                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2595

D OLI S YARIEF P ULUNGAN,
                                                Plaintiff-Appellee,
                               v.

U NITED S TATES OF A MERICA,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 11-cv-470-bbc—Barbara B. Crabb, Judge.



       A RGUED A PRIL 2, 2013—D ECIDED JULY 10, 2013




   Before E ASTERBROOK, Chief Judge, and B AUER and
F LAUM, Circuit Judges.
  E ASTERBROOK, Chief Judge.     Doli Syarief Pulungan
spent 23 months in prison for attempting to export
defense articles without a license. 22 U.S.C. §2778. Some
of that time preceded his trial. He was released after
we reversed his conviction, holding that the evidence
did not show beyond a reasonable doubt that he knew
that a license was required. 569 F.3d 326 (7th Cir. 2009).
2                                                  No. 12-2595

Pulungan then asked the district court for a certificate
of innocence, 28 U.S.C. §2513, which if issued can be
used to seek compensation through the Court of Federal
Claims. 28 U.S.C. §1495. The judge obliged, ruling that
our decision shows that he is innocent.
    Section 2513 provides:
     (a) Any person suing under section 1495 of this
     title must allege and prove that:
         (1) His conviction has been reversed or set
         aside on the ground that he is not guilty of the
         offense of which he was convicted, or on new
         trial or rehearing he was found not guilty of
         such offense, as appears from the record or
         certificate of the court setting aside or revers-
         ing such conviction, or that he has been par-
         doned upon the stated ground of innocence
         and unjust conviction and
         (2) He did not commit any of the acts charged
         or his acts, deeds, or omissions in connec-
         tion with such charge constituted no offense
         against the United States, or any State, Terri-
         tory or the District of Columbia, and he did not
         by misconduct or neglect cause or bring
         about his own prosecution.
     (b) Proof of the requisite facts shall be by a certifi-
     cate of the court or pardon wherein such facts
     are alleged to appear, and other evidence thereof
     shall not be received.
Our decision satisfies paragraph (a)(1). The district court
believed that Pulungan meets the second clause of para-
No. 12-2595                                               3

graph (a)(2): “his acts, deeds, or omissions in connec-
tion with such charge constituted no offense”.
  Pulungan tried to acquire 100 Leupold Mark 4 CQ/T
riflescopes, which he planned to export to Saudi Arabia
and transship to Indonesia. He did not secure an
export license. A license is required in order to export a
“defense article.” The Directorate of Defense Trade Con-
trols has concluded that the Leupold Mark 4 CQ/T
riflescope is a defense article under 22 C.F.R. §121.1
Category 1(f) because it is “manufactured to military
specifications”. When interrogated, Pulungan acknowl-
edged that he was trying to acquire the ‘scopes in small
lots, so that his purchases would not be noticed, and
planned to export them without seeking anyone’s permis-
sion. He contended that he did this to avoid an
embargo against arms exports to Indonesia. But the
embargo had been lifted two years before; the prosecutor
contended that Pulungan’s real reason for his surreptitious
conduct was to avoid the need for an export license
under 22 U.S.C. §2778.
   Our opinion held two things. (1) The district judge
erred in instructing the jury that the ‘scope is a defense
article as a matter of law. Because the regulation does
not specify the Mark 4’s classification, that issue is a
question of fact for the jury. (2) The evidence did not
permit a reasonable jury to find, beyond a reasonable
doubt, that (a) Pulungan knew that the Mark 4 CQ/T
riflescope is a defense article or (b) licenses are required
to export defense articles. An error in jury instructions
(issue 1) normally leads to a second trial, but a failure of
4                                               No. 12-2595

proof (issue 2) leads to an acquittal. We reversed the
conviction and remanded with instructions to enter a
judgment of acquittal.
  Pulungan committed all of the acts necessary for con-
viction (the first clause of paragraph (a)(2)), though
the jury did not determine whether the Leupold Mark 4
CQ/T riflescope is a defense article. The record would
have supported a finding that it is (there was testimony
to that effect, which the jury could have accepted). The
district judge did not hold a hearing on Pulungan’s
request for a certificate of innocence, so the defense-
article issue has not been resolved in his favor at either
the criminal trial or this civil proceeding. He cannot
prevail under the first clause of paragraph (a)(2).
  The district court relied on the second clause, ruling
that his acts “constituted no offense”. Yet if Pulungan
acted with the necessary intent, and the Mark 4 is a
defense article, he committed an offense. The district court
treated our decision that he is entitled to an acquittal as
equivalent to a decision that he did not commit a crime.
Not at all. We held that it had not been proved, beyond a
reasonable doubt, that Pulungan committed the crime. It
remains entirely possible that the ‘scopes are defense
articles, that Pulungan knew it, and that he also knew of
the need for a license. His contention that the secrecy
was attributable to a belief in a nonexistent arms
embargo to Indonesia may be a tall tale. A conclusion
that the prosecutor did not prove a charge beyond a
reasonable doubt differs from a conclusion that the de-
fendant is innocent in fact.
No. 12-2595                                                5

  Many people believe that persons who spend time
in prison without a valid conviction should be compen-
sated. That is not, however, what §1495 and §2513 do.
They compensate only persons who are actually inno-
cent—whether because they did not do what the indict-
ment charged or because what they did is not a crime.
Rigsbee v. United States, 204 F.2d 70 (D.C. Cir. 1953), holds
that, for the purpose of §2513, acquittal differs from
innocence, and every later court that has considered the
subject has agreed. We are among them. See, e.g., Betts
v. United States, 10 F.3d 1278, 1283 (7th Cir. 1993).
  Surprisingly, the district court relied on Betts for the
proposition that a defendant who has been acquitted
has been determined to be innocent. That’s not what
Betts holds. The contested issue in Betts was whether the
defendant had brought about his own prosecution, the
third clause of paragraph (a)(2). In addressing that
subject, the court remarked that Betts’s acquittal showed
that he was innocent, 10 F.3d at 1284, because of the
specific reason for his acquittal. All of the facts were
known; the only issue was legal. Betts had been convicted
of contempt for disobeying a judicial order to appear
in court. We held that the order had not been lawfully
issued. Contempt therefore was legally impossible, no
matter what Betts did or did not do. Pulungan’s convic-
tion was not legally impossible; he was charged with a
real crime. His acquittal reflected failure of proof beyond
a reasonable doubt, not (necessarily) innocence.
  The United States contends that Pulungan faces
problems under the third clause too. By his own account,
6                                               No. 12-2595

Pulungan set out to violate this nation’s law, failing only
because the embargo had been lifted (though he was
ignorant of this). He asked his contacts to prepare false
export papers; when questioned, he lied about his objec-
tives, his itinerary, and even his birthdate. He was
charged with one of the lies, concerning his travel; he
persuaded the jury that the question was ambiguous
(had the agent asked about travel on the passport he
presented, or travel on another passport that he con-
cealed?). Other lies easily could have been prosecuted
under 18 U.S.C. §1001. The prosecutor’s failure to add
charges that seemed superfluous at the time would be a
poor reason to award damages to a person whose (ulti-
mately unsuccessful) deceits are established. Pulungan
is not a person prosecuted only by mistake. Betts says
that, to come within the third clause, a person “must have
acted or failed to act in such a way as to mislead the
authorities into thinking he had committed an offense.”
10 F.3d at 1285. That seems an apt description of what
Pulungan did. Maybe appearances are deceiving, but
it would take an evidentiary hearing to support
Pulungan’s position.
   On remand, one vital question will be whether the
Leupold Mark 4 CQ/T riflescope is a defense article. If it
is not, then Pulungan is actually innocent without
regard to his state of mind. The agency’s evidence about
its classification of the ‘scope will be admissible, and the
judge as trier of fact will need to determine whether it
meets the regulatory criteria. If it does, then as a
practical matter Pulungan could show actual innocence
only by testifying about his knowledge; the judge then
No. 12-2595                                                7

could determine whether he is telling the truth. He is
now the plaintiff in civil litigation, so the burdens of
production and persuasion are his. If he decides not to
testify, that would be a good basis for an adverse infer-
ence. See Baxter v. Palmigiano, 425 U.S. 308, 316–20 (1976).
                                     R EVERSED AND R EMANDED




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