Mhammad Abu-Shawish v. United States
898 F.3d 726
| 7th Cir. | 2018Background
- Mhammad Abu-Shawish, founder of a Milwaukee nonprofit, obtained a city grant for a development plan later alleged to be essentially identical to another plan; funds originated with HUD.
- He was convicted in 2005 under the federal program-fraud statute (18 U.S.C. § 666) and sentenced to three years and restitution; he served the full term.
- This court vacated that conviction because § 666 requires the defendant to be an agent of the defrauded organization, which Abu-Shawish was not; the opinion observed evidence might support other federal charges. 507 F.3d 550 (7th Cir. 2007).
- On remand Abu-Shawish was reindicted on mail-fraud and related charges and was acquitted at a second trial in 2008.
- In 2015 he petitioned the district court for a certificate of innocence under 28 U.S.C. §§ 1495 and 2513 (a prerequisite to a damages claim in the Court of Federal Claims); the district court dismissed the petition without government response, requiring evidence at pleading stage.
- The Seventh Circuit vacated that dismissal and remanded, holding the district court applied too rigorous a pleading/evidentiary standard, and requiring the court to give both sides opportunity to present evidence and make an independent finding on actual innocence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for pleadings in §2513 certificate-of-innocence petitions | Abu-Shawish: Rule 8’s short-and-plain-statement applies; no evidentiary showing required to survive initial pleading; pro se filings construed liberally | Government: (did not respond in district court; implied need for proof of actual innocence) | Court: Rule 8 applies; district court erred by requiring evidence at pleading stage and should have allowed response/amendment |
| Burden of proof to obtain certificate of innocence | Abu-Shawish: meets §2513(a) prerequisites (conviction vacated; acquitted on retrial; did not cause prosecution) | Government: (not contended on causation; argued merits relevant) | Court: Petitioner bears preponderance-of-evidence burden on actual innocence at merits stage; but dismissal without opportunity to present evidence was improper |
| Effect of prior appellate reversal/acquittal on certificate claim | Abu-Shawish: reversal and acquittal support claim of actual innocence | Government/district court: prior reversal/acquittal do not automatically establish innocence; trial evidence suggests fraud | Court: Reversal/acquittal do not resolve §2513’s second requirement; district court must make independent determination of factual innocence based on evidence from both sides |
| Procedural process and remedies after dismissal | Abu-Shawish: dismissal without government response or leave to amend was unfair | Government: no argument district court’s dismissal was time-barred; focused on statute of limitations for damages claim | Court: Vacated dismissal; remanded for the district court to allow government response, receive evidence, make findings under Rule 52, and then issue or deny a certificate of innocence as appropriate |
Key Cases Cited
- United States v. Abu-Shawish, 507 F.3d 550 (7th Cir. 2007) (appellate opinion vacating §666 conviction because defendant was not an agent of the defrauded entity)
- Pulungan v. United States, 722 F.3d 983 (7th Cir. 2013) (discussing burdens and strict construction of §2513; reversal does not automatically prove innocence)
- Betts v. United States, 10 F.3d 1278 (7th Cir. 1993) (holding district court abused discretion where petitioner met statutory burden; explains independent-determination requirement)
- United States v. Grubbs, 773 F.3d 726 (6th Cir. 2014) (resolving certificate petition on trial record where petitioner elected not to add evidence)
- United States v. Mills, 773 F.3d 563 (4th Cir. 2014) (explaining §2513(a)’s requirements and rigor of statutory burden)