FSM v Iriarte [2019] FMSC 29; 22 FSM R. 271 (Pon. 2019) (24 April 2019)

FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2015-517

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

MAX IRIARTE, JR.,
Defendant.
__________________________________________

ORDER DENYING EXPUNGEMENT PETITION

Larry Wentworth
Associate Justice

Decided: April 24, 2019

APPEARANCES:

For the Plaintiff: Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure Ä Expungement
Prior FSM caselaw recognizes the court’s jurisdiction and authority to expunge criminal records in only three limited situations or categories, which are: 1) expungement pursuant to a statute, 2) expungement when it is necessary to preserve basic legal rights, or 3) expungement based on an acquittal, although, in the case of an acquittal, it is doubtful that expungement can be ordered based solely on the acquittal. FSM v. Iriarte, 22 FSM R. 271, 273 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
There is no FSM statute authorizing expungement of criminal records. FSM v. Iriarte, 22 FSM R. 271, 274 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
Although 4 F.S.M.C. 117 generally grants the court all powers needed to perform its functions, it does not grant the court the authority to expunge records unless the court already has such jurisdiction, and, absent a specific statute or invalid conviction, the court lacks such jurisdiction. FSM v. Iriarte, 22 FSM R. 271, 274 n.2 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
The court is especially wary of making new law in an area where Congress has considered legislating, but has not yet decided what, if anything, should be enacted into law since Congress may yet act and provide a statutory means to seek an expungement. FSM v. Iriarte, 22 FSM R. 271, 274 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
The court has the inherent power to expunge records when it is necessary to preserve basic legal rights or, in an unusual and exceptional case, based on an acquittal. FSM v. Iriarte, 22 FSM R. 271, 274 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
When the defendant’s arrest or conviction was not in any way unlawful or invalid and when the government has not engaged in misconduct, the court does not have the inherent power to grant expungement. FSM v. Iriarte, 22 FSM R. 271, 274 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
The court does not have the power to expunge a record of a valid arrest and conviction solely for equitable considerations. Jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error. FSM v. Iriarte, 22 FSM R. 271, 275 (Pon. 2019).

Criminal Law and Procedure Ä Pleas
The first step in determining whether a plea agreement has been breached and whether a remedy is proper is to determine if promises were made and, if so, what they were. While the government must be held to the promises it made, it will not be bound to those it did not make. FSM v. Iriarte, 22 FSM R. 271, 275 (Pon. 2019).

Criminal Law and Procedure Ä Expungement; Criminal Law and Procedure Ä Pleas
The FSM promised that it would support the defendant’s expungement petition if the FSM determined that all the sentencing conditions have been satisfied, and it kept that promise when, having determined that the defendant had satisfied the plea agreement’s conditions, the FSM not only did not oppose the defendant’s expungement petition, but it also affirmatively stated that it supported the petition. The FSM did not breach the plea agreement, and it also did not violate its plea agreement promise when it truthfully responded to the court’s request for briefing about the current state of FSM law on expungement. FSM v. Iriarte, 22 FSM R. 271, 275 (Pon. 2019).

Contracts Ä Breach; Criminal Law and Procedure Ä Expungement
When the FSM did not (and, because of separation of powers issues, probably could not) promise a defendant that all record of the matter would be completely expunged (presumably ordered sealed), but promised to support the defendant’s expungement petition, and when the FSM did not breach that plea agreement promise, the defendant is not entitled to an expungement as specific performance (or to any other remedy) for his breach of contract claim. FSM v. Iriarte, 22 FSM R. 271, 275 (Pon. 2019).

Criminal Law and Procedure Ä Expungement
When the court currently has neither the jurisdiction nor the power to expunge a defendant’s record in a matter, the defendant’s petition for expungement will be denied. FSM v. Iriarte, 22 FSM R. 271, 276 (Pon. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This is before the court on defendant Max Iriarte, Jr.’s Petition to Expunge Criminal Record, filed January 8, 2019. The court set a February 19, 2019 hearing on the petition. At that hearing, the court inquired whether it had the authority to expunge Iriarte’s record, and asked the parties to brief that point. The government submitted its Brief on Authority to Grant Expungement on February 28, 2019. Iriarte submitted his brief on March 12, 2019.

The court then felt that one further point had to be addressed and asked the parties to brief whether, if the court lacked the authority to order an expungement in this case, what other remedy, if any, might be available? On March 25, 2019, the government filed its Brief on Remedies Available to the Defendant, and on April 2, 2019, Iriarte filed his Further Briefing.

The petition is denied. The court’s reasoning follows.

I. IRIARTE’S PLEA AGREEMENT

On October 17, 2016, Iriarte was convicted on his pleas of guilty of the crimes of: interference with goods under the control of customs, 54 F.S.M.C. 234(5); attempted smuggling, 54 F.S.M.C. 261; bribery of a customs officer (two counts), 54 F.S.M.C. 262 and 11 F.S.M.C. 516(1)(c); and private compensation of government officials (two counts), 11 F.S.M.C. 520(2). Iriarte was sentenced to pay a $15,000 fine and serve two years imprisonment, suspended, and placed on probation, provided that he comply with certain conditions including prompt payment of the fine.

Iriarte’s guilty pleas were made pursuant to a plea agreement with the government. That plea agreement included a provision that:

The parties agree that if defendant successfully complies with all terms of sentencing, including probation, payment of fines, and any other conditions under this Plea Agreement, that the defendant may petition the Court to have the case expunged from his record and the FSM will support such petition if the FSM determines that all conditions have been satisfied.

Plea Agreement, para. 8 (Oct. 15, 2015). Iriarte successfully complied with the Plea Agreement’s terms and with the court-imposed sentence, which generally followed the plea agreement. The FSM acknowledges that all the plea agreement’s conditions have been satisfied. Hence the petition now before the court.

II. PRIOR FSM JURISPRUDENCE

Prior FSM caselaw recognized the court’s jurisdiction and authority to expunge criminal records in only three limited situations or categories. Those three categories are: 1) expungement pursuant to a statute, 2) expungement when it is necessary to preserve basic legal rights, or 3) expungement based on an acquittal, although, in the case of an acquittal, it is doubtful that expungement can be ordered based solely on the acquittal. FSM v. Fritz, 20 FSM R. 596, 599 & n.1 (Chk. 2016); FSM v. Innocenti, 20 FSM R. 293, 295 (Pon. 2016); FSM v. Erwin, 16 FSM R. 42, 43 (Chk. 2008); FSM v. Kihleng, 8 FSM R. 323, 325 (Pon. 1998).^[1]

The parties agree, and the court also concludes, that Iriarte’s situation does not fall within any of these three categories. Iriarte was convicted, not acquitted. No governmental misconduct was involved (and there are no basic fundamental rights to vindicate) in Iriarte’s arrest, prosecution, or conviction. And there is no FSM statute authorizing expungement of criminal records.^[2]

III. ANALYSIS

Iriarte asserts that the court may order his criminal records expunged either through the court’s inherent powers or by enforcing the terms of his plea agreement with the prosecution as a contract between him and the government.

A. Inherent Power

Iriarte contends that the court should exercise its inherent power to grant an expungement. He suggests that it could be exercised in a manner similar to what the court would do under an authorizing statute such as the Federal First Offender Act, 18 U.S.C. § 3607(c), in the Unitedes. es. Congress has considered enacting a first-offender diversion program but has declined to do so. See Erwin, 16 FSM R. at 44 n.1. Congres also considered amending Title 11 of the FSM Code to statustatutorily authorize court-ordered expungement under certain circumstances. See Cong. Bill No. 19-200, 19th Cong., 5th Reg. Sess. (2016). The court is especially wary of making new law in an area where Congress has considered legislating, but has not yet decided what, if anything, should be enacted into law. Congress may yet act and provide Iriarte a statutory means to seek an expungement.

Iriarte asserts that the court has complete discretion to use its inherent powers to order expungement. The court, in dicta, has already acknowledged that it has some inherent power to order expungement Ä the power to order an expungement in the absence of an authorizing statute (categories 2) and 3) listed above in part II). As noted above, the court believes that it has the inherent power to expunge records when it is necessary to preserve basic legal rights or, in an unusual and exceptional case, based on an acquittal.

"Courts which have recognized an equitable power to expunge have unanimously observed that it is a narrow power, appropriately used only in extreme circumstances." United States v. Smith, [1991] USCA9 697; 940 F.2d 395, 396 (9th Cir. 1991). For instance, a defendant who has been acquitted must show "exceptional circumstances" in order to be entitled to an expungement of a criminal record. Allen v. Webster, [1984] USCA4 1275; 742 F.2d 153, 155 (4th Cir. 1984). A court also has the inherent authority to grant an expungement "when a conviction is somehow invalidated, such as by a finding that it was unconstitutional, illegal, or obtained through government misconduct." United States v. Pinto, [1993] USCA10 829; 1 F.3d 1069, 1070 (10th Cir. 1993). When the defendant’s arrest or conviction was not in any way unlawful or invalid and when the government has not engaged in misconduct, the court does not have the inherent power to grant expungement. Smith, 940 F.2d at 396.
Iriarte also argues the following reasons for expunging his record: an unexpunged record may make it difficult to travel abroad; it is important to his business dealings (as a business general manager) and to his community standing; his record is otherwise unblemished; and he is remorseful. These are equitable grounds for relief.

The court, however, does not have "the power to expunge a record of a valid arrest and conviction solely for equitable considerations. . . . [J]urisdiction mitli to e to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error." United States v. Sumner, [2000] USCA9 449; 226 F.3d 1005, 1010 (9th Cir. 2000). Courts do not the rity to expunge ange an othn otherwise valid felony conviction on purely equitable grounds. See, e.g., United States v. Adalikwu, 757 F. App’x 909, 911 (11th Cir. 2018); United States v. Wahl, 850 F.3d 296, 302 (7th Cir. 2017); Doe v. United States, 833 F.3d 192, 198 (2d Cir. 2016); United States v. Field, 756 F.3d 911, 915-16 (6th Cir. 2014); United States v. Coloian, [2007] USCA1 60; 480 F.3d 47, 51-52 (1st Cir. 2007); United States v. Meyer, [2006] USCA8 182; 439 F.3d 855, 862 (8th Cir. 2006); United States v. Dunegan, [2001] USCA3 105; 251 F.3d 477, 480 (3d Cir. 2001); see also Sealed Appellant v. Sealed Appellee, [1997] USCA5 2454; 130 F.3d 695, 699 (5th Cir. 1997); see generally George L. Blum, Annotation, Judicial Expunction of Criminal Record of Convicted Adult in Absence of Authorizing Statute, 68 A.L.R.6th 1, § 4 (2011>

Accordingldingly, the court’s inherent power to expunge records does not extend to Iriarte’s situation. Only Congress can authorize, by se, the court to expunge criminal records based on equitabletable considerations.

B. Plea Bargain as a Contract with the Prosecution

Iriarte also contends that the court may order an expungement by enforcing his plea agreement as a contract between him and the prosecution so that he receives the benefit of his bargain. He asserts that he is entitled to specific performance of his plea agreement.

"The first step" in determining whether a plea agreement has been breached and whether a remedy is proper "is to determine if promises were made and, if so, what they were. ’While the government must be held to the promises it made, it will not be bound to those it did not make’ . . . ." 5 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 21.2(d), at 599-600 (3 2007 2007) (quotu>Unitatesentress[1986] USCA4 973; , 792 F.2d 461, 464 (4th Cir. 1986)).

Here, the the FSM pFSM promisromised that it would "support [Iriarte&#8 expungement] petition if the FSM determine[d] that all [thl [the sentencing] conditions have been satisfied." Plea Agreement, para. 8 (Oct. 15, 2015). The FSM has kept that promise. Having determined that Iriarte had satisfied the plea agreement’s conditions, the FSM not only did not oppose Iriarte’s petition, it also affirmatively stated that it supported Iriarte’s petition. The FSM did not breach the plea agreement. Cf. United States v. White, [2004] USCA8 285; 367 F.3d 968, 970 (8th Cir. 2006) (plea agreement not breached when government, as per the plea agreement, recommended concurrent sentence, but the court imposed consecutive sentence); United States v. Torres-Rosa, [2000] USCA1 69; 209 F.3d 4, 9-10 (1st Cir. 2000) (when government made the sentencing recommendation agreed to in a plea bargain, the agreement was not breached when the defendant did not receive the benefit of his bargain because the court imposed a higher sentence). The FSM also did not violate its plea agreement promise when it truthfully responded to the court’s request for briefing about the current state of FSM law on expungement.

The FSM did not (and, because of separation of powers issues, probably could not) promise Iriarte that all record of this matter would be completely expunged (presumably ordered sealed). As the FSM did not breach the plea agreement, Iriarte is not entitled to an expungement as specific performance (or to any other remedy) for his breach of contract claim. FSM v. GMP Hawaii, Inc., 16 FSM R. 601, 606 (Pon. 2009) (specific performance is dependent upon the success of a breach of contract claim).

Iriarte is thus not entitled to any relief on his claim that the FSM breached his plea agreement.

IV. CONCLUSION

Accordingly, the court concludes that it currently has neither the jurisdiction nor the power to expunge defendant Max Iriarte, Jr.’s record in this matter. His petition is therefore denied.

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^[1] See also In re Suka, 18 FSM R. 554, 556 (Chk. S. Ct. Tr. 2013) for a state court ruling following the same principles for someone seeking an expunction (a synonym for expungement) in that court.

^[2] Although 4 F.S.M.C. 117 generally grants the court all powers needed to perform its functions, it does not grant the court the authority to expunge records unless the court already has such jurisdiction, and, absent a specific statute or invalid conviction, the court lacks such jurisdiction. FSM v. Innocenti, 20 FSM R. 293, 295 n.1 (Pon. 2016).