Doe v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 26, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID P. TOKOPH,
Petitioner - Appellant,
v. No. 13-2128
(D.C. No. 1:12-MC-00035-MV)
UNITED STATES OF AMERICA, (D. N.M.)
Respondent - Appellee.
_________________________________
ORDER
_________________________________
Before GORSUCH, SENTELLE, and MURPHY, Circuit Judges.
_________________________________
Appellant’s petition for panel rehearing is granted for the limited purpose of
correcting an incorrect statutory citation on page 6 of the court’s published opinion. A
corrected version of the opinion is attached to this order. In all other respects, appellant’s
petition for panel rehearing is denied.
The petition for rehearing en banc was transmitted to all of the judges of the court
who are in regular active service. As no member of the panel and no judge in regular

The Honorable David B. Sentelle, Senior Circuit Judge, United States Court of Appeals
for the District of Columbia Circuit, sitting by designation.
active service on the court requested that the court be polled, that petition is also denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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FILED
United States Court of Appeals
Tenth Circuit
December 23, 2014
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DAVID P. TOKOPH,
Petitioner - Appellant,
v. No. 13-2128
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:12-MC-00035-MV)
Marc M. Lowry (Evan P. Woodward, with him on the briefs), Rothstein, Donatelli,
Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, New Mexico, for
Petitioner-Appellant.
Fred J. Federici, Assistant United States Attorney (Steven C. Yarbrough, Acting United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Respondent-
Appellee.
Before GORSUCH, SENTELLE,* and MURPHY, Circuit Judges.
SENTELLE, Circuit Judge.
*
The Honorable David B. Sentelle, Senior Circuit Judge, United States Court of
Appeals for the District of Columbia Circuit, sitting by designation.
In 1974, appellant David Tokoph, then-defendant in a criminal action in the
District of New Mexico, was sentenced under 18 U.S.C. § 5021, the Federal Youth
Corrections Act (repealed in 1984). In 2012, Tokoph filed a motion to seal and expunge
records of that conviction. The district court concluded that it had no jurisdiction to grant
the relief prayed in the motion and dismissed. For the reasons set forth below, we agree
and affirm.
BACKGROUND
In 1972, at the age of 21, appellant Tokoph engaged in a series of fraudulent loan
transactions resulting in a multi-count indictment on which he was convicted in 1973.
The details of his offenses are not pertinent to the present appeal, but are available at
United States v. Tokoph, 514 F.2d 597 (10th Cir. 1975). The district court in New
Mexico, in light of his age, entered sentence pursuant to the Federal Youth Corrections
Act (“FYCA”), 18 U.S.C. § 5021. We note that the Act was repealed in 1984, but at the
time of Tokoph’s sentencing, it provided that where a “youth offender” as defined in the
statute “has been placed on probation” and met certain statutory criteria, “the court
may . . . in its discretion, unconditionally discharge the offender.” 18 U.S.C. § 5021(b).
Such a discharge “shall automatically set aside the conviction, and the court shall issue to
the youth offender a certificate to that effect.” Id.Thus the case proceeded. That is, Tokoph received a probationary sentence under
the FYCA. In 1982, he was unconditionally discharged, the sentence was set aside, and
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the court issued him a certificate to that effect. Thus stood the relationship between
Tokoph and his history for approximately the next thirty years. Tokoph then filed in the
District of New Mexico a “motion to seal and expunge records of conviction under
Federal Youth Corrections Act pursuant to 18 U.S.C. § 5021.” The United States
opposed. The district court received briefing on the motion, considered the authorities
and the arguments of the parties, and concluded that under governing precedent of this
circuit, the FYCA did not provide any statutory authority to order expungement. After
considering appellant’s alternate theory that expungement could be ordered under the
inherent equitable powers of the court, the court determined that it had no authority under
that theory to grant the relief prayed and denied the motion. Tokoph brought the present
appeal.
ANALYSIS
On appeal Tokoph contends that the district judge misinterpreted and misapplied
the law of the Tenth Circuit. He contends that two decisions of this circuit, United States
v. Bronson, 449 F.2d 302 (10th Cir. 1971), and Watts v. Haddon, 651 F.2d 1354 (10th
Cir. 1981), support his view that 18 U.S.C. § 1521 provides for expungement of criminal
records of youth offenders whose convictions have been “set aside” under the statute.
However, the district judge correctly concluded that neither of those cases so holds.
In Bronson, as the district court noted, “the sole issue before the Court was
whether a magistrate judge had misinformed the defendant as to the consequences of a
sentence under the FYCA by suggesting that a defendant held for the entire term of his
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sentence would be eligible to have his conviction set aside.” United States v. Tokoph, No.
13-35, slip op. at 3 (D. N.M. June 24, 2013) (sealed). The Bronson court concluded that
the magistrate judge’s statement of the law was incorrect, but “not of sufficient gravity to
justify invalidating the plea.” 449 F.2d at 305.
In Watts, as the district court again correctly observed, “the Tenth Circuit decided
whether persons sentenced under the FYCA were being held unlawfully because the
Bureau of Prisons and the United States Parole Commission had failed to follow the
requirements of the FYCA.” Tokoph, No. 13-35, slip op. at 3. In a section of the Watts
opinion not determinative of the issue before the court, but providing background
information on the statute, this court in a footnote cited Bronson as having “recognized,
by implication, that such ‘setting aside’ of the conviction means that the conviction will
be expunged from the defendant’s records.” 651 F.2d at 1373 n.3. This observation by
the Watts court in no way affected the court’s determination.
It is true, as appellant contends, that in these two opinions this court has at least
implied the view advanced by appellant, that is, that the “set aside” provision of the
FYCA empowers the courts to effect expungement of the conviction, as well as certifying
to its having been set aside. However, as the district court understood, the cases do not
state binding precedent. “[A] panel of this court is bound by a holding of a prior panel of
this court but is not bound by a prior panel’s dicta.” Bates v. Dep’t of Correction, 81 F.3d
1008, 1011 (10th Cir. 1996) (emphasis added). As we have also stated, “dicta are
statements and comments in an opinion concerning some rule of law or legal proposition
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not necessarily involved nor essential to determination of the case in hand.” United
States v. Villareal-Ortiz, 553 F.3d 1326, 1328 n.3 (10th Cir. 2009) (citing Rohrbaugh v.
Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995)).
To reiterate the message of the Bates decision, we are bound by holdings, not
dicta. Each of the two decisions relied upon by appellant provide dicta, not holdings.
The expungement question was not germane to the issue before either the Bronson or
Watts court, and neither decision rested upon it. The greater problem for appellant, as
recognized by the district court, is not only that the cases upon which he relied presented
dicta, but that we have in a later decision entered a holding adverse to appellant’s
position.
In United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995), we actually considered
and determined whether a conviction that has been “set aside” under the FYCA has been
“expunged.” The Wacker case presented the case in a different context, but it required
the same analysis of the same statute as the present appeal. In Wacker, a defendant
contended that the district court calculating a defendant’s criminal history for purposes of
sentencing under the United States Sentencing Guidelines improperly included a prior
conviction that had been set aside under the FYCA. We accepted the distinction drawn
by the Sentencing Commission between convictions that are “set aside” and those that are
“expunged.” That is, while “expunged convictions are not counted” in the computation
of criminal history, previous convictions that have been “set aside . . . for reasons
unrelated to innocence or errors of law,” are counted. 72 F.3d at 1479 (quoting U.S.S.G.
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§ 4A1.2, comment n.10).
In accepting the distinction drawn by the Sentencing Commission, we reiterated a
definition of “expunge” previously adopted by this court in a different context: “The word
expunge generally means the physical destruction of information.” United States v.
Johnson, 941 F.2d 1102, 1111 (10th Cir. 1991). As did the Wacker court, we consider a
context in which Congress, in the FYCA, has authorized the court to “set aside” a
conviction, not one where Congress has authorized us to expunge it.
Before finally determining that the district court correctly construed binding
precedent, we note that appellant further argues that “the Supreme Court of the United
States has indicated that 18 U.S.C. § 5021 provides authority to seal records.”
Appellant’s Br. 15. In support of this proposition, appellant offers Tuten v. United States,
460 U.S. 660 (1983), and Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983).
Examination of these decisions confirms what is candidly suggested by appellant’s
phrasing: The two decisions at most “indicated” appellant’s asserted proposition, they did
not hold it. It is true that “[f]ederal courts are bound by the Supreme Court’s considered
dicta almost as firmly as by the Court’s outright holdings . . . .” Pittsburgh and Midway
Coal Min. Co. v. Watchman, 52 F.3d 1531, 1540 n.10 (10th Cir. 1995) (internal
quotations and citations omitted) (abrogated on other grounds). Even affording no force
to the words “almost as firmly” in that formulation, upon examination of the precedents
offered by appellant, we conclude that they do not bind us to the interpretation he offers.
First, as observed above, the Wacker case states binding holding. The Wacker case is
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more recent than the Supreme Court, and although from this court, as opposed to the
Supreme Court, it is a binding holding offered subsequent to the Supreme Court’s dicta.
Second, the “dicta” do not appear to be of the considered sort that would compel us to
reach the suggested conclusion.
The Tuten Court considered whether a conviction under the FYCA was
automatically set aside at the conclusion of probation. It concluded that this was not the
case. While recognizing that Congress intended to permit the successful FYCA
probationer who met the statutory requirements to avoid numerous disabilities resulting
from a conviction, it never actually considered whether this was equivalent to or even
similar to expungement. The only use of the word “expungement” by the Tuten Court
was to compare the advantage gained by successful completion of FYCA probation and
the setting aside of the conviction to the results from “various state expungement
statutes.” 460 U.S. at 664–65. Nothing in Tuten evidences that the Supreme Court
considered and concluded that “setting aside” is fully equivalent to “expungement.”
The Dickerson Court considered whether a firearms dealer could escape revocation
of its license on the ground that one of its officers had been convicted of a felony when
the conviction had been expunged under a state procedure. The Court held that the
disabilities imposed by the Gun Control Act of 1968, 18 U.S.C. § 922, were not removed
by that expungement of a defendant’s record. Before us, appellant relies on a sentence
fragment from the Dickerson opinion that “Congress itself provided for expunction in
certain circumstances, see 18 U.S.C. § 5021.” 460 U.S. at 118. While those words taken
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out of context are consistent with appellant’s view, they are not a holding, and do not in
fact reflect the sort of considered dicta that we would find almost as binding as a holding.
In the next paragraph, the Dickerson Court stated, with reference to the firearms
disabilities, “Congress obviously knew the plain meaning of the terms it employed in
statutes of this kind, and when it wished to create an exception for an expunged
conviction, it did so expressly.” Id. That sentence obviously is also dicta, but it weighs
against the position offered by appellant. Applying that dicta leads to the conclusion that
if Congress had wished to empower the court to “expunge” as opposed to “set aside,” it
would have said so. In any event, weighing the dicta favorable to appellant against that
unfavorable to his position, we find nothing that empowers this court to override the
precedent from Wacker.
The rest of appellant’s argument consists largely of ambiguous legislative history.
The government counters with other interpretations of the same history and with the fact
that a majority of circuits are in agreement with Wacker. None of this changes our
conclusion. Wacker controls. The FYCA empowers the court to “set aside” convictions
and furnish the defendant with a certificate to that effect. This is beneficial to the
defendant as it absolves him of some consequence of the prior conviction. It does not
expunge it.
As we have concluded that Congress in the FYCA did not grant the district court
jurisdiction to grant the relief prayed, that is, expungement of the conviction, Tokoph is
out of court unless he can demonstrate some other ground of jurisdiction. In United
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States v. Pinto, 1 F.3d 1069 (10th Cir. 1993), as in the present case, we concluded that
there was no statutory grant of jurisdiction to the district court to order expungement of a
criminal conviction, and stated specifically, where there is “no statutory authority for the
district court’s expunction order . . . any authority to order expungement must stem from
the inherent equitable powers of the court.” Id. at 1070 (internal quotations and citations
omitted). Relying on the language of Pinto, appellant asserts that the district court had
jurisdiction to order the relief prayed in the present case under the theory of inherent
equitable power. We begin with the observation that “[f]ederal courts are courts of
limited jurisdiction, possessing only that power authorized by Constitution and statute.”
Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944, 946 (10th
Cir. 2014) (internal quotation marks and citations omitted). When no statutory or
constitutional provision is cited to support the jurisdiction of a federal court, a theory that
such court has inherent authority over the proposed action is generally a weak reed.
In this case, appellant’s reliance on Pinto illustrates just how weak is his support
for the theory of inherent equitable jurisdiction. In Pinto, as in the present action, we
considered the prayer of a litigant for expungement of a criminal conviction. 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)). We did acknowledge that some “case law does support
the notion that when a conviction is somehow invalidated, such as by a finding that it was
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unconstitutional, illegal, or obtained through government misconduct, a federal court
may, in appropriate cases, grant expungement.” Id. at 1070. In Pinto we observed that
there was no allegation that the defendant’s conviction was “in any way improper.” Id.
We noted that her prayer for relief was based on the theory that she had “been punished
enough, and that the presence of the conviction is unjustly interfering with her efforts to
rebuild her life.” Id. We held that “[a]bsent an allegation that the conviction was
somehow invalid, Defendant’s arguments that she had been punished enough are simply
insufficient as a matter of law.” Id.
Granted, Tokoph relies on the FYCA, not considered in Pinto, but now that we
have ruled that it is unavailable as a jurisdictional grant of authority to expunge a
conviction, he stands in exactly the same shoes as the convicted party in Pinto. It is
clearly illustrative of just how weak is the reed of inherent equitable authority that
Tokoph must resort to relying on a case that ruled against a claimant on exactly the same
theory he advances. We follow Pinto. There is no applicable inherent equitable authority
to grant expunction of a valid conviction.
We therefore affirm the decision of the district court that the FYCA does not
empower courts to expunge convictions, and that there is no inherent equitable authority
to grant the relief prayed in this case. We note that proceedings below were sealed at the
request of appellant, who at the time still believed in the propriety of sealing his
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conviction record. Having determined that he is entitled to no such relief, we further
determine that there is no basis for sealing the record in this case and order it unsealed.1
So ordered.
1
Appellant’s motion to expand the record on appeal is denied.
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