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This case

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The question before the court and the question I believe that district court didn't really have sufficient guidance, if I may say it that way, is whether Mr. Grupo presented sufficient facts

[00:02:19] Speaker 01:
And although I know you couch it in terms of unfair and it really prejudices your client, technically you are seeking equitable relief.

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at page 796 of Chrome.

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The court stated, once a petitioner has succeeded in getting her conviction vacated, and remember, Chrome was arguing that her underlying conviction was unlawful, which is not what we're doing here.

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And I proceed.

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is verifying that the conviction was unlawful.

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And that's why I selected a quote from Smith for our reply brief, because this court in Smith used three things, three concepts, three bases, unlawful conviction, unlawful search or conduct by the police officers, or unusual circumstances.

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The problem that we're having in the Ninth Circuit is that there's a tension within the circuit created by Sumner.

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And the reality is,

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Smith and this is why we selected a quote

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I just want to get this out and then you can stay out of your way.

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The problem is if anything – and you're right, we have not sort of laid out the same test precisely and repeated it throughout our case law.

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But I read this case law as narrowing the circumstances, consistently narrowing the circumstances when expungement is possible, and that all of them require – and that we are obligated to require that your client have shown that his conviction was unlawful in the first instance as a threshold.

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But, so that's my, that's where I'm at.

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I don't want to take up all your time, and I think Judge Katzman's trying to actually pass the question.

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Yes, sir.

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I don't want to get in your hair either.

[00:06:02] Speaker 04:
That's okay.

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But I just wanted to follow up on the questions regarding Sumner and Crowell.

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You appear to be saying that the holdings in those cases should be revisited or overturned.

[00:06:24] Speaker 04:
clarify yes absolutely so uh... to what extent is this a matter for non-bond court as opposed to a panel of three judges

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by the government, where even

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instance said, no, listen, you've got to vacate your conviction or show some illegal surgeons issued by the police officers.

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Absent that, then you have to have extraordinary circumstances.

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But before you get to extraordinary circumstances, and this is what this court has not said, absent racial matter to get through to us listening to you.

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You have to show you are a lie conviction is unlawful.

[00:08:14] Speaker 00:
It sounds like you do think that we need to take this on bonk.

[00:08:17] Speaker 00:
In fact, to Judge Katzman's question, that's what you're really asking.

[00:08:20] Speaker 03:
Yes.

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federal area is the only one that only

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the en banc issue, but you also seem to say that there could be clarification.

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the IRS action is redressable.

[00:10:07] Speaker 04:
It seems that your client has already settled with the IRS.

[00:10:15] Speaker 03:
Let me address that directly.

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The government makes hay so that the district court – well, you didn't have

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The IRS relied specifically on the plea agreement in this case.

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You cannot get any more direct second.

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Second, that IRS action happened more than three years after the conviction was final.

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So we were out of luck for 2255 and everything else.

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So there was no other way to redress it.

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And although this is not on the record, and counsel

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of the IRS and they told us hold to go pound sand.

[00:11:03] Speaker 03:
Now that's not part of the record as an officer of the court I can tell you because I was trial counsel.

[00:11:08] Speaker 03:
I can tell you that's a fact.

[00:11:10] Speaker 00:
So you're over your time I'm going to cut you off there.

[00:11:12] Speaker 00:
That's okay.

[00:11:13] Speaker 00:
When you come back for rebuttal we'll put two minutes on the clock.

[00:11:34] Speaker 02:
I would point to the latter half of that

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district court lacks jurisdiction, ancillary jurisdiction, to consider the motion to expunge.

[00:12:06] Speaker 02:
That's exactly the situation we have here.

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The underlying conviction not only has not been set aside, it's concededly valid, and so there is no ancillary jurisdiction for the district court, eight years after the conviction, to then enter an order telling the IRS or anyone else what it can or can't do, and secondary to that

[00:12:41] Speaker 02:
in the original criminal case.

[00:12:44] Speaker 02:
I'm certainly happy to answer your questions if the court has any, but I don't want to take up extra time.

[00:12:49] Speaker 04:
I'd like to ask you a question about your understanding of ancillary jurisdiction.

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Yes.

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And in light of Sumner and Crowell, they say that the district court, or do you interpret those cases to say that ancillary jurisdiction

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a judgment for an unlawful conviction, or a clerical error.

[00:13:20] Speaker 04:
Are there other circumstances?

[00:13:24] Speaker 04:
Looking at the Kokonen case, the Supreme Court case, extremely rare, perhaps, where a district court's expungement would further the goal of answering a jurisdiction to effectuate decrees.

[00:13:59] Speaker 02:
vacate, if that makes sense.

[00:14:00] Speaker 02:
So in that situation, ancillary jurisdiction, I think, would apply and crowd collect some of those cases.

[00:14:06] Speaker 02:
But once there's a conviction, then I think that's where that threshold kicks in and becomes a bright line.

[00:14:12] Speaker 04:
And just to return for a moment to your analysis of Smith, which since forth

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Two, government misconduct.

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And three, another factor outweighing the government's interest in maintaining criminal records.

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And I just want to be clear on your position.

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Sumner and Crowell clearly affirm the first circumstance.

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What is your position on that?

[00:15:12] Speaker 02:
What do they comment, Donnie, the latter two set forth in Smith?

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example, misconduct could, government misconduct could perform a basis of a motion to expunge.

[00:15:54] Speaker 02:
I think that's true insofar as a misconduct would lead to vacating a conviction.

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So if there was misconduct, a structural error, or otherwise undoes the conviction, that's consistent with Smith, Sumner, and Krell.

[00:16:06] Speaker 02:
But beyond that, that doctrine does not appear to survive Koken and Sumner and Krell.

[00:16:26] Speaker 00:
Okay, go right ahead.

[00:16:28] Speaker 03:
My brother from a different father is right in one respect.

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We have a confusion even within this circuit.

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It's undoubtedly the case.

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We have Smith, we have Sumner, and then we have Crowe.

[00:16:42] Speaker 03:
So let me read from Smith.

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At 396, I think this addresses our question.

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There is no suggestion in Smith that Smith's arrest or conviction

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was in any way unlawful or invalid.

[00:16:58] Speaker 03:
They shouldn't stop there.

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This panel, they didn't.

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They said, or that the government engage in a sort of misconduct.

[00:17:07] Speaker 03:
So this is directly from Smith.

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There's confusion within and Kokomen doesn't help us.

[00:17:13] Speaker 03:
That was a civil case where a judge in New York was asked to enforce a contract.

[00:17:18] Speaker 03:
But in that case, what we have is unfortunately my typo in my opening brief that PDF insisted on correcting the decrees of a court.

[00:17:27] Speaker 03:
The decrees of a court is what