June 18, 1991 is amended and redesignated a per curiam opinion.

OPINION

PER CURIAM:

The United States appeals an order of the district court expunging James P. Smith’s criminal record. The district court believed that under its inherent equitable powers it could expunge all record of Smith’s felony convictions, without any finding or allegation that the convictions were unconstitutional or in violation of statutory authority. The court relied on Smith’s “otherwise clean background,” the relatively minor nature of his offenses, his[*396] successful completion of the five-year probationary term imposed for those convictions, and his laudable purpose for seeking the expunction — to reenlist in the United States Army Reserves during the Persian Gulf War. [1] 745 F.Supp. 1553.

Here, there was no statutory authority for the district court’s expunction order. Instead, the court assumed that among its inherent powers was that of expunction of criminal convictions in appropriate cases. Indeed, we have sanctioned the remedy of expunction of criminal records in civil rights cases involving unconstitutional state convictions. See, e.g., Maurer v. Los Angeles County Sheriffs Dept., 691 F.2d 434, 437 (9th Cir.1982) (“It is well settled that the federal courts have inherent equitable power to order ‘the expungement of local arrest' records as an appropriate remedy in the wake of police action in violation of constitutional rights.’ ”); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir.1978) (per curiam) (where civil rights plaintiff sought expunction of conviction obtained without due process, we noted that “ ‘federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights.’ ”) (citation omitted). We assume for purposes of our decision that district courts have the same power over federal convictions. See, e.g., United States v. Sweeney, 914 F.2d 1260, 1264 (9th Cir.1990) (assuming, without deciding, that inherent expunction power over federal convictions exists); United States v. G., 774 F.2d 1392, 1394 (9th Cir.1985) (same).

Courts which have recognized an equitable power to expunge have unanimously observed that it is a narrow power, appropriately used only in extreme circumstances. See, e.g., Geary v. United States, 901 F.2d 679 (8th Cir.1990) (a federal court may exercise its inherent equitable powers to order expungement only where the case presents “extraordinary circumstances”); United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988) (recognizing “ ‘narrow’ power to order expunction”); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984) (acquittee seeking expunction was not entitled to it absent “exceptional circumstances”); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978) (expungement granted only in “extreme circumstances”); Menard v. Saxbe, 498 F.2d 1017, 1021 (D.C.Cir.1974) (“expungement ... exists to vindicate substantial rights”).

In this case, we are presented with none of the recognized circumstances supporting expunction. There is no suggestion that Smith’s arrest or conviction was in any way unlawful or invalid, or that the government engaged in any sort of misconduct. Nor are we presented with any other factor which could outweigh the government’s interest in maintaining criminal records. The harms alleged by Smith and noted by the district court, including disbarment and a possible prohibition against reenlistment, are not unusual or unwarranted. Instead, they are the natural and intended collateral consequences of having been convicted. Were we to deem them 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. Therefore, we must vacate the order of expunction.

ORDER VACATED.

1

. The government notes that Smith never showed he was prohibited from reenlistment because of his prior convictions. Indeed, it contends that in all likelihood Smith would have been allowed to reenlist without any ex-punction.