Seventh Circuit Reverses Denial of a Certificate of Innocence Needed as a Prerequisite for Damages for an Unjust Conviction and Imprisonment
In Abu-Shawish, the Seventh Circuit addressed a little known and little used Federal proceeding that gives people who have been unjustly convicted and imprisoned for a Federal crime a damage remedy against the United States. Here, after the Court’s recitation of the colorful history of the two governing statutes, 18 U.S.C. §§ 1495 and 2513, it authorized the issuance of a Certificate of Innocence, a prerequisite to the damages claim against the United States under those statutes.
In so ruling, the Court rejected the district court’s dismissal of the Petition for the Certificate, concluding that it had applied “a standard that is too rigorous for the pleading stage of what is, in essence, a new civil case embedded with a closed criminal case.” Abu-Shawish v. United States, 898 F.3d 726 (7th Cir. July 31, 2018) (Judge David F. Hamilton)
In this comprehensive decision, Judge Hamilton has given us the complete “Certificate of Innocence Guide for Dummies.” He did that in the context of authorizing the issuance of a Certificate of Innocence pursuant to 18 U.S.C. § 2513(b) — a prerequisite to the recovery of damages against the United States for an unjust conviction and imprisonment under 18 U.S.C. §§ 1495 and 2513.
The first of those statutes gives the Court of Federal Claims jurisdiction over “any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.” 28 U.S.C. § 1495. The second establishes what a petitioner must prove and how and where a petitioner must prove it to establish the damages claim. (28 U.S.C. § 2513). Section 2513(a) includes two paragraphs that impose distinct requirements for what a petitioner must allege and prove:
“First, the petitioner must establish that the record of the court setting aside or reversing his conviction demonstrates that the court did so on the ground that he is not guilty of the offense for which he was convicted. Second, the petitioner must prove that he did not commit any of the acts charged, or that those acts or related acts constituted no crime against the United States, or any State, Territory or the District of Columbia. Third, the petitioner must demonstrate that he did not by misconduct or neglect cause or bring about his own prosecution.” (Id., at 733).
The petitioner proves those requirements to the Court of Claims by submitting a Certificate of Innocence from the court of conviction. To obtain that certificate in the court of conviction, the petitioner bears the “burdens of production and persuasion.” That creates such a high bar for any petitioner that Judge Hamilton wrote:
“Out of twelve published appellate opinions with material treatment of § 2513, our opinion in Betts [Betts v. United States, 10 F.3d 1278 (7th Cir. Nov. 29, 1993))] is the only one to reverse and remand with instructions to grant the petition [for a Certificate of Innocence]. (Id., at 733).
The Petitioner in this case, Mhammad Abu-Shawish, was tried and convicted on a Federal program fraud charge under 18 U.S.C. § 666(a)(1)(A); and he was sentenced to three years in prison. On appeal, Abu-Sawish’s conviction was reversed and vacated after he had served his entire prison sentence. ((See, United States v. Abu-Shawish, 507 F.3d 550 (7th Cir. 2007)). A grand jury then indicted Abu-Shawish again—this time under related charges of mail fraud (18 U.S.C. § 1341) and transporting, in foreign commerce, funds obtained by fraud (18 U.S.C. § 2314). The case went to trial in 2008. This time the jury found Abu-Shawish not guilty.
In 2014, Abu-Shawish filed a complaint against the U.S. Court of Federal Claims pursuant to 28 U.S.C. §§ 1495 and 2513 seeking damages for unjust conviction and imprisonment. That Court dismissed without prejudice for lack of jurisdiction because Abu-Shawish had not yet obtained a certificate of innocence, which § 2513 requires him to seek from the court where he was convicted.
In November 2015, Abu-Shawish went back to the district court in Wisconsin and filed a pro se petition for a certificate of innocence. The petition alleged that the Seventh Circuit had vacated the conviction on the federal program fraud charge, that the jury acquitted Abu-Shawish on the charges of mail fraud and transporting stolen funds in foreign commerce in the second trial, and that this acquittal proves Abu-Shawish “was and still is innocent of the charged offenses and of any fraud.”
After more than three months with no docket activity, Abu-Shawish filed a motion to expedite a decision on his petition. The Government never responded to the original petition or to the motion to expedite. The district court dismissed the petition in January 2017. (See, U.S. v. Abu-Shawish, 228 F. Supp. 3d 878 (E.D. Wis. 2017)). Abu-Shawish again appealed to the Seventh Circuit, which vacated the district court’s dismissal of Abu-Shawish’s petition and remanded the case back to the district court. It wrote in part:
“The district court has considerable discretion in managing a case like this toward a fair disposition, but Abu-Shawish received no meaningful opportunity to be heard. His petition was dismissed without any response from the government, without any briefing or hearing, and by imposing a pleading standard not compatible with civil proceedings and without an opportunity to try to cure the pleading defects identified by the district court.
“The bar for obtaining a certificate of innocence is high, but the district court applied too stringent a standard to Abu-Shawish’s pro se pleading. As the government acknowledges, Federal Rule of Civil Procedure 8 provides the applicable standard for this civil proceeding. It requires only ‘a short and plain statement’ of a claim. And because Abu-Shawish was proceeding pro se, the district court should have construed his petition liberally. . . .
“The district court set the bar too high by applying what seems to have been a heightened evidentiary standard at the pleading stage. . . . We do not see a defect in Abu-Shawish’s petition. “ (Id., at 737-38).
The Circuit Court also gave some specific instructions to the district court about what it should and should not do on remand. For example, it noted that the district court had stated the Seventh Circuit’s earlier opinion reversing Abu-Shawish’s first conviction “forecloses” Abu-Shawish’s argument that his conduct was not criminal. Judge Hamilton responded:
“That is not correct. Whether the evidence was sufficient to support a finding of guilt is not the test for a certificate of innocence. The court must decide whether the petitioner has shown that he did not—in fact—commit a crime. Statements about the sufficiency of evidence do not offer a shortcut around that question.” (Id., at 739).
The district court also wrote that “it cannot be said that Abu-Shawish’s ‘conduct ... did not constitute a crime’.” Judge Hamilton again rejected that conclusion, stating:
“That statement addresses the ultimate issue in this case, but it came before Abu-Shawish had a fair opportunity to be heard on his petition. The district court based that statement on our reversal of Abu-Shawish’s conviction, the evidence presented at the first trial, and AbuShawish’s second trial, without giving Abu-Shawish an opportunity to present additional evidence. Also, the district court’s review of the second trial was necessarily limited because the transcript did not exist at the time of the court’s order. We understand the district court’s skepticism, but Abu-Shawish is entitled to a fair opportunity to be heard. When the court decides the case on the merits, it will need to explain its ultimate decision with reviewable findings of fact under Rule 52 and will need to make the independent determination Betts requires.” (Id., at 740)
This article originally appeared in the December 2018 issue of Punch & Jurists and is reprinted with permission, with minor edits. Copyright, Punch & Jurists.
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