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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16251
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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This is in regards XXXXX XXXXX expungment that I had granted a couple

Customer Question

This is in regards XXXXX XXXXX expungment that I had granted a couple of years ago..
I am applying to become a mortgage broker in my state. This is a very regulated industry and one must undergo a criminal background check (performed by the FBI). The offense that I got expunged in my State was for concealment. (shoplifting). The disposition of the matter ended up receiving a deferred prosecution, so no conviction.
One of the questions that the licensing application asks in its criminal disclosure section is:

Have you ever been convicted of or pled guilty or nolo
contendere ("no contest") in a domestic, foreign, or military
court to any criminal offense involving dishonesty, breach of
trust, or money laundering or agreed to enter into a pretrial
diversion or similar program in connection with the
prosecution of such offense(s)?

Since an expungment seals a charge, am I obligated to select YES?

Thank you in advance....
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Hello Jacustomer,

You would be expected to answer "Yes." Nothing is ever truly erased from the FBI data base, and nothing is ever hidden from the government. Government agencies, including government employers and state licensing agencies will all be able to see your arrest, your conviction, your dismissal, and your subsequent expungement.

While I'm sure that you were told that after your dismissal and expungement you would have the right to say that you've never been convicted of a crime, there are times when you must of necessity disclose it. This is one of them. If you stand on your right, it makes you look a lot less honest than if you owned up in the first place to what they can already see for themselves.

Good luck!
Customer: replied 3 years ago.

I understand your response on the moral/ethics grounds, however, my livelihood is depending on this license:

Here is some information that I found on NC expungment procedures:

The arresting agency deletes the record from their files and attaches a Final Disposition Report (R-84) form. The arresting agency then forwards the Order to the SBI where it is processed. The SBI notifies the FBI to remove their record.

Note, I already confirmed that the SBI has removed this from their records.

Expert:  Zoey_ JD replied 3 years ago.
Jacustomer,

I understand your point too. There are two schools of thought as to this. That SBI orders the FBI to remove it does not mean the FBI will comply, although one hopes it would. The Federal government has its own interests for keeping records in their data base, and those may override state concerns.

You have the right under the law to deny you were ever convicted of a crime. By all means if you are more comfortable standing on that right, do so. It would not be fraudulent. If the FBI complies with what the SBI asked for you should get your license.
Customer: replied 3 years ago.
Relist: Answer quality.
Expert:  Zoey_ JD replied 3 years ago.
Hello,

I see that you have relisted the question. I will opt out to see if another expert wants to take it on. However, I doubt that the answer you want is to be had. Nobody can possibly guarantee what the Federal government will actually do, only what they have been asked to do. Federal law trumps state law and if as a matter of policy it chooses to count a diversion disposition as a conviction, they will.

Good luck with your application.

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