A Pardoned Conviction Counts in Federal Court if it was not Granted Due to Innocence or Errors of Law, or Otherwise Rendered the Conviction a Nullity.

The Board of Pardons and Paroles granted a pardon to Clint Bays who was on parole for vehicular manslaughter. He was later convicted of a drug offense and a gun offense in federal court. He argued there that his pardoned conviction should not count as criminal history in his sentencing guideline calculation. The District Court disagreed with Clint and the Ninth Circuit affirmed.

Here's a link to the Ninth Circuit Blog summary: http://www.circuit9.blogspot.com/

Here's a link to the published opinion: http://www.ca9.uscourts.gov/datastore/opinions/2009/12/17/09-30124.pdf


Clint is a well-known, respected and beloved private investigator who did a lot of good work for defense attorneys here in Southern Idaho. It's a real shame what happened to him. It's also a shame that pardons don't mean as much as you'd think they would.

How to make Lemonade out of this opinion: One of the reasons the Ninth Circuit concluded that the pardon was not an "expungement" (which would not be counted) is that "the Idaho Legislature has implemented statutory procedures which enable a defendant to request that a prior conviction be expunged," citing to I.C. 19-2604 and 20-525A. "If the state court grants the requested relief, the conviction is vacated and becomes a nullity. . . . This relief is more extensive than the mere removal of the punishment and effects of a finding of guilt." To my knowledge, this is the first time the Circuit has suggested that a conviction dismissed under I.C. 19-2604 does not count in the criminal history calculation.