thank you very much and thank you may it please the court i'm sara reilly howard i'm here on behalf of stacey field the appellant i'd like to reserve three minutes for rebuttal please based on legal infirmity here we are talking about such a case where we have an indictment an arrest based and a patently illegal search to use the words of the original district per judge unlawful interrogation there's a long standing precedent and many circuits that jurisdiction access for expungement in these limited circumstances and that precedent includes post kukkonen cases in other circuits in fact those cases post to conan which stated that there would be limited jurisdiction in those types of expungement was relied on by this court in united states versus luisita i'm going to spend the bulk of my time addressing this point however i just briefly wanted to touch on the government's two other arguments i reply brief addresses those but the government's argument that of the case has changed and there would no longer be an underlying the illegality it hasn't changed and even if it had the government waived that argument by failing to argue to chief judge maloney below that  there was a lobby case change secondly the argument the government makes that ms field wouldn't be equitably entitled to expungement anyways under these circumstances we take issue with the premise of that argument but also the propriety of it here because we're preclude ancillary jurisdiction based on equitable factors but sometimes the language of lucy appears to be to me at least to be a little broader than that and i course was a part of the kerry panel which lucy doubt pretty much disregards acking they're probably some way to reconcile and when i try to analyze that is she in terms of the precise language of could come on and it's kind of hard for me to see  courts how expungement would be necessary for the court to manage its proceedings vindicate its authority in effect to wait it secret i mean it's the krays have already achieved whatever there seem to me to a little a little bit to really embroider was in a bit of merits consideration although it's the supreme court standard it's the one we have to apply so i about being necessary to permit a court to function effectively particularly to vindicate its authority and to effectuate its decrease and i do think that there are there is activity here showing that the court and two other supreme court cases you could coincide it's those as acceptable uses of ancillary jurisdiction one young where the court recognized the inherent authority to appoint counsel to investigate and prosecute violation of a court's order after the conclusion of the proceedings and two in chambers the supreme court talks about the chambers case in which the district court had the power to compel a party to pay the opposition's attorney's fees as a sanction for misconduct that occurred during the entire course of litigation so after the litigation had concluded this was an acceptable use of ancillary jurisdiction particularly at page forty four of the chambers case the court says it is firmly established that the power to punish for contempt is inherent in our courts this party reaches both kind of before the court and that beyond the court's confines for the underlying concern that gave rise to the contempt hour was not merely the disruption of the court proceedings rather it was disobedience to the orders of the judiciary regardless of whether such disobedience interfered with the conduct of a trial so they're specifically talking about actions that occurred post litigation in those two cases cited by cook i ask a couple of questions which would help me understand your position yes or no and i want to ask i know that you know sometimes my colleagues are uncomfortable  mask hypotheticals but it will help me understand your position let's say you have a state administrative law judge that has a case before him let's say whether a teacher should have been fired or something and wants to use  and the prosecutors or the state board wants to use evidence of an arrest which is arguably a totally unconstitutional arrest as part of the evidence would th would that a day in the state proceeding have the power to say i'm not going to look at that evidence because it's unconstitutional i presume you're talking about it as something that's been found constitutional by another federal court your honor either way yes i think that that state administrate of judge has the power to say i'm not going to look at something that was gathered in violation of the law seems like they could do that right they could have their own exclusionary rule ok to that doesn't mean that the state were talking about whether or not the i'm asking whether the fact that you could exclude it because of its unconstitutionality gives you the power to order that it be expunged and you're saying no not by  exclude from the proceeding before you does not necessarily include the power to expunge not to the record ok so then i want to ask another question let's assume that you had the same arrest that you had here but it never it was never prosecuted but it's causing all the same problems so the rest record saying you were arrested for this but because there never be anything that ever invoked the jurisdiction of the federal support i think it back point b person who was arrested but never prosecuted would have the power to bring an action asking for expungement of the record or some other jurisdiction it would be under probably under a different form of jurisdiction amply you might you might i mean i suppose the person might bring a  or if state officials were involved sometimes are these the wrist even when there is ultimately a federal prosecution might be night ninety three might see can jump to of relief along with damages if you could get that but you doesn't seem like you'd be there'd be a way that it would involve an ancillary jurisdiction question and there i think it would have to fall under some other form of jurisdiction your honor and everything so if you can't then then i have this question if you can't if the only basis for jurisdiction here is the fact that it was excluded from evidence in the procedure before you but that's not enough and there isn't anything more it's like zero plus zero equals equals nothing i would disagree with one of the premises of your question your honor that it wasn't enough here that it was excluded as part of the criminal case i think that they answered to the judge at the district it wouldn't if it was another forum that excluded i'm not seeing how the power to exclude leads to the power to expunge i just don't i'm not seeing where it's coming from it's different from cases where you're talking about the records of the court that was a distinction that was made that the difference between a court's own workers which presumably they have some power over but they're only going to be their records if the case actually comes before them right and the power to tell some other branch of government how to deal with their records you can say we won't look at those records because they're on constitutionally obtained and i'm having trouble seeing where the power to tell another agency another branch of the government what to do with their records comes from the power to exclude in proceedings before the court how does words that it other than if you go through begins or one of those routes that you haven't gone through here it comes from the courts ability to vindicate its authority and to effectuate it's not that at one more at sea your time's up but i want to ask you one more specific question a long lens of what i ask you better earlier why isn't it in the interest of the considered in the overall context i just don't see what the court gets out in terms of indicating it's of authority have that is further by the could be if the arrest needs to remain in the f b i s records for its own purposes presumably that something it could order but it can tell the f b i naturally said two other people part of what the government is doing here and in similar cases is they well they could do it to the extent until somebody the same thing they could give out the same information if they didn't happen to be a court case they could give out the same information but then presumably someone would have an action under another form denied civil relief there too well but if they're going to deny civil relief there are they going to deny civil relief and in the case that never result that never mature into a prosecution well i would argue the answer for more available if anything i agree your honor but i don't think that whether or not that's available has any bearing on whether or not there's answers to action under the criminal case and i think that there is ancillary jurisdiction because the government here is trying to mean it does in that it holds that what they did was illegal and there are consequences for those actions and one of the consequences is they can't use that evidence against that person in a prosecution and they certainly shouldn't be able to obtain the benefits of a prosecutor i want to pick up where you left off with respect to what what ms fields options are which is really doing here is to create and run around agency procedures that were available that that's not what's happened here the f b i has an obligation under statute passed by congress to collect these records and to disseminate them to limited authorized entities and this is exactly the kind of information that congress wanted do which is arrested and disposition records of those authorized and of these include federally insured banks that nuclear regulatory commission if anything you would think a bank would want to know that ms fields was a one time arrested betting after the fact except for after the fact of a bank robbery that you concealed bank robbery proceeds to nurture it from the f b i if the bank wants to hire now extending that fine but this make sure that information gets to they want to ask  mercy sympathetic in your case but there certainly seems to be a problem out there with these websites which anyone can go to and find out that someone was arrested and if their arrest is totally on wanted seems like something that the law should address all branch of field could bring an action against those entities it or to some event information but she's going to hear she can't do that through the underlying criminal case can hail the third party into the underlying criminal case were fourteen years after her conviction it was actually difficult to prove this the records are so old you indicated that your d d s demand for your arrest record and disposition records  very short computer printout identifies that the charges that were brought to date the individual was arrested or simply appeared received and then the ultimate disposition of those charges it's not a lengthy and gauging and misconduct in the underlying litigation that allows the court to assume authority over those attorneys in order of contempt or otherwise but that's simply not the case here the court's orders were to suppress didn't apparently seek civil action to try to get injunctive relief against the f b i apparently had some communications with the f b i about through the agency procedures of trying to correct the legend accuracy in the record she has not appealed that to the federal court so there's not jurisdiction in that sense so this is an end run around all those avenues which would be free of any statue limitations issues for a normal civil action to get injun how far a court can extend its authority and we don't need to go that far here we don't need to stretch beyond what we see to already hella quite broadly and i think quite knowingly it's not an unexamined issue when the other circuits at the time have already the issue of unconstitutional or since it possible for us to rule in your favor without saying anything about the ability of a court to expunge its own records yes because the only records field is challenged is the f b i record that led to her finally her proceed aspect as a lot of the cases that get cited have to do with not all but a lot of them have to do with expungement of convictions which are the court's on records to raise one issue just to pass it to the extent the underlying constitutional violation is alleged grounds for subject matter jurisdiction i can't wait it so the issue of whether they're in fact honor whether now that ms field has potential remedies elsewhere and i'm not sure that she does but whether or not she does not determine whether or not there's insulators direction also the fact that the there's a separate statute requiring the i to keep certain records doesn't mean again that there is no ancillary jurisdiction for a core inappropriate narrowly tailored circumstance to instruct the f b i about who they might release those records to and there's the assumption that ms field would have been found guilty under these facts simply cannot be made there are a number of arguments that would be made to judge m and it's important member to that the government dismissed its case against mr johnson they boyfriend they've got miss field wrapped up in all of this i'm claiming that there is a buford problem although i frankly cannot understand why they would dismiss at this stage  dismissed against mr johnson let's there were other problems with the case so i think that we cannot make the assumption that ms field would be found guilty or somehow not entitled to a negative remedy here the idea that this is an on examine issue having been the area in the attorney who argued for the appellant pair but the big court does not examine it and the record and by its own statements the fact that it was not examined there in the opinion does nat permit this court to consider lucio as presidential or binding on this issue i think your honor that to say that there is never a situation where a statute eventually held illegal or very egregious unconstitutional unlawful treatment of a defendant could not lead to expungement i think to make that broad statement is to rule out cases which very well