United States v. Coloian: The Acquitted Defendant Whose Federal Record No Court Could Erase

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Clients who win their cases often ask when the record will disappear. For a Massachusetts case there is a real answer, with statutes and waiting periods and a petition to file. For a federal case the answer comes from a decision involving an acquitted Rhode Island attorney, under which no court in the First Circuit will even hear the request. The case is United States v. Coloian, 480 F.3d 47 (1st Cir. 2007).

Anyone weighing a federal charge, or comparing the consequences of state and federal charges, should know what the First Circuit held in Coloian. The full framework, including whether a Massachusetts court can order the FBI to change its copy of a state record, is on the firm’s page on expunging or sealing a federal criminal record.

An Acquittal, and Then a Motion

Artin Coloian was an attorney and a chief of staff to the mayor of Providence when a federal grand jury indicted him on bribery charges in 2001. He went to trial. After four days, a jury acquitted him of every count. Three years later he filed a motion in the same case asking the district court to expunge the record.

Like any acquitted professional, he argued that the indictment was public and that the acquittal changed nothing about what a search returned. He also argued that the record of charges a jury rejected was damaging his ability to practice law. The district judge concluded that courts hold a narrow inherent power over their own records but found no extreme circumstances, and denied the motion.

The First Circuit’s Decision on Jurisdiction

On appeal, the First Circuit did not weigh the equities at all. The First Circuit vacated the district court’s order and directed that the motion be dismissed for lack of jurisdiction. The First Circuit applied the Supreme Court’s limits on ancillary jurisdiction from Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). The First Circuit held that a federal district court has no jurisdiction to consider a motion to expunge a criminal record based purely on equitable grounds.

The decision aligned the First Circuit with the Third, Eighth, and Ninth Circuits. In 2007, the Second, Seventh, Tenth, and District of Columbia Circuits allowed equitable expungement in rare cases. The same motion might at least have been heard in Manhattan in 2007, but a federal court in Boston dismisses the motion without a hearing.

In Doe v. United States, 833 F.3d 192 (2d Cir. 2016), the Second Circuit held that a district court has no jurisdiction to expunge the records of a valid conviction on equitable grounds. In United States v. Wahi, 850 F.3d 296 (7th Cir. 2017), the Seventh Circuit held that a district court has no jurisdiction to expunge the judicial record in a criminal case on purely equitable grounds.

The First Circuit’s opinion did not overrule the older, narrower line of First Circuit cases. In Reyes v. Supervisor of the DEA, 834 F.2d 1093, 1098 (1st Cir. 1987), the court described equitable expungement as a narrow power used more often for records of unconstitutional convictions. A conviction that was itself invalid, or a statute that expressly provides for expungement, still supports relief. Stigma, hardship, and acquittal by a jury do not support relief.

The Contrast with Massachusetts Practice

Under the first paragraph of G.L. c. 276, § 100C, the Commissioner of Probation and the court clerk seal the Massachusetts record of a defendant acquitted in the Boston Municipal Court without a petition.

In Commonwealth v. J.F., 491 Mass. 824 (2023), the Supreme Judicial Court held that sealing under the first paragraph of § 100C is mandatory unless the defendant asks the Commissioner of Probation in writing not to seal the record.

Under Commonwealth v. Pon, 469 Mass. 296 (2014), a judge deciding a petition to seal a dismissal or nolle prosequi under the second paragraph of § 100C weighs the disadvantages the record creates against the public interest in access. A defendant acquitted in the United States District Court in Boston has no equivalent remedy.

The difference results from the absence of any statute, not from a judgment that federal records deserve more permanence. Massachusetts provided a sealing remedy by statute. Congress has enacted no comparable statute. After Coloian, the federal courts in the First Circuit cannot create the remedy themselves.

The Remaining Federal Remedies

The four narrow federal remedies that remain are covered in the federal sections of the firm’s sealing and expungement page. The first two are the under-21 simple possession expungement of 18 U.S.C. § 3607 and relief tied to an invalid conviction. The other two are a presidential pardon sought through the Office of the Pardon Attorney after the 5 year waiting period of 28 C.F.R. § 1.2, and corrections of inaccurate entries under 28 C.F.R. § 16.34.

Everyone else should work to prevent a record at the charging and disposition stage, keep the federal file accurate, and use the Massachusetts remedies fully. The state record is the record that the law allows a person to fix. The firm’s pages on domestic violence case records and on expunging a 209A restraining order or 258E harassment prevention order from the registry explain how the different record systems interact. A person whose record, state or federal, is standing between that person and a job, a license, or a clearance can call 617.936.0201 for a free, confidential consultation.