United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
the court is petitioner Anthony Vito's motion to seal
records. ECF No. 27. The United States filed a response (ECF
No. 30), but Vito failed to reply. The court will deny this
motion because the Ninth Circuit Court of Appeals has
expressly held that U.S. District Courts lack jurisdiction to
expunge (i.e., seal) a record of conviction based solely on
equitable considerations such as improved employment
2000, Vito pled guilty to one count of conspiracy to commit
an offense against the United States under 18 U.S.C. §
371. ECF No. 27 at 4. This conviction stemmed from a scheme
in which Vito falsely reported his vehicle stolen, when in
reality he had given the vehicle to members of organized
crime in order to profit from the insurance proceeds.
Id. at 6. Another court within this district
sentenced Vito to three years of probation, along with
community service and restitution, all of which he
now moves for this court to seal his record of conviction in
this matter, attesting that his conviction prevents him from
working in the casino industry, where he previously worked
for over 20 years. ECF No. 27-1 at 1. He also more generally
asserts that he seeks this relief so that he “will no
longer be plagued with a felony on [his] record.”
Id. at 2.
onset, the court notes that, based on the parties'
briefings, there appears to be confusion as to what relief
Vito is seeking. His petition solely refers to Nevada's
statutory scheme for “sealing” a record of
conviction. See Nev. Rev. Stat. § 179.245
(“Except as otherwise provided . . . a person may
petition the court in which the person was convicted for the
sealing of all records relating to a conviction . . .
.”); see also id. § 179.275, .285. These
statutes are inapplicable to the instant case, as Vito was
convicted of a federal crime before a federal court.
Conversely, the United States responds in opposition by
citing the standard for filing a document under seal.
See ECF No. 30 at 1 (citing Kamakana v. City
& Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006)).
Nonetheless, the United States also asserts that Vito
“mistakes the idea of sealing a record perhaps with
that of expunging it . . . .” Id. at 2.
confusion is understandable, as the term “seal”
has more than one legal application and varies in use across
jurisdictions. State and federal jurisdictions use the term
in the context of filing documents in an active case
“under seal” (i.e., making these documents
inaccessible to the public). See Kamakana, 447 F.3d
at 1176. However, the Nevada statutes that Vito's
petition references appear to also use the term in a manner
that is synonymous with what federal courts refer to as
“expungement, ” which is a request for a court to
“destroy or seal the records of the fact of the
defendant's conviction . . . .” United States
v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004). The court
will therefore interpret the petition as a motion to expunge
his record of conviction.
the court lacks jurisdiction to address this motion and must
therefore deny it. In United States v. Sumner, the
Ninth Circuit joined many of its sister circuits in holding
that, although federal courts do “possess ancillary
jurisdiction to expunge criminal records[, ]” that
“jurisdiction is limited to expunging the record of an
unlawful arrest or conviction, or to correcting a clerical
error.” 226 F.3d 1005, 1014 (9th Cir. 2000). The court
specifically held that this authority does not
extend to expunging “a record of a valid arrest and
conviction solely for equitable considerations. . . . such as
to reward a defendant's rehabilitation and commendable
post-conviction conduct” or “to enhance a
defendant's employment opportunities.” Id.
This conclusion stems from the principle that federal courts
are courts of limited jurisdiction, and thus, in order
“to have subject matter jurisdiction to hear an
independent action[, ] there must be some statutory or
constitutional basis for [such] jurisdiction.”
Id. at 1010 (quoting In re Hunter, 66 F.3d
1002, 1005 (9th Cir. 1995)).
basis exists in this case, where Vito, like the petitioner in
Sumner, is requesting relief based solely on the
equitable considerations of his post-conviction conduct and
the employment consequences of a felony conviction. See
United States v. Brooks-Hamilton, No. 05-CR-00631-SI-1,
2015 WL 5680907 (N.D. Cal. Sept. 28, 2015) (arriving at the
same conclusion in a similar motion to expunge a record of
conviction). The court commends Vito on becoming a licensed
real-estate agent after his conviction and for being active
in volunteer work with his church, but the court lacks the
authority to grant him his requested relief. His motion will
therefore be denied.
THEREFORE ORDERED that petitioner Anthony Vito's motion
to seal records (ECF No. 27) is DENIED.