Appeals Court Reverses Hauk’s Expunging of Criminal Record : Law: Reservist had sought action so that he could rejoin unit and fight in the Persian Gulf War. Panel says circumstances did not warrant annulment of convictions.

A federal appeals court has reversed a controversial decision by a Los Angeles judge to expunge an Army reservist’s criminal convictions so that he could accompany his unit to the Persian Gulf War.

In a brief, unanimous decision made public Friday, the U.S. 9th Circuit Court of Appeals vacated the decision of veteran U.S. District Judge A. Andrew Hauk to annul the criminal record of James Patrick Smith, 45.

At the hearing on Aug. 24, over the vigorous objections of federal prosecutor Stephen A. Mansfield, Hauk expunged Smith’s four 1982 felony convictions on charges of conspiracy and falsifying credit union loan documents.

Legal experts said the case raised an important issue--the power of a federal judge to expunge a criminal record, an authority which usually is more limited in federal courts than in state courts.

The case received additional attention because of a rambling speech Hauk made from the bench, in which he talked about military strategy, the virtues of nuclear war and the vices of Saddam Hussein. Hauk, 78, described how he had once urged President Lyndon B. Johnson to “drop an atom bomb on Vietnam, North Vietnam that is. I think the world would go for it because it shows decisiveness and courage.” The judge also said he would have volunteered to serve in the Mideast against Iraqi forces if he were younger.

Last summer, as a military buildup began in the Persian Gulf, Smith had written to Hauk and asked him to expunge his convictions, stating that he wanted to rejoin a San Bernardino-based Army reserve unit.

“It is my primary desire to continue in the service of my country, especially in view of the present times,” Smith wrote. He said an expungement “would allow my immediate re-enlistment in the U.S. Army Active Reserves.”

Mansfield, an assistant U.S. attorney, said at the August hearing that Smith could be activated for duty without an expungement and submitted statements from Army officials to that effect.

But Hauk said that federal judges “have the inherent equitable power to expunge criminal records in a special case.” He said that Smith “demonstrated that his crime was a thoughtless aberration” and that he successfully completed his probation.

Seven years earlier, Hauk had sentenced Smith to five years probation on each count, to run concurrently. Smith was convicted shortly after he had passed the California State Bar examination. Later, he was disbarred. He currently has an application pending for readmission to the State Bar. The lawyer handling that matter for him said it would help his case with the Bar if the conviction were expunged.

Hauk urged Smith to try to regain his license to practice law.

“That, I would think would be uppermost in his mind unless he’s so gung-ho he wants to go chop off the head of our great friend Saddam Hussein . . . who’s a liar and a bum and in my book is going to be destroyed by surgical strikes,” the judge said, just eight days after Iraq had invaded Kuwait.

Smith rejoined the Reserves and his unit was activated during the Persian Gulf War, but he did not go to Iraq, according to one of his attorneys.

At a hearing June 3, federal appeals court judges indicated they were troubled by Hauk’s actions. The judge “was more or less overcome by patriotism that this man wanted to go serve in the war,” said Circuit Judge Robert Boochever.

The judges went so far as to tell prosecutor Mansfield that he did not even need to complete his oral argument urging that Hauk be overturned.

In the decision issued this week, the appeals panel made short shrift of Hauk’s contention that he had the inherent power to expunge the conviction.

“In this Circuit, a district court’s power to expunge criminal records is reserved for the extraordinary cases in which government misconduct, unconstitutionality or lack of statutory authority taints a conviction,” wrote judges Betty Fletcher, William Canby and Boochever. “Faced with the conceded absence of any of these here, we must vacate the order of expunction.”

The appellate judges acknowledged that the Washington Circuit Court had recognized one additional circumstance under which expunction might be appropriate--when “unusually substantial harm to the defendant not in any way attributable to him” may occur.

However, the judges said that they did not need to decide whether such a factor applies in this Circuit Court “because even assuming it does, it affords Smith no relief.”

The judges said the harms alleged by Smith and noted by Judge Hauk, “including disbarment and a possible prohibition against re-enlistment, are not ‘unusually substantial.’ Instead, they are the natural and intended collateral consequences of having been convicted. Were we to deem them ‘unusually substantial,’ expunction would no longer be the narrow, extraordinary exception, but the general rule.”

Mansfield said he was pleased with the decision because if Hauk’s ruling had been upheld, it would have set a dangerous precedent. Hauk’s decision “was based on an improper standard that would have allowed district court judges to exercise presidential pardon power,” Mansfield said.

The Times was unable to reach Smith.