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                                                                                FILED
                                              No. 14-947C
                                          (Filed: May 8, 2015)                 MAY   - 8 2015
                                                                              U.S, COURT OF
                                                )                            FEDERALCLAIMI
MHAMMAD          ABU.SHAWISH,                   )
                                                )     Motion to Dismiss for Lack of
                 Pro   ,Se   Plaintiff,         )     Jurisdiction; Wrongful Conviction;
                                                )     Certificate oflnnocence;
                                                )     Compensation for Wrongful
                                                )     Imprisonment
THE UNITED STATES,                              )
                                                )
                             Defendant.         )
                                                )


         Mhammad Abu-Shawish, Milwaukee,            W| pro   se.


      Agatha Koprowsftl, Civil Division, U.S. Department of Justice, Washington, DC,
with whorn were Joyce R. Branda, Acting Assistant Attorney General, Director Robert E
Kirschman,,-/r. and AssistantDirector Steven J. Gillingham, for defendant.

                               ORDER ON MOTION TO DISMISS

FIRESTONE, Jzdge.

         On October 6,2014, plaintiff, Mhammad Abu-Shawish ("Mr. Abu-Shawish"),

filed   a complaint pursuant to 28   U.S.C. $$ 1495 and 2513, seeking money damages in

the amount of$175,000 for alleged unjust conviction and forty-two months        of

imprisonment in Federal custody. The government has moved to dismiss Mr. Abu-

Shawish's complaint for lack ofjurisdiction under Rule 12(bX1) of the Rules of the

United States Court of Federal Claims on the grounds that plaintiff has not alleged

sufficient facts to show that he is entitled to payment under 28 U.S.C. $ 1495.
Specifically, the government argues that plaintifls complaint cannot survive a motion to

dismiss because he has not alleged facts to show that he was "innocent of the charges"

made against him with a certificate of innocence issued by the district court, as required

by the statute. For the reasons set forth below, the court agrees with the government that

the case must be dismissed.

       In 2005, Mr. Abu-Shawish was tried in the United States District Court for the

Eastem District of Wisconsin on a single count of fraud under 18 U'S.C. $ 666 and was

convicted on June 29,2005. On February 1,2006, Mr. Abu-Shawish was sentenced to

thirty-six months in prison. Mr. Abu-Shawish appealed his conviction to the United

States Court of Appeals for the Seventh   Circuit. On November 7 , 2007 , the appeals court

vacated his conviction and remanded the case for further proceedings,.concluding that the

govemment had charged Mr. Abu-Shawish under the wrong statute because Mr' Abu-

Shawish was not an agent of the organization he defrauded (the City of Milwaukee) as

required by l8 U.S.C. $ 666(a)(1XA). United States v. Abu-Shawish, 507 F.3d 550, 558

(7th Cir. 2007). In reversing the conviction, the appeals court stated, "Without question,

the indictment properly alleged and the evidence was sufficient to show that Abu-

Shawish defrauded the City of Milwaukee. However, he was not an agent of the City        of

Milwaukee, and so he was not properly charged under 18 U.S.C. $ 666(aXlXA)." Id.

       Following the Seventh Circuit's decision, the government dismissed the original

indictment and obtained a new indictment charging Mr. Abu-Shawish with several counts

of mail fraud and transportation of stolen funds in foreign commerce under 18 U.S.C.     $


1341 and 2314. Mr. Abu-shawish went to trial a second time, and, on October 16, 2008,
he was acquitted on all charges and released from prison. On October 6'2014' he filed

the present case. In addition to his time in prison before his acquittal, Mr. Abu-Shawish

alleges that, after he was released from prison, hc was detained for an additional six

months in the custody of Immigration and Customs Enforcement. He alleges that his

immigration detainment was directly related to his overturned conviction.

       Section 1495 provides that "[t]he United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim for damages by any person unjustly

convicted of an offense against the United States and imprisoned'" 28 U.S'C. $ 1495'

To establish jurisdiction, however,   a   plaintiff seeking compensation under Section 1495

must also meet the requirements of 28 U.S.C. $ 2513(a)(l). Zakiya v. United States, 79

Fed. Cl. 231,234      (2007),atfd,277 F. App'x985 (Fed. Cir. 2008);    see also Grayson   v.

United States, 141 Ct. Cl. 866 (1958) (per curiam). Section 2513(aXl) provides that

compensation under 28 U.S.C. $ 1495 is only available if the plaintiff meets the

followine criteria:

       (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 ofthe offense of which he was convicted, or on new trial
               or rehearing he was found not guilty ofsuch offense, as appears
               from the record or certificate of the court setting aside or reversing
               such conviction, or that he has been pardoned upon the stated ground
               of innocence and unjust conviction and

           (2) He did not commit any ofthe acts charged or his acts, deeds, or
               omissions in connection with such charge constituted no offense
               against the United States, or any State, Territory or the District of
               Columbia, and he did not by misconduct or neglect cause or bring
                about his own Prosecution.

18   U.S.C. $ 2513(aX1). Therefore, in order for this court to have jurisdiction,           a   plaintiff

must obtain a certificate of innocence from the district court which states that not only

was he not guilty of the crime of conviction, but also that none of his acts related to the

charged crime were other crimes.

         It is clear from   a careful   review of the complaint and plaintiff   s   reply to the

government's motion that Mr. Abu-Shawish has failed to allege or otherwise demonstrate

that he has met the requirements set in $ 25 13. Plaintiff has not alleged that he has

obtained a certificate of innocence from the United States District Court for the Eastem

District of Wisconsin or that his innocence has been otherwise established. Rather,

plaintiff argues that the reversal of his conviction after his first trial and his acquittal at

his second trial are enough to establish jurisdiction. However, neither ofthese events is

suffi cient to establish j urisdiction.

         First, the fact that Mr. Abu-shawish's 2005 conviction was reversed does not

establish his innocence, but rather demonstrates that the prosecution failed to prove the

necessary elements of the offense for which he was charged. In order to establish his

innocence, the plaintiff would need to petition and receive a certificate of innocence from

the district court because, in this case, the plaintiff was not found to be innocent of the

charges; additionally he must also show that his acts in connection with his original

         ,,constituted no offense against the United states, or any State, Territory or the
charge

District of Columbia."        18   U.S.C. $ 2513(a)(2). In this case, the Seventh Circuit found

that, though the govemment had charged Mr. Abu-Shawish with the wrong crime, there
was sufficient evidence to show that he was in fact guilty of fraud' See United States v.

Abu-Shawish, 507 F3d at 558 ("Without question, the indictment properly alleged and

the evidence was sufficient to show that Abu- Shawish defrauded the City of Milwaukee.

. . . At bottom, Abu-shawish defrauded the      city of Milwaukee."). Therefore,        because


this charge was reversed for reasons other than innocence, the statute requires that Mr.

Abu-shawish obtain a certificate of innocence from the district court before he can

recover for the prison time he served for his conviction.

         Second, the fact that plaintiff was acquitted at his second trial does not establish

that he was innocent of the charges made in the first criminal proceeding. As the Fourth

Circuit Court ofAppeals has noted, "Congress clearly did not provide in the unjust

conviction and imprisonment act an avenue for monetary compensation to all whose

criminal convictions are reversed after incarceration." United States v. Mills ,773           F   .3d


 563,566 (4th Cir. 2014) (quoting United States v. Graham, 608 F.3d 164'          l7l   (4th Cir.

2010)). Instead, "the provisions of    $ 2513   work in tandem to ensure that only      a   truly

innocent petitioner is eligible for a certificate of innocence and subsequent

compensation." Mills, 773 F.3d at 566. In that connection, the Seventh Circuit Court                of

Appeals has held that "[a] conclusion that the prosecutor did not prove a charge beyond a

reasonable doubt differs from a conclusion that the defendant is innocent in fact" and

"[flor   the purpose   of$ 2513, acquittal differs from innocence." Pulunsan v. United

 states,722 F.3d 983, 9S5 (7th Cir. 2013). Instead, the "innocence of the petitioner'must

be affirmatively established"' through a hearing in the district court and the subsequent

award of a certificate of innocence. Uultqd $latggJ-Glfsbb,773         F   .3d 726' 732 (6th Cir.
20 14)   (quoting United States v. Brunner, 200 F .2d 27 6 (6th Cir. I 952)). This is true even

when the evidence at trial was not sufficient to support a conviction beyond a reasonable

doubt.    See Grubbs     ,773   F   .3d at 733. Therefore, the fact that the petitioner was acquitted

in a trial on different-but related---charges does not negate the requirement that he must

first obtain   a   certificate of innocence before this court has jurisdiction over his wlongful

conviction claim.

         It is for these reasons that Mr. Abu-Shawish cannot meet "the other conditions set

out in section 2513" and thus his case must be dismissed. Grayson, 141 Ct. Cl. at 866.

Accordingly, defendant's motion to dismiss is GRANTED. The Clerk shall enter

judgment dismissing the case under RCFC l2(bXl) without prejudice

          IT IS SO ORDERED,


                                                                      AN      B. FIRESTONE
                                                                    Judge
