FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    July 11, 2019
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 17-4117
 v.                                            (D.C. No. 2:00-CR-00023-DB-1)
                                                          (D. Utah)
 EDWARD SETH TRZASKA,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HOLMES, BALDOCK, and CARSON, Circuit Judges.



      Edward Seth Trzaska appeals from the district court’s denial of his motion

to expunge his arrest records relating to a child pornography charge that was later

dismissed. He argues that the district court abused its discretion by denying his

expungement motion solely because he failed to make a showing that the

government had committed misconduct in arresting or charging him. He asks us

to outright grant him expungement relief, or, in the alternative, to vacate and

remand with instructions to the district court to conduct an evidentiary hearing


      *
              This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
regarding the averments contained in his motion. For the reasons that follow, we

reverse the district court’s order denying expungement and remand the case with

instructions to the court to vacate its judgment and conduct further proceedings

consistent with this order and judgment.

                                           I

      In January 2000, a federal grand jury indicted Mr. Trzaska for possession

of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). A month after

being charged and pleading not guilty, Mr. Trzaska filed a suppression motion.

He sought to suppress evidence found at his home during a warrantless search; he

alleged that law enforcement lacked proper consent. Two days before a scheduled

hearing on the motion to suppress, the government sought, and was later granted,

a dismissal of the indictment against Mr. Trzaska in “the interest of justice”

pursuant to Federal Rule of Criminal Procedure 48(a). R., Vol. I, at 14 (Mot. to

Dismiss, filed Mar. 7, 2000).

      Seventeen years later, Mr. Trzaska filed a pro se motion to expunge all

records relating to the 2000 arrest. He alleged in the motion that his arrest was

unlawful since it was premised on an unconstitutional search. Mr. Trzaska also

alleged that the records had “been used to d[e]stroy” his “life” and “his

marriage”; that they had barred him from participating in certain prison programs

during his current incarceration in Nevada; and that they had badly hurt his



                                           2
employment prospects. 

(Pet. for Expungement of Records, filed Mar.

20, 2017).

      The district court denied Mr. Trzaska’s expungement motion. Citing this

court’s decision in United States v. Linn, 

(10th Cir. 1975), the

district court described its equitable expungement power as limited to instances of

“unconstitutional action or unlawful arrest,” R., Vol. I, at 47 (Dist. Ct. Order,

dated July 5, 2017). As the court reasoned, Mr. Trzaska had presented no

evidence of any such unlawful government conduct: the trial court in 2000 had

never considered the merits of Mr. Trzaska’s motion to suppress and there was no

evidence before the court suggesting that the charges were improperly brought or

not supported by probable cause. Thus, the court ruled that Mr. Trzaska had

“failed to show that his case is sufficiently extreme and unusual” to warrant the

court’s exercise of its equitable discretion to expunge his records. 

The

court made this ruling without ordering the government to file a response or

holding a hearing.

      Mr. Trzaska timely filed a notice of appeal. Initially, he proceeded pro se,

filing an opening brief and a reply brief. 1 We subsequently appointed counsel for

Mr. Trzaska, and his counsel filed a supplemental brief. The government



      1
             We liberally construe Mr. Trzaska’s pro se filings. See, e.g., Garza
v. Davis, 

, 1201 n.2 (10th Cir. 2010); Ford v. Pryor, 

,
1178 (10th Cir. 2008).

                                          3
declined the opportunity to file a supplemental brief. Counsel for both parties,

however, presented oral arguments before this court.

      Mr. Trzaska argues that the district court committed reversible error by

denying his expungement motion solely on the basis that he failed to make a

showing that the government had committed misconduct in arresting or charging

him. He asks us to either grant him expungement relief outright, or otherwise to

vacate the denial and remand with instructions for the district court to conduct an

evidentiary hearing as to the averments contained in his motion.

                                         II

      We review a district court’s denial of an expungement motion for an abuse

of discretion. See United States v. Friesen, 

, 817 (10th Cir. 1988).

“An abuse of discretion occurs where a decision is premised on an erroneous

conclusion of law or where there is no rational basis in the evidence for the

ruling.” N.M. Dep’t of Game & Fish v. U.S. Dep’t of the Interior, 

,

1245 (10th Cir. 2017) (quoting Fish v. Kobach, 

, 723 (10th Cir.

2016)).

                                        III

      Given the allegations contained in Mr. Trzaska’s expungement motion, and

the applicable legal standards, we agree with Mr. Trzaska that the district court

committed reversible error in denying his motion on the sole ground that he had

not established the existence of unlawful government conduct relating to his

                                         4
arrest or his charge. This error is a legal one. And, because the court’s denial of

Mr. Trzaska’s expungement motion was based on it, the court’s denial constitutes

an abuse of discretion.

                                           A

      Although (with very limited exceptions not relevant here) district courts

lack statutory authority to expunge arrest records, see United States v. Pinto, 

, 1070 & n.1 (10th Cir. 1993), we have held that they have the authority

to do so under their inherent equitable powers, see 

. 2 See


      2
              We note that, in light of the Supreme Court’s decision in Kokkonen v.
Guardian Life Ins. Co. of America, 

(1994), there is a “growing
appellate consensus,” United States v. Wahi, 

, 298 (7th Cir. 2017),
that federal courts lack inherent authority to expunge criminal records relying
solely upon equitable grounds. In Kokkonen, a civil case regarding a district
court’s authority to hear a post-judgment motion to enforce the settlement
agreement in dispute, the Supreme Court stated that ancillary jurisdiction gives
district courts limited inherent authority to assert jurisdiction “over some matters
(otherwise beyond their competence) that are incidental to other matters properly
before 

. Such inherent power, the Court held, exists for
“two separate, though sometimes related, purposes: (1) to permit disposition by a
single court of claims that are, in varying respects and degrees, factually
interdependent, and (2) to enable a court to function successfully, that is, to
manage its proceedings, vindicate its authority, and effectuate its decrees.” 

(citations omitted).

       Several of our sister circuits have held that a district court’s asserted
authority to expunge arrest or conviction records exclusively for equitable reasons
does not fall under either Kokkonen category, and thus such authority is not
inherent but rather must be grounded in statutes or the Constitution. See 

–03 (7th Cir. 2017); Doe v. United States, 

, 199 (2d
Cir. 2016); United States v. Field, 

, 916 (6th Cir. 2014); United
States v. Coloian, 

, 52 (1st Cir. 2007); United States v. Meyer, 439
                                                                          (continued...)

                                           5
      2
        (...continued)
F.3d 855, 859–60 (8th Cir. 2006); United States v. Dunegan, 

, 479
(3d Cir. 2001); United States v. Sumner, 

, 1014 (9th Cir. 2000). To
be sure, as relevant here, at least one of these circuits has suggested—albeit in
dicta—that even if Kokkonen does not allow district courts to exercise jurisdiction
over equitable expungement of records of valid convictions, “exercising ancillary
jurisdiction to expunge (seal, delete) arrest records following a district court’s
order of dismissal appears to comport with Kokkonen (insofar as it applies to
criminal cases) because it may serve to ‘effectuate [that] decree[ ].’” 

n.2 (alterations in original) (emphasis added) (quoting 

). But, absent statutory authority, these circuits have generally
signaled that they will only entertain expungement motions when the claim is at
least partly based on “an unlawful arrest or conviction.” 

.

       Here, neither the parties nor the district court has mentioned this issue, nor
have the parties asked us to reconsider our precedent, going back at least as far as

, which vests district courts with inherent authority to grant
expungement on equitable grounds. Although we have an independent
“obligation to assure ourselves of litigants’ standing under Article III,” Frank v.
Gaos, --- U.S. ----, 

, 1046 (2019) (quoting DaimlerChrysler Corp.
v. Cuno, 

, 340 (2006)), we nevertheless decide to adhere to Linn and
our prior cases holding that district courts have inherent jurisdiction for two
salient reasons. First, while Kokkonen spoke to the limits on ancillary

–80, it did not specifically address motions for
expungement or whether such motions fall into either of its two categories. And
we “are bound by the precedent of prior panels absent en banc reconsideration or
a superseding contrary decision by the Supreme Court.” Barnes v. United States,

, 1147 (10th Cir. 2015) (emphasis omitted) (quoting In re Smith, 

, 724 (10th Cir. 1993) (per curiam)); see also B RYAN A. G ARNER ET AL .,
T HE L AW OF J UDICIAL P RECEDENT § 36, at 305 (2016) (“When a higher court’s
decision does not plainly or expressly overrule a lower court’s holding, the Fifth
Circuit has held that ‘[a] Supreme Court decision must be more than merely
illuminating . . . because a panel . . . can only overrule a prior panel decision if
such overruling is unequivocally directed by controlling Supreme Court
precedent.’” (emphasis added) (quoting In re Texas Grand Prairie Hotel Realty,
L.L.C., 

, 331 (5th Cir. 2013))). Thus, exercising “due respect for
existing precedent,” we cannot conclude that Kokkonen is the sort of
                                                                         (continued...)

                                          6
also Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-

Violent Federal Offenders, 79 U. C IN . L. R EV . 155, 187 (2010) (noting that some

circuits, including the Tenth Circuit, base jurisdiction to adjudicate requests for

expungement on “the inherent equitable power doctrine”). This inherent power is

“committed to the discretion of the trial court, but it is not a remedy to be granted

frequently,” 

–18; rather, expungement should be limited

to “rare or extreme instances,” Camfield v. City of Okla. City, 

,

1234 (10th Cir. 2001); see also Bromley v. Crisp, 

, 1364 (10th Cir.



      2
        (...continued)
“indisputable and pellucid . . . intervening (i.e., superseding) law that would
permit us to hold (without en banc consideration)” that district courts lack
jurisdiction to consider petitions for equitable expungement. 

; see 

(holding that intervening Supreme Court cases indicating
that time limitation was non-jurisdictional in certain contexts did not allow us to
reverse our cases holding that limitation was jurisdictional in a distinct context,
despite decisions of our sister circuits reversing their own cases).

       And, second, even after Kokkonen, we have continued to state in binding
authority that “[i]t is well settled in this circuit that courts have inherent equitable
authority to order the expungement of an arrest record or a conviction in rare or
extreme instances.” Camfield v. City of Okla. City, 

, 1234 (10th
Cir. 2001). Admittedly, Camfield’s discussion of expungement arose in a distinct
procedural posture—it was addressing expungement first sought in a Federal Rule
of Civil Procedure 59(e) motion—but it did cite our decisions in Pinto and Linn in
support of its assertion of jurisdiction. Id.; see also United States v. Aston, 

, 

, at *1–2 (10th Cir. 1997) (unpublished table decision)
(exercising jurisdiction to affirm denial of equitable expungement motion post-
Kokkonen). Thus, while we acknowledge the post-Kokkonen cases from other
circuits, we decline to depart from our pre-Kokkonen cases holding—and our
post-Kokkonen case suggesting—that district courts do indeed have inherent
authority to equitably expunge arrest records.

                                           7
1977) (en banc) (“[T]he [expungement] power is a narrow one, reserved for

extreme cases.”).

      In the context of a motion to expunge records of criminal convictions—as

opposed to records of an arrest or dismissal of charges—we have said that the

motion must allege that the conviction is legally infirm or was secured through

improper government conduct. Compare 

(“The case law

does support the notion that when a conviction is somehow invalidated, such as

by a finding that it was unconstitutional, illegal, or obtained through government

misconduct, a federal court may, in appropriate cases, grant expungement.”

(emphasis added)), and 

that “federal courts may, in

extreme cases, expunge a federal conviction that has, in some manner, been

invalidated”), with 

“there is a large difference between expunging

the arrest record of a presumably innocent person, and expunging the conviction

of a person adjudged as guilty in a court of law” (emphases added)), and 

stated that, in extreme circumstances, an arrest record may be expunged

after dismissal of the charges or acquittal.”). Cf. Sanchez v. Melendrez, 934 F.

Supp. 2d 1325, 1342 (D.N.M. 2013) (noting, when discussing Pinto, a conviction-

related case, that the “distinction is an important one” between the litigant who

“has not sustained a conviction” and one who has; however, the former scenario

“does not automatically bring [the litigant’s] case into the realm of the

exceptional,” meriting expungement relief).

                                          8
      Where warranted, expungement aims to “remov[e] the stigma and

disabilities that come with having a criminal history.” Mackenzie J. Yee, Note,

Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25

G EO . J. ON P OVERTY L. & P OL ’ Y 169, 178 (2017); see also Deborah Sprenger,

Annotation, Expunction of Federal Arrest Records in Absence of Conviction, 97

A.L.R. F ED . 652, § 2 (1990) (noting that “dissemination of the arrest record can

inflict definite and demonstrable harm on the arrested individual”).

      An expungement motion may fail to aver a legally viable claim for relief on

its face; if so, it should be denied on that basis. See 

(“Defendant argues that it was improper to deny her petition without holding a

hearing. . . . Absent 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.” (emphases added)). For example, we have said that “an

acquittal, standing alone, is not in itself sufficient to warrant an [expungement] of

an arrest record.” 

–28; see 

(“[M]ere acquittal of the subsequent charge is an insufficient reason to grant

[expungement].”); see also Diamond v. United States, 

, 498 (7th Cir.

1981) (noting that “[t]he rule of the case [i.e., Linn] is simply that a mere

acquittal is insufficient to grant [expungement]”), abrogated on other grounds by

United States v. Wahi, 

(7th Cir. 2017).



                                          9
      A movant must do more, however, than simply aver a legally viable claim

for expungement relief; the movant also must establish that his or her averments

are grounded in fact through some form of evidentiary showing. See 

(reversing trial court’s order granting expungement of defendant’s

arrest record where there was “no factual basis in this record” for the defendant’s

“unsupported conclusions” regarding the reputational and professional harms that

the arrest record had caused him); 

–88 (“The petitioner

[seeking expungement relief] needs evidence . . . showing that the circumstances

surrounding the case call for the application of fairness and justice.”); 

(“The Tenth Circuit has emphasized the importance of evidentiary proof of actual

harms suffered by the defendant when petitioning the court for expungement.”);

see also 

(expressing “approv[al] [of] the case-by-case

approach” of our Linn decision to assessing whether the defendant’s

circumstances justify expungement relief, but noting that “[s]uch an approach

behooves the district court to develop a complete factual record”); Ray v. United

States, 

, 

, at *1 (10th Cir. 1991) (unpublished table

decision) (upholding the trial court’s denial of expungement relief, upon

observing that petitioner’s “conclusory claims are speculative and unsupported by

the record”); United States v. Williams, 

, 1347 (D. Utah

2008) (“In evaluating the individual harms caused by a criminal record, and in

order to subsequently apply the balancing test, the court [i.e., the Tenth Circuit]

                                          10
has emphasized the importance of evidentiary proof of actual adverse

consequences suffered by the defendant.”); United States v. Johnson, 

, 525 (S.D. Fla. 1989) (“Before a court undertakes the drastic step of ordering

expungement to protect a defendant from harm, the court must determine that the

harm is real.” (emphasis added)).

      If a movant is successful in making this factual showing, the district court

is obliged to balance “the interests of the State in maintaining records for law

enforcement against the individual’s rights.” 

; see 

grant of an expungement motion because “the district court

apparently did not” “balance the equities and exercise discretion”); 

(noting with apparent approval that “[c]ertain of the cases call for a

‘balancing’ of the equities between the Government’s need to maintain extensive

records in order to aid in general law enforcement and the individual’s right of

privacy”); see also 

(“In deciding issues of

expungement the 10th [C]ircuit has acknowledged and applied the ‘balancing test’

method used by many courts in sister circuits.”); 

(noting that

“judicial expungement involve[s] balancing the harm to the individual caused by

the existence of the criminal record against the public interest in preserving the

record”); cf. 

(“Typically the courts use a balancing test that

weighs the petitioner’s interest in avoiding the harm that results from a conviction



                                          11
against the public’s interest in maintaining criminal records and promoting

effective law enforcement.”).

      Relevant factors in this balancing may include, among others, the time that

has elapsed since the arrest, see, e.g., 

(“The

Government should be required to state . . . why it is necessary to maintain this

17-year-old rap sheet.”), as well as considerations relating to culpability, see, e.g.,

United States v. Schnitzer, 

, 540 (2d Cir. 1977) (discussing the

“proper balancing of the equities,” in the context of rejecting an expungement

motion, and noting that “[t]he [dismissed] indictment constitutes a finding of

probable cause by the grand jurors,” and “the dismissal of the indictment did not

concede the innocence of [the movant]”); United States v. Van Wagner, 746 F.

Supp. 619, 620–22 (E.D. Va. 1990) (holding, where movant did not dispute that

“there was probable cause to arrest” him in connection with a drug-trafficking and

money-laundering conspiracy but the charges were dismissed and the government

conceded his innocence, that movant’s “real and permanent economic harm as a

result of the arrest record” warranted grant of expungement, which “gives the

relief justice requires”). See also Sprenger, supra, § 2 (noting that “[t]here are

several factors that courts have considered in granting or denying motions for

expungement of arrest records,” including “the harm to an arrestee’s

employment,” “reputation,” and whether “he or she may be a suspect in future

criminal investigations”). Through this balancing process, the district court

                                          12
applies its equitable discretion to determine whether “unusually compelling

circumstances” are present that warrant granting expungement. 

.

                                         B

      The district court erred by effectively treating Mr. Trzaska’s expungement

claim as legally invalid on its face because Mr. Trzaska had not established the

existence of unlawful government conduct relating to his arrest or charge. The

district court’s approach is inconsistent with our caselaw, which makes clear that,

as to motions to expunge arrest records related to acquittals or dismissals of

charges, the movant need not allege or show government misconduct.

      We have indicated that the requirement to allege and show government

misconduct applies only to motions to expunge records of a criminal conviction;

such motions have been held to a higher standard than those seeking expungement

of records relating to acquittals or dismissals of charges. See 

(requiring a showing of government misconduct to expunge records of

convictions, but not acquittals or dismissals, because there is a “large difference

between expunging the arrest record of a presumably innocent person, and

expunging the conviction of a person adjudged as guilty in a court of law”).

      Our decision in Linn does not suggest otherwise, and the district court

misread that case in concluding that it did. In Linn, we affirmed the denial of a

motion to expunge arrest records relating to various white-collar charges of which

                                         13
the defendant had been acquitted. 

–28. Though the defendant

argued that the records would damage his personal and professional reputation,

we concluded that this argument could be made by anyone acquitted of any

criminal charge. See 

stated that the case “really boil[ed]

down to whether the fact that Linn was acquitted [was] in itself sufficient” to

warrant expungement of the arrest record, and we held that it was not. 

      In the process of explaining that Mr. Linn’s expungement motion was

legally invalid, we remarked that he had made no showing of government

impropriety. See 

More specifically, we surveyed the caselaw and

noted that “[u]nder the cases . . . , [1] where the arrest itself was an unlawful one,

or [2] where the arrest represented harassing action by the police, or [3] where the

statute under which the arrestee was prosecuted was itself unconstitutional, courts

have ordered [expungement].” 

And, then, we explained that by

contrast the Linn defendant’s arrest was a “lawful one, pursuant to an indictment

returned by a duly constituted grand jury,” and “[t]he charges set forth in the

indictment were lawful ones not subject to any constitutional infirmity.” 

Furthermore, there was no indication of harassing action by the government.

See 

the Seventh Circuit discerned, in the context of a request to expunge

an arrest record, “Linn does not stand for the proposition that [expungement] may

be ordered only if one of the three circumstances described therein are present.

                                          14
Rather, those circumstances merely were illustrative of situations in which

[expungement] had been considered appropriate.” 

(emphasis added). At bottom, reasoned Diamond, “[t]he rule of the case [i.e.,

Linn] is simply that a mere acquittal is insufficient to grant [expungement].” 

way, outside of the criminal-conviction context, Linn merely

describes types of government misconduct that are sufficient to warrant

expungement; it did not hold that the presence of such misconduct was necessary

to justify expungement. See, e.g., United States v. Burkholder, 

, 620

n.10 (10th Cir. 2016) (“An event or condition is sufficient if its existence means

that another event or condition will occur. An event or condition is necessary if,

in its absence, another event or condition could not occur.” (final emphasis

added)). Ultimately, as Linn itself understood, “there appears to be no definitive,

all-purpose rule to govern requests of this nature [i.e., for expungement], and to a

considerable degree each case must stand on its own two feet.” 

.

       This reading of Linn also is confirmed by our later decision in Friesen.

There, an attorney, Mr. Friesen, had been charged with conspiracy to knowingly

and intentionally manufacture cocaine. 

. After he was

acquitted on all counts, he filed a motion to expunge his related arrest record. 

the district court’s grant of his motion, we noted that, like the

defendant in Linn, Mr. Friesen had not established any government impropriety

                                          15
relating to his arrest. See 

(“[I]n Linn, as here, the arrest was lawful,

and there was sufficient evidence of guilt for the jury to consider.”).

       However, this did not mark the end of the road for Mr. Friesen’s

expungement motion. Instead, we noted that “those similarities [with Linn]

notwithstanding, [Mr. Friesen’s] case has an additional dimension which requires

further inquiry.” 

dimension” was that “drug offenses may

bear an opprobrium not inherent in other crimes; therefore, an arrest for a drug

offense may result in that kind of harm to a defendant which can be removed only

by [expungement].” 

factor, we reasoned: “If true, and if found

by the trial court to be unusually compelling circumstances, these may be reasons

to justify the exercise of the trial court’s ‘narrow’ power to order

[expungement].” 

though Mr. Friesen failed to make a showing of

government misconduct, we effectively concluded that his claim to expunge his

arrest records was legally viable and that he should be given an opportunity to

factually validate it.

       Accordingly, we conclude that the district court erred here by effectively

treating Mr. Trzaska’s motion to expunge his arrest record as legally invalid on its

face because Mr. Trzaska had not established the existence of unlawful

government conduct relating to his arrest or charge. Furthermore, guided by

Friesen, we may confidently opine at this stage of the litigation that, “[i]f true,

and if found by the trial court to be unusually compelling circumstances, these

                                           16
[allegations of harm to Mr. Trzaska] may be reasons to justify the exercise of the

trial court’s ‘narrow’ power to order [expungement].” 

regard, we note that Mr. Trzaska’s motion for expungement is akin

to the one in Friesen. Specifically, we read Mr. Trzaska’s motion as primarily

attributing the harms caused by his arrest record to an “additional dimension”—

that is, the “opprobrium not inherent in other crimes” of child pornography

offenses. 

Mr. Trzaska alleged, inter alia, that his arrest record has

damaged his employment prospects and ability to participate in prison programs.

Though Mr. Trzaska did not explicitly state that these harms stemmed from the

stigma of a child pornography charge, in light of our repeated recognition of the

acute opprobrium inherent in such offenses, see United States v. Burkhart, 

, 1207 (10th Cir. 2010) (describing the “severe social stigma”

associated with child pornography possession); United States v. Riccardi, 

, 861 (10th Cir. 2005) (discussing the tendency of offenders to conceal

child pornography because of the social stigma associated with it), and given that

“[a] document filed pro se is to be liberally construed,” United States v. Trent,

, 993 (10th Cir.) (quoting Erickson v. Pardus, 

, 94

(2007)), cert. denied, 

(2018), we believe that it is natural to

interpret Mr. Trzaska’s motion as effectively making this assertion about the

primary source of his harm. Thus, like the movant in Friesen, Mr. Trzaska’s

motion for expungement presented the district court with “an additional

                                         17
dimension which requires further inquiry,” 

—that is, the

acute opprobrium of the child pornography charge and the harm it caused him.

       In sum, we hold that the district court abused its discretion when it denied

Mr. Trzaska’s expungement motion solely because he made no showing of

unlawful government conduct; this basis for denial was legally erroneous.

Further, as in Friesen, we conclude that Mr. Trzaska presented the district court

with “an additional dimension which requires further inquiry,” 

the

acute opprobrium of child pornography charges, like his, and the specific harm

that he has experienced because of his arrest record for a child pornography

offense. 3

                                          C

       As a consequence of this favorable holding, Mr. Trzaska contends that we

should grant him expungement relief outright. We reject this contention. Such a


       3
              Although Linn makes clear that “a mere acquittal” or, analogously,
the dismissal of a criminal charge, is legally “insufficient,” standing alone, to
warrant expungement, 

; see 

, Linn
also instructs courts, in the context of requests to expunge arrest records, to adopt
a “case-by-case approach,” 

; see 

(noting that “there appears to be no definitive, all-purpose rule to govern requests
of this nature, and to a considerable degree each case must stand on its own two
feet”). Therefore, we are not saying that the presence of an “additional
dimension,” 

, in the form of an acutely opprobrious
offense, like child pornography possession, is an essential ingredient to a legally
viable expungement claim. Rather, with the clear guidance of Friesen, we are
simply able to readily underscore here that Mr. Trzaska’s claim “requires further
inquiry.” 

will be other circumstances that merit such
inquiry, but we have no need to address them here.

                                          18
course would be both unprecedented and inconsistent with the district court’s

proper role in finding facts and balancing the interests of the movant and the

government with respect to expungement. See, e.g., 

;

. Recall that, even if a movant is successful in

pleading a legally viable claim for expungement, that is just the first—albeit

necessary—step on the road to expungement relief. The movant must then

establish a factual foundation for its claim. See, e.g., 

;

; 

–88. And, only at that

point is the district court obliged to balance the interests of the movant with those

of the government to determine if the movant should receive a favorable exercise

of its equitable discretion.

      Our holding here only implicates the first step on this road. We have

concluded that the district court erred by effectively treating Mr. Trzaska’s

expungement claim as legally invalid on its face because Mr. Trzaska had not

established the existence of unlawful government conduct relating to his arrest or

charge. Moreover, due to the guidepost of Friesen, we were able to readily

determine here that this case has “an additional dimension which requires further

inquiry,” 

, concerning the acute opprobrium of child

pornography charges, like Mr. Trzaska’s, and the alleged harm caused by his

arrest record for a child pornography offense.



                                          19
      Mr. Trzaska still must do more; notably, he must establish a factual

foundation for his claim. Therefore, instead of providing expungement relief

outright, we will remand to the district court with instructions to vacate its

judgment and to conduct further proceedings.

      Mr. Trzaska’s arguments lead us to provide some guidance regarding the

nature of those proceedings. He asks us to instruct the district court on remand to

conduct an evidentiary hearing in order to make factual findings as to the truth of

the averments in his expungement motion. To support this argument, Mr. Trzaska

points to Friesen, where we reversed the grant of an expungement motion notably

because of the absence of a “factual basis in the record” to support the motion’s

allegations of “stigma” and related damage to movant’s “private or professional

life” allegedly stemming from the record of his “arrest for a drug offense.” 

that the district court had “based its judgment only upon the

unsupported conclusions set forth” in the defendant’s motion. 

we noted that the necessary facts “are properly established in an adversary

proceeding,” and, in that case, remanded for the court to “hold[] an evidentiary

hearing and [to] mak[e] findings of fact.” 

read it, the upshot of Friesen is that the panel placed the burden on

movants to establish a factual foundation for their expungement claims and

opined that this should occur in some form of “adversary proceeding.” Id.; see

also 

(noting that “[t]he importance of factual

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evidence showing actual adverse consequences to the defendant is made

especially clear in Friesen”); 

& n.240 (citing Friesen and

noting that “[t]he Tenth Circuit has emphasized the importance of evidentiary

proof of actual harms suffered by the defendant when petitioning the court for

expungement”). We do not read Friesen, however, as mandating that, in every

instance, this adversary proceeding should take the form of an evidentiary

hearing. At the district court’s discretion, it may allow movants to factually

support their expungement claims by attaching affidavits, declarations, and other

documentary evidence to their expungement motions. In this event, the

government should be given an opportunity to present responsive materials in a

similar form. Of course, the court may elect instead to conduct a full-blown

evidentiary hearing.

      The critical point is that the movant bears the burden of

establishing—through an adversary process—the factual foundation for its claim

for expungement relief. And only if it is successful in doing so is the trial court

obliged to balance the interests of the movant against those of the government.

See 

(noting that, if the trial court found the “reasons”

put forward in the expungement request to be “true” then the trial court should

determine if they “justify the exercise of the trial court’s ‘narrow’ power to order

[expungement]”); 

(vacating the grant of an

expungement motion because “the district court apparently did not” “balance the

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equities and exercise discretion”); see also 

(“In

evaluating the individual harms caused by a criminal record, and in order to

subsequently apply the balancing test, the court [i.e., the Tenth Circuit] has

emphasized the importance of evidentiary proof of actual adverse consequences

suffered by the defendant.” (emphasis added)).

      The district court’s erroneous determination as to the legal invalidity of Mr.

Trzaska’s expungement motion eliminated the need for any inquiry into the

factual basis for the motion. On remand, in addition to any further briefing it may

choose to order, the district court should grant Mr. Trzaska an opportunity to

offer evidentiary materials to establish (if possible) a factual foundation for his

claim for expungement—through supplementation of his motion, participation in

an evidentiary hearing, or other means that the court, in its discretion, directs.

The government should be given an opportunity to respond in like form. If, and

only if, the district court makes findings establishing the truth of Mr. Trzaska’s

legally viable, expungement-related averments, then the court must balance Mr.

Trzaska’s interests with the government’s and decide whether Mr. Trzaska’s

expungement motion warrants a favorable exercise of the court’s equitable

discretion—that is, whether his reasons for requesting expungement are

“unusually compelling.” 

.




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                                       IV

      For the foregoing reasons, we REVERSE the district court’s order denying

Mr. Trzaska’s expungement motion and REMAND the case with instructions to

the court to VACATE its judgment and conduct further proceedings consistent

with this order and judgment.



                                ENTERED FOR THE COURT




                                Jerome A. Holmes
                                Circuit Judge




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