April 5, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 03-CR-211-1-JPS - J.P.
Kanne, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Mhammad Abu-Shawish was tried and convicted on a federal
fraud charge, but that conviction was reversed after he
served the entire prison sentence. Abu-Shawish was acquited
in a second trial. He now seeks damages under 28 U.S.C.
§ 1495 and § 2513 for unjust conviction and
imprisonment. Abu-Shawish petitioned for a certificate of
innocence-a prerequisite to a damages claim against the
United States under those statutes.
this appeal, the government is in the unusual position of
defending a dismissal it never requested. Without any
response from the government, the district court dismissed
the petition, reasoning that Abu-Shawish failed to provide
evidence of his actual innocence. United States v.
Abu-Shawish, 228 F.Supp.3d 878, 883-84 (E.D. Wis. 2017).
vacate the dismissal and remand for further proceedings. The
district court applied a standard that is too rigorous for
the pleading stage of what is, in essence, a new civil case
embedded within a closed criminal case. In the end, the
question in this proceeding is whether Abu-Shawish can show
by a preponderance of the evidence that he was in fact not
guilty of a crime, not whether the trial evidence would have
allowed a conviction. This is not to say that Abu-Shawish is
entitled to relief, but he must be given a fair opportunity
to show that he is entitled to damages under the governing
Factual and Procedural Background
was the founder and executive director of a Milwaukee-based
non-profit organization. United States v.
Abu-Shawish, 507 F.3d 550, 552 (7th Cir. 2007). On
behalf of that non-profit, Abu-Shawish sought and received a
grant from the City of Milwaukee to create a plan for
revitalizing a street in Milwaukee. The problem was that the
development plan from Abu-Shawish's non-profit was
"essentially identical" to a plan submited by
someone else and sponsored by a separate group. Id.
at 553. The funds for the grant came from the United States
Department of Housing and Urban Development, id. at
552, which explains why a local grant proposal ultimately
piqued the interest of federal prosecutors.
theory that Abu-Shawish took the government's money but
gave it nothing it had not already paid for, the government
charged him with federal program fraud under 18 U.S.C. §
666(a)(1)(A). A jury convicted Abu-Shawish in 2005. The
district court sentenced Abu-Shawish to three years in prison
and ordered him to pay $75, 000 in restitution to the City of
Milwaukee, $1, 000 in fines, and a $100 assessment.
Abu-Shawish served the full sentence.
vacated Abu-Shawish's conviction. Abu-Shawish,
507 F.3d at 558. We held that the government charged
Abu-Shaw-ish with the wrong crime because the federal program
fraud statute requires that the defendant be an agent of the
defrauded organization. Id. at 556. Because
Abu-Shawish was not an agent of the City of Milwaukee, and
because the indictment did not indicate that Abu-Shawish
defrauded his own non-profit, he could not be charged under
the federal program fraud statute. See id. at 558.
Our opinion went on to say that "the indictment properly
alleged and the evidence was sufficient to show that
Abu-Shawish defrauded the City of Milwaukee."
Id. We noted that the government likely could have
charged Abu-Shawish with mail or wire fraud. Id.
remand, the district court dismissed the indictment for
federal program fraud. A grand jury indicted Abu-Shawish
again-this time as a principal under 18 U.S.C. § 2 on
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-Shaw-ish not guilty.
Certificate of Innocence Filings
2014, Abu-Shawish filed a complaint against the United States
in the Court of Federal Claims pursuant to 28 U.S.C. §
1495 and § 2513 seeking damages for
unjust conviction and imprisonment. Abu-Shawish v. United
States, 120 Fed.Cl. 812, 812 (2015). Abu-Shawish filed
that complaint after unsuccessfully suing the government and
individual defendants for malicious prosecution and other
torts. See Abu-Shawish v. United States, 546
Fed.Appx. 576 (7th Cir. 2013). The Court of Federal Claims
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. Abu-Shawish, 120 Fed.Cl. at 812,
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 alleges that this court
vacated the conviction on the federal program fraud charge,
that the jury acquited Abu-Shawish on the charges of mail
fraud and transporting stolen funds in foreign commerce in
the second trial, and that this acquital 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 ...