Damages – Certificate of Innocence

Listen to this article

7^th Circuit Court of Appeals

Case Name: Mhammad Abu-Shawish v. United States of America

Case No.: 17-1283

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: Damages – Certificate of Innocence

Petitioner-appellant 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 acquitted 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.

In 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).

We 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 statutes.

Vacated and Remanded

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.