USA v. Torres et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v. 	Case No. 12-CR-10187-02-EFM
DIANNE PANTOJA-CORRAL,
Defendant-Petitioner.
MEMORANDUM AND ORDER
Before the Court is pro se Defendant-Petitioner Dianne Pantoja-Corral’s Motion to
Expunge her Criminal Record (Doc. 108). Specifically, Pantoja-Corral seeks to expunge her 2013
conviction by guilty plea for making a false statement to a government agency in violation of 18
U.S.C. § 1001(a)(2). The Government opposes Pantoja-Corral’s Motion. For the reasons stated
below, the Court is unable to expunge Pantoja-Corral’s record and denies her Motion.
I. 	Factual and Procedural Background
On July 20, 2012, Pantoja-Corral was a passenger in a vehicle stopped by a Kansas
Highway Patrol (“KHP”) Trooper on I-70 in Ellis County, Kansas. The driver consented to a search
of the vehicle, and the Trooper discovered a false compartment containing approximately 19
pounds of methamphetamine. Pantoja-Corral was arrested alongside the vehicle’s occupants.
After being arrested, KHP Trooper and Drug Enforcement Administration Agent Doug
Rule interviewed Pantoja-Corral. When asked if she knew about the methamphetamine, Pantoja-
Corral stated she was unaware of it and that the driver had simply invited her to travel from Kansas
City to Las Vegas with him. Trooper Rule recognized Pantoja-Corral as a passenger from a
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previous vehicle stop involving the same driver and asked her if she had been stopped by KHP
before. Pantoja-Corral denied she was involved in an earlier stop and denied that she had traveled
to any other locations with the driver before. Trooper Rule then examined Pantoja-Corral’s and
the driver’s phones and discovered pictures of the two of them in Los Angeles. After Trooper Rule
confronted her with his knowledge of the previous stop, Pantoja-Corral admitted she had
previously traveled with the driver to Los Angeles and that KHP had previously stopped them,
stating she had forgotten about it.
A grand jury returned an indictment against Pantoja-Corral on two drug counts and a third
count of making a false statement to a government agency on August 14, 2012. Pantoja-Corral
pled guilty to the false statement charge on November 27, 2012, and the Government dropped the
two drug charges. As part of her plea, Pantoja-Corral agreed that the false statement she made
regarding travel to Los Angeles was material because it impeded the drug investigation.
The Court held a sentencing hearing and sentenced Pantoja-Corral to time served. At the
close of the hearing, the Court also made the following statement:
The Court has one other statement it wishes to make on the record, and I would like
these statements to be delivered to Immigration and Customs Enforcement. The
defendant has pled guilty to a crime for which she was charged, but in this Court’s
opinion that crime should never have been charged against the defendant. I consider
this—and I speak from experience—as having been an abuse of prosecutorial
discretion to have brought this particular charge against the defendant on the facts
which were presented to the court.
I would like this Court’s opinion to be delivered to the immigration officials, that I
do not think this charge should have been brought, I do not consider this client—or
this defendant one who should have been subjected to deportation. I’m following
the law, as I’m required to do, and the decision to prosecute in this case is a decision
vested with the United States Attorney’s Office. I recognize that and I follow that.
In my opinion, it was a bad decision and I would like these comments delivered to
the immigration officials.
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Relying on the Court’s statement, Pantoja-Corral now moves for expungement of her
conviction. She reports in the 13 years since her conviction she has operated a successful
consulting business and has not been arrested, charged, or convicted of any other offense. She also
reports her conviction threatens to prevent her from obtaining a notary certification and creates
other barriers. The Government opposes Pantoja-Corral’s request.
II. 	Legal Standards
Although district courts generally lack statutory authority to expunge criminal records, the
Tenth Circuit recognizes courts possess inherent equitable authority to order expungement in select
circumstances.1 This inherent power is “committed to the discretion of the trial court, but it is not
a remedy to be granted frequently.” 2 “Nevertheless, the power is a narrow one, reserved for
extreme cases.”3 This particularly true when a petitioner seeks to expunge a criminal conviction
as opposed to an arrest record.4
The Tenth Circuit has articulated a four-step test to determine whether expungement of a
criminal conviction is proper.5 At step one, a petitioner must allege that the conviction “is legally
infirm or was secured through improper government conduct.”6 Upon doing so, at step two, a
petitioner must also “establish that his or her averments are grounded in fact through some sort of
1 See United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993).
2 United States v. Friesen, 853 F.2d 816, 817–18 (10th Cir. 1988).
3 Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir. 1977) (citing United States v. Linn, 513 F.2d 925, 927
(10th Cir. 1975)).
4 See Pinto, 1 F.3d at 1070 (“[T]here 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.”).
5 See United States v. Trzaska, 781 F. App’x 697, 701–03 (10th Cir. 2019); see also Shook v. United States,
2021 WL 4847384, at *21 (D.N.M. Oct. 18, 2021).
6 Trzaska, 781 F. App’x at 700–01.
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evidentiary showing.” 7 If a petitioner makes these successful showings, the court steps in at step
three to balance “the interests of the State in maintaining records of law enforcement against the
individual’s rights.”8 If the balancing test weighs in the petitioner’s favor, the court turns to step
four 	and 	evaluates 	whether 	there 	are 	“unusually 	compelling 	circumstances” 	warranting
expungement.9 All four steps must weigh in the petitioner’s favor to grant expungement.10
Because Pantoja-Corral proceeds pro se, the Court holds her pleadings to “less stringent
standards than formal pleadings drafted by lawyers.”11 A pro se litigant is entitled to a liberal
construction of her pleadings. 12 But it is not the proper role of a district court to “assume the role
of advocate for the pro se litigant.”13
III. 	Analysis
Pantoja-Corral is unable to establish that she is entitled to expungement under the Tenth
Circuit’s four-step test to expunge a criminal record. Pantoja-Corral addresses her burden at step
one by alleging her conviction is a result of government misconduct. To support her claim at step
two, she cites the Court’s statement at the sentencing hearing opining the Government engaged in
“an abuse of prosecutorial discretion” by charging her with making a false statement. She also
argues the Government’s dismissal of the two drug charges further demonstrates the Government’s
7 Id. at 701.
8 Id. at 702 (citing Bromley, 561 F.2d at 1364; Linn, 513 F.2d at 927).
9 Id. at 703 (citing Friesen, 853 F.2d at 818).
10 See United States v. Henley, 2022 WL 16854277, at *2 (D. Kan. Nov. 10, 2022) (“Courts routinely deny
motions seeking an expungement when a defendant fails to make a sufficient showing for all four factors.”) (collecting
cases). 11 Haines v. Kerner, 404 U.S. 519, 520 (1942).
12 See Trackwell v. U.S. Gov’t, 474 F.3d 1242, 1243 (10th Cir. 2007) (“Because Mr. Trackwell appears pro
se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by
attorneys.”).
13 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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impropriety. But neither the Court’s statement nor the Government’s dismissals are facts
demonstrating that Pantoja-Corral’s conviction is a result of government misconduct.
Article II of the U.S. Constitution vests the President with the duty to “take Care that the
Laws be faithfully executed.”14 To do so, the President exercises the power to enforce the Nation’s
criminal laws through the Attorney General and United States Attorneys Office.15 Thus, “[t]he
Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s
criminal laws.” 16 A prosecutor’s discretion is “subject to constitutional constraints.”17 “But in the
ordinary case, so long as the prosecutor has probable cause, ‘the decision on whether or not to
prosecute . . . generally rests entirely in his discretion.’”18 A prosecutor is afforded a similar level
of discretion to drop charges in exchange for plea agreements.19
Here, the Court stands by its opinion that the Government abused its discretion in charging
Pantoja-Corral the way it did. But as the Court recognized at her sentencing hearing, “the decision
to prosecute in this case is a decision vested with the United States Attorney’s Office,” not the
Court. Thus, the Court’s opinion is not a fact Pantoja-Corral can rely on to demonstrate her
conviction is a result of government misconduct. While the Court was unhappy that these charges
had been filed, it was clear that Pantoja-Corral did in fact commit the crime of making a false
14 U.S. CONST. Art. II § 3.
15 28 U.S.C. §§ 516, 547.
16 United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks and citation omitted).
17 Id. (citing United States v. Batchelder, 442 U.S. 114, 125 (1979)).
18 United States v. Zamora, 136 F.4th 1278, 1282 n.3 (citing Batchelder, 442 U.S. at 125).
19 See United States v. Vanderwerff, 788 F.3d 1266, 1271–72 (“[I]n charge bargains, ‘a court’s sentencing
discretion is implicated . . . in precisely the same manner it is implicated by prosecutorial decisions to bring charges
in the first place, where prosecutorial discretion is nearly absolute.’ ‘Thus, while district courts may reject charge
bargains in the sound exercise of judicial discretion, concerns relating to the doctrine of separation of powers counsel
hesitancy before second-guessing prosecutorial choices.’”) (quoting United States v. Robertson, 45 F.3d 1423, 1438
(10th Cir. 1995)).
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statement. 	The fact that the Court did not think that crime should have been charged does not
change the fact that the crime was committed, and the United States Attorney’s Office elected to
indict that charge, as was its Constitutional prerogative.
Similarly, the Government’s dismissal of the drug charges was within its discretion and
does not demonstrate government misconduct. Pantoja-Corral does not argue the Government
lacked probable cause to charge her with making a false statement, nor does she allege any
constitutional constraint the Government violated in doing so. Thus, Pantoja-Corral’s request for
expungement fails at step two.
The Court commends Pantoja-Corral for her success in the 13 years since her conviction.
But her case does not overcome the heavy presumption against expungement or otherwise present
“unusually compelling circumstances” as articulated above. Accordingly, the Court is unable to
expunge Pantoja-Corral’s record.
IT IS THEREFORE ORDERED that Pantoja-Corral’s Motion to Expunge Criminal
Record (Doc. 108) is DENIED.
IT IS SO ORDERED.
Dated this 15th day of April, 2026.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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