228 F. Supp. 3d 878
E.D. Wis.2017Background
- In 2001 Abu‑Shawish received a City of Milwaukee grant for a nonprofit project but an audit found he diverted funds and he submitted a largely plagiarized development plan. He was charged with federal program fraud (18 U.S.C. § 666) and convicted by a jury in 2005 and sentenced to 3 years.
- The Seventh Circuit vacated that conviction in 2007, concluding he was charged under the wrong statute because he was not an agent of the City, and observed the evidence still showed he defrauded the City (suggesting mail/wire fraud would have been a proper charge).
- On remand the § 666 indictment was dismissed. The government subsequently prosecuted him in a separate case for mail fraud and interstate transportation of stolen goods; a jury acquitted him of those charges in 2008.
- Abu‑Shawish filed a petition in this district seeking a certificate of innocence under 28 U.S.C. § 2513(b) (to support a damages suit in the Court of Federal Claims). He relied on the appellate reversal and the later acquittal.
- The Court of Federal Claims previously dismissed his damages suit, finding he had not met § 2513(a)’s showing of actual innocence.
- This district court independently reviewed the record and denied the § 2513(b) petition, concluding Abu‑Shawish failed to prove by a preponderance that he was innocent of any crime based on the conduct at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certificate of innocence under 28 U.S.C. § 2513(b) should issue | Abu‑Shawish: appellate vacatur + later acquittal establish actual innocence and entitlement to a certificate | Government: vacatur and acquittal do not prove actual innocence of any offense; petitioner bears burden to prove innocence by preponderance | Denied — petitioner failed to meet § 2513(a) burden to show actual innocence |
| Whether reversal of conviction for charging the wrong statute establishes actual innocence | Abu‑Shawish: appellate reversal shows he is not guilty of the charged offense and thus proves innocence | Government/Court: reversal for wrong statutory charge shows failure of proof as to that statute but not that conduct did not constitute other crimes | Reversal alone insufficient to prove innocence under § 2513(a) |
| Whether acquittal in a later, related prosecution establishes actual innocence of the conduct | Abu‑Shawish: acquittal on mail/wire fraud confirms he did not commit a crime based on that conduct | Government/Court: acquittal reflects failure of proof beyond a reasonable doubt, not affirmative proof of factual innocence; record does not show conduct "did not constitute a crime" | |
| Whether an evidentiary hearing was required before denying the petition | Abu‑Shawish: (did not request hearing) implicitly argues record suffices | Government/Court: no basis for sua sponte hearing; petitioner presented no sworn evidence or specific basis demonstrating need for hearing | No hearing; court declines to hold one sua sponte given lack of evidentiary showing |
Key Cases Cited
- Pulungan v. United States, 722 F.3d 983 (7th Cir.) (reversal for insufficiency does not necessarily establish innocence)
- Betts v. United States, 10 F.3d 1278 (7th Cir.) (certificate requires court to find petitioner truly innocent of any offense arising from the acts)
- Grubbs v. United States, 773 F.3d 726 (6th Cir.) (petitioner bears burdens of production and persuasion in § 2513 proceedings; district court may rely primarily on trial record)
- United States v. Abu‑Shawish, 507 F.3d 550 (7th Cir.) (appellate vacatur of § 666 conviction because defendant was not an agent; evidence still showed fraud)
- CIGNA Corp. v. Amara, 563 U.S. 421 (Supreme Court) (civil standard of proof and factfinding principles referenced for civil proceedings)
- United States v. Seidling, 737 F.3d 1155 (7th Cir.) (elements of mail fraud require use of mail and intent to defraud)
- United States v. Mills, 773 F.3d 563 (4th Cir.) (§ 2513 protections intended to compensate only truly innocent petitioners)
- Osborn v. United States, 322 F.2d 835 (5th Cir.) (claimant must be innocent of the particular charge and of any other offense his acts might constitute)