Professional Documents
Culture Documents
United States v. Gregory Paul Noonan, 906 F.2d 952, 3rd Cir. (1990)
United States v. Gregory Paul Noonan, 906 F.2d 952, 3rd Cir. (1990)
United States v. Gregory Paul Noonan, 906 F.2d 952, 3rd Cir. (1990)
2d 952
Jurisdiction was proper in the trial court based on 18 U.S.C. Sec. 3231.
Jurisdiction on appeal is proper based on 28 U.S.C. Sec. 1291. The appeal was
timely filed under Rule 4(b) F.R.A.P.
I.
Article II, Sec. 2 of the Constitution provides in part: "[The President] shall
have Power to grant Reprieves and Pardons for Offenses against the United
States, except in Cases of Impeachment."
On January 21, 1977, President Carter issued Proclamation 4483, which states
in relevant part:
II.
6
In 1969, Gregory Paul Noonan was convicted and sentenced to three years
imprisonment for failure to submit for induction in 1968, a violation of the
Military Selective Service Act. Upon appeal, this court affirmed the conviction
in a published opinion, United States v. Noonan, 434 F.2d 582 (3d Cir.1970)
(Aldisert, J.), cert. denied, 401 U.S. 981, 91 S.Ct. 1190, 28 L.Ed.2d 333 (1971).
Noonan sought two forms of relief. In the motion itself, Noonan expressed the
belief that expunction of his record "would enable him to answer in the
negative any questions relating to whether or not he has ever been arrested
and/or convicted." App. at 6. In his prayer for relief, he requested that the
district court order that he "may, as all others must, consider the criminal
indictment expunged as if it had never occurred." Id. at 7. Noonan also
requested that all records relating to his arrest and conviction be delivered to
the Clerk of the United States District Court for the Western District of
Pennsylvania and that the Clerk be directed to impound and seal the records. Id.
9
10
Although employed in the automotive parts business for thirteen years, he also
said that "it's a business where there's an awful lot of turnover, and more than
likely in the next several years I will probably be looking again." Id. at 93.
Noonan stated that, in the past, when he had been required to disclose his
conviction record on an application form, he had been abruptly rejected for the
position.
11
12
13
Dr. Urrea testified that he began treating Noonan on April 15, 1988. He at first
diagnosed Noonan as suffering "in the foreground from a generalized anxiety
disorder, and ... in the background ... from a personality disorder." Id. at 40.
Later, Dr. Urrea "decided that he's not just a compulsive personality disorder
but a group of personality disorders in one." Id.
14
According to Dr. Urrea, there are two circumstances which have aggravated
Noonan's conditions: his family history and "the issue with the military." Id. at
43. With respect to the family history, Dr. Urrea pointed out that Noonan's
father also suffers from depression, an anxiety disorder and obsessional traits
and noted that Noonan's grandmother committed suicide.
15
With respect to the "issue with the military," Dr. Urrea testified:
Mr.
16 Noonan has been a social outcast ever since he refused to be inducted into the
army, into the service, and that has created a significant negative image on him.
17 self-esteem is very poor. He's not able to--he has not been able to consistently
His
hold onto a job. He has medical problems. He drinks a lot. He has had intermittent
thoughts of suicide. He's just a very unhappy man, and the very first thing that he
worries about when he's going to look for a job, when he's going to undertake
something, is the fact that he will have to disclose his criminal record.
18
Id. at 43-44.
19
Dr. Urrea advised him to confer with a lawyer about the possibility of clearing
his record. On cross-examination, Dr. Urrea described Noonan's family history
as the "biological background" of his problems, and the "problem with the U.S.
Government [as] the trigger factor." Id. at 57.
20
21
The district court issued its opinion denying the government's motion for
reconsideration on December 5, 1989. Relying upon Ex Parte Garland, 71 U.S.
(4 Wall.) 333, 374, 18 L.Ed. 366 (1866), it held that the Presidential pardon
entitled Noonan to expunction of his criminal record because the pardon " 'blots
out of existence the guilt' of Gregory Paul Noonan." App. at 27.
III.
22
The government argues that the district court lacked the power to expunge the
criminal record on the basis of the pardon. Alternatively, the government
argues that this particular case is not one warranting expunction. Subsumed in
its contention is the notion that the President has the power, as head of the
executive branch, to order, explicitly or implicitly, expunction of a criminal
record.
23
IV.
24
25
[Counsel
for the Crown] reminded us that constitutionally the Crown no longer has a
prerogative of justice, but only a prerogative of mercy. It cannot, therefore, he
submits, remove a conviction but only pardon its effects. The Court of Appeal
(Criminal Division) is the only body which has statutory power to quash a
conviction. With that we entirely agree.
26
R. v. Foster, supra, at 130. Likewise, in the context of our tradition, our law,
and our constitutional doctrine--be it state or federal--the executive branch has
never possessed "a prerogative of justice." That has always been the exclusive
province of the Third Branch of government, the judiciary.
27
28
29
30
Bracton wrote about the power of the executive to pardon in the middle of the
thirteenth century. He reasoned of the King's power that:
31 king ... may give what is his own, that is his protection, which the outlawed
[T]he
person has lost through his flight and contumacy, but that which is another's he
cannot give by his own grace.
32
Bracton, vol. 2, p. 371 (Twiss trans.) (quoted in Williston, Does a Pardon Block
Out Guilt?, 28 Harv.L.Rev. 647, 649 (1915)).
33
34
35
Our inquiry could properly stop at this point, but because the power of the
President to order expunction was not precisely presented by briefs or oral
argument and because this is a case of first impression, we will address the
substantive question whether restoring "full political, civil and other rights"
may entitle the pardoned person to expunction of a criminal record on other
grounds. For the reasons that follow, we conclude that no such entitlement
exists because the grant of a pardon does not wipe out the record of a
conviction.
V.
36
37
38
39
But these are all instances in which a court invoked its inherent power to
remedy an acquittal, an unconstitutional conviction or an abuse of power.
Noonan's conviction does not fit within these perimeters.
40
41
It bears repetition that in none of these recorded cases has expunction been
ordered (1) where the circumstances of conviction have not been challenged, or
(2) on the basis of a pardon following an unchallenged or otherwise valid
conviction.
VI.
42
In substantially all of the foregoing cases, the courts employed a balancing test
in which the harm to the individual caused by the continued existence of the
records is weighed against the governmental interest in maintenance of the
records. Paton v. La Prade, 524 F.2d 862, 868 (3d Cir.1975); Diamond v.
United States, 649 F.2d 496, 499 (7th Cir.1981); Linn, supra, National Treasury
Employees Union v. I.R.S., 601 F.Supp. 1268, 1273 (D.D.C.1985). In
exercising its discretion in this area, a district court is generally afforded a wide
range of latitude due to "its greater familiarity with the local scene and the
actuality of local public events." United States v. International Harvester Co.,
720 F.2d 418, 419 (5th Cir.1983), cert. denied, 466 U.S. 939, 104 S.Ct. 1915,
80 L.Ed.2d 463 (1984).
43
Such a test and standard of appellate review may be warranted and justified
where the predicate for the expunction is a challenge to the validity of either
the arrest or conviction. These circumstances are not present here because no
challenge to the conviction itself is made. In this case, the district court was
We are requested to construe both the text of the pardon power in Art. II, Sec. 2
and the language of the January 21, 1977 pardon to determine the legal effect of
Proclamation 4483. Because this is a matter of law, the standard of review is
plenary. Dent v. Cunningham, 786 F.2d 173 (3d Cir.1986); Universal Minerals,
Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981). It is to the
question of determining the effect of President Carter's pardon that we now
turn.
VII.
45
46
By 1915, however, the Court made clear that it was not accepting the Garland
dictum that a pardon "blots out of existence the guilt." In Burdick v. United
States, 236 U.S. 79, 35 S.Ct. 267, 59 L.Ed. 476 (1915), the Court reaffirmed its
reasoning in United States v. Wilson, 32 U.S. (7 Pet.) 150, 8 L.Ed. 640 (1833),
and concluded that there is a "confession of guilt implied in the acceptance of a
pardon." Burdick, 236 U.S. at 91, 35 S.Ct. at 269. The Court explained that "[a
pardon] carries an imputation of guilt; acceptance a confession of it." Id. at 94,
35 S.Ct. at 270. The idea that a pardon does not vitiate guilt was not merely
resurrected by the Court; it had been implied by other courts before Burdick.
The Supreme Court of New Jersey, in Cook v. Freeholders of Middlesex, 2
Dutch. (N.J.) 326, 331, 333 (1857), wrote:
47
Pardon
implies guilt. If there be no guilt, there is no ground for forgiveness. It is an
appeal to executive clemency. It is asked as a matter of favor to the guilty. It is
granted not of right but of grace. A party is acquitted on the ground of innocence; he
is pardoned through favor. And upon this very ground is that the pardoning power is
never vested in a judge.
48
More recently, distilling the teachings of Garland and Burdick, the Court of
A pardon does not "blot out guilt" nor does it restore the offender to a state of
innocence in the eye of the law as was suggested in Ex Parte Garland, 71 U.S.
(4 Wall.) 333, 380, 18 L.Ed. 366 (1866). See Burdick v. United States, 236
U.S. 79, 91, 35 S.Ct. 267, 59 L.Ed 476 (1915) (suggesting that, far from
blotting out guilt, the acceptance of a pardon may constitute a confession of
guilt). We accept the view of the effect of a pardon propounded by Professor
Williston in Does A Pardon Blot Out Guilt? 28 Harv.L.Rev. 647, 653 (1915):
50
The true line of distinction seems to be this: The pardon removes all legal
punishment for the offense. Therefore if the mere conviction involves certain
disqualifications which would not follow from the commission of the crime
without conviction, the pardon removes such disqualifications. On the other
hand, if character is a necessary qualification and the commission of a crime
would disqualify even though there had been no criminal prosecution for the
crime, the fact that the criminal has been convicted and pardoned does not
make him any more eligible.
51
Thus,
the fact of conviction after a pardon cannot be taken into account in
subsequent proceedings. However, the fact of the commission of the crime may be
considered. Therefore, although the effects of the commission of the offense linger
after a pardon, the effects of the conviction are all but wiped out.
52
Bjerkan v. United States, 529 F.2d 125, 128 n. 2 (7th Cir.1975). We agree
totally with this analysis.
53
54
It has been said that I should apply to the United States for a pardon, but
repentance must precede the right of pardon, and I have not repented.
Remembering, as I must, all which has been suffered, all which has been lost,
disappointed hopes and crushed aspirations, yet I deliberately say, if it were to
do over again, I would again do just as I did in 1861.
55
55
VIII.
56
57
The constitution gives to the president, in general terms, "the power to grant
reprieves and pardons for offences against the United States." As this power
had been exercised, from time immemorial, by the executive of that nation
whose language is our language, and to whose judicial institutions ours bear a
close resemblance; we adopt their principles respecting the operation and effect
of a pardon, and look into their books for the rules prescribing the manner in
which it is to be used by the person who would avail himself of it.
58
Wilson v. United States, 32 U.S. (7 Pet.) 150, 159-60, 8 L.Ed. 640 (1833). The
Burdick Court, 82 years later, reaffirmed this language, emphasizing that "[t]he
principles declared in Wilson v. United States have endured for years; no case
has reversed or modified them." 236 U.S. at 91, 35 S.Ct. at 269. Precedent for
such historical analysis established, we turn to the task at hand.
59
In examining the English cases we are first struck with the phenomenon that
even in modern-day Great Britain, there are few reported contemporary cases
on the issue we address here. Thus, in R. v. Foster, supra, at 126, the Court of
Appeal, Criminal Division, noted "that the effect of a full pardon on the
continuing existence of a conviction has not been considered by our courts for
very many years."
60
To the extent that old cases, very old, have been discussed, it seems clear that
by 1618 it was agreed that a pardon "affirms the verdict and dis-affirms it not as
the purgation doth. So that to take it for both is to imply contradictories." R. v.
Foster, supra, at 127 (citing Searle v. Williams (1618) Hob. 288, 293, 80 ER
433).
61
62
Many
of the extracts we have been shown from textbooks and articles, some of them
written centuries ago, tend to support the proposition that a pardon leaves the
existence of a conviction untouched. These extracts include the works of Bracton on
the Laws and Customs of England (1968 ed.) vol. 2, pp. 362-363, 369-370, 372, 378,
And the Judges informed the King, that no King after the Conquest assumed to
himself to give any judgment in any cause whatsoever, which concerned the
administration of justice within this realm, but these were solely determined in
the Courts of Justice ...
64
Statements
to the like effect appear in many of the works to which we have been
referred.
65
66
67
The gist of [the appellant's] contention is that a pardon wipes out the crime ab
initio. I have examined the passages in Hawkins' Pleas of the Crown to which
he referred and I think they do not go as far as he contends ... The authorities on
libel and slander in my opinion do not establish that a pardon wipes out the
crime ab initio. They are based on a special policy which the law has seen fit to
adopt in relation to defamatory words. Blackstone (vol. 4, p. 402) states the
effect of a pardon as follows: "4, Lastly, the effect of such pardon by the King,
is to make the offender a new man to acquit him of all corporal penalties and
forfeitures annexed to that offence for which he obtains his pardon and not so
much to restore his former, as to give him a new, credit and capacity." That
passage is entirely consistent with what Hawkins says. Accordingly, a pardon is
in no sense equivalent to an acquittal. It contains no notion that the man to
whom the pardon is extended never did in fact commit the crime, but merely
from the date of the pardon gives him a new credit and capacity.
68
69
In accepting the analysis of the early common law as well as modern New
R. v. Foster, supra, at 129; see also Thomas Case, supra, 1 NZLR 602.
IX.
72
73