Can You Expunge a Federal Charge in Florida?

Expungement of a criminal record means the record is erased, deleted, or destroyed so that it is no longer accessible to the public. The existence and availability of criminal records can mean that someone’s mistake made years earlier can haunt them throughout the rest of their life. Expunging the record of someone’s criminal prosecution in either federal or state court requires a lawyer to have extensive knowledge and experience regarding which offenses are eligible for expungement and how to proceed under the particular circumstances of each case.  


In Tampa and St. Petersburg, Florida area, the law firm of Stechschulte Nell understands that expunging records of a criminal charge brought against you can be pivotal to the direction of your personal and public life. We discuss what records related to federal criminal charges may be expungable and what the law says about the limits of the court’s power to erase your records. 



The Difference Between Federal Expungement and Florida State Expungement 


If you were accused of committing a federal crime, the records of your arrest, the specific charges, court docket sheets, and most documents filed during the proceedings are public records, easily accessible to potential employers, creditors, landlords, and others. In Florida, the 1995 Online Sunshine Act made records of state arrests and convictions easily accessed through the Florida Department of Law Enforcement’s website.  


Under Florida state law, expunging or sealing records of state criminal arrests or prosecutions is governed by a specific statute (F.S. 943.0585) that lays out in detail what records are eligible for expungement and under what circumstances.   


Federal Youthful Offender Expungement 


Congress has authorized expungement for some young people found guilty of simple possession of small amounts of a controlled substance if, 

  • they were under age 21 when the offense was committed, 
  • they have no prior convictions for any state or federal drug offense, 
  • they have not previously had an expungement under § 21 U.S.C. 844 and 18 U.S.C. 3607(c), 
  • They complete their one-year pre-judgment probation without violation 


If the young offender meets these conditions, the court will dismiss the case before the judgment of conviction enters. Then the public records of the case can be expunged. The federal court does not expunge non-public court records. Those records are maintained to prevent the person from later seeking the same disposition in a future case. The expungement order frees the defendant to deny any arrest or prosecution that occurred without being accused of fear of perjury or misrepresentation. 


However, the federal law has no broadly corresponding federal statute authorizing any federal court to expunge other federal criminal records. Without a federal statute, federal judges have had to rely on their own understanding of the own court’s power when it comes to the question of expungement of records. 


NOTE: In February 2022, a Tennessee Congressman reintroduced a bill called the “Fresh Start Act” (FSA) in the U.S. House of Representatives. A similar bill was considered last year but was not acted upon. The proposed FSA would permit people convicted of non-violent federal offenses to petition for expungement of the records. 


Federal Courts May Exercise “Inherent Ancillary Authority” for Expungements 


Some federal courts have ruled that they do have the power to order records expunged in certain circumstances. For example, “records where an arrest or conviction is found to be invalid or a clerical error is made”i have been expunged on grounds of fairness, even without statutory authority. 


Federal courts have recognized that their obligation to act “in the interests of justice” requires them, or at least permits them, to expunge records relating to federal criminal charges filed against a defendant in error, or that were or otherwise wrongly prosecuted.  


However, the likelihood of any federal court expunging records of a still-standing federal criminal conviction is virtually nil.  


The view among federal judges that their power to expunge some records of federal criminal prosecutions is not universally shared and is limited only to cases in which the conviction either was never obtained or was later vacated. 


Different Courts — Different Results 


In 1989, the United States District Court for the Southern District of Florida granted an acquitted defendant’s motion to expunge the records of his federal arrest, and failed prosecution and declared that “United States Attorney has made a federal case out of a barroom brawl.”ii The government brought the case in federal court because a Coast Guard member was assaulted. Ruling that there was no evidence whatsoever that the defendant had assaulted the Coast Guardsman because of his U.S.C.G. membership, the judge dismissed the case. Chief Judge Lawrence King then ruled that, 


“Expungement lies within the equitable discretion of the district court and relief is granted only in extreme circumstances. See United States v. Rosen, 343 F. Supp. 804, 807 (S.D.N.Y. 1972); see also United States v. Schnitzer, 567 F.2d 536, 539 (1977). “In determining whether such circumstances exist, courts have considered the `delicate balancing of the equities between the right of privacy of the individual and the right of law enforcement officials to perform necessary duties.'” Schnitzer, 567 F.2d 539 (citing United States v. Rosen,  343 F. Supp. 804, 806 (S.D.N.Y. 1972)); see also Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir. 1977).” 

                                          U.S. v. Johnson, 714 F. Supp. 522, 523-524 (S.D. Fla. 1989) 


Judge Lawrence was convinced of the unfairness of the defendant being denied future employment or needing to carry the federal records with him when the case never should have been brought in the first place.  


Unfortunately, Florida is located within the Eleventh Circuit of the U.S. Court of Appeals, and it has never ruled one way or the other on the issue of the federal court’s authority to expunge criminal records based on a theory of “equity” or fairness. Federal District Courts in Florida and elsewhere in the Eleventh Circuit have denied motions to expunge federal criminal records, even when the defendant was acquitted because they refused to act without either statutory authority or precedent laid down by the Circuit Court. 


Avoid Permanent Federal Criminal Records  


The sad reality is that federal criminal records are currently not subject to expungement without an extraordinary judicial act by a U.S. District Court judge in Florida. The most unjust aspect of this reality is that even acquitted, or otherwise exonerated defendants are ineligible to expunge the records of their unsustained criminal prosecutions.  

At present, the best hope for any person who has been federally charged or who expects they may be charged by federal law enforcement in the future is to hire an aggressive, experienced federal criminal defense team to use every available resource to prevent a federal indictment. If the indictment is inevitable, then only the finest federal criminal defense practitioners should be trusted to protect your legal rights and to assert the most vigorous defense to the charges. 

Your federal criminal defense attorney needs to feel at home in federal court. That means years of experience and a mastery of the Federal Rules of Criminal Procedure are necessary.  

Contact Stechschulte Nell, Attorneys at Law for your federal criminal defense in Hillsborough and Pinellas Counties. We are committed to standing with you. Call us today at 813-280-1244.  


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