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# FILED No. 14-947C 

### (Filed: 

### May 8,

# 2015) MAY

## - 8 2015 U.S, COURT OF 

# ) Motion to 

### Dismissfor Lack

### of Pro ,Se

# Plaintiff, ) Jurisdiction; 

### Wrongful Conviction;



# ) Certificate oflnnocence; 

# ) Compensation 

### for 

### Wrongful 

# ) Imprisonment ) ) 

### MHAMMAD

# ABU.SHAWISH, )



### THE 

### UNITED STATES, FEDERALCLAIMI

) 

# Defendant. )

)

Mhammad Abu-Shawish, 

### Milwaukee, 

### W| pro se. Agatha 

### Koprowsftl, 

### Civil Division, U.S. Department 

### of Justice, Washington, 

### DC, 

### with whorn wereJoyce 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 acomplaint 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. AbuShawish's 

### complaint

### for lack 

### ofjurisdiction under 

### Rule 12(bX1) 

### of the Rules of the 

### United States 

### Court of Federal Claims onthe 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 Courtfor the Eastem 

### District of Wisconsin on asingle 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' AbuShawish was not an agent 

### of the organization he defrauded (the

### City of Milwaukee) as required 

### by 

### l8 U.S.C. $

### 666(a)(1XA). United Statesv. 

### Abu-Shawish, 507 F.3d 550, 558 

### (7th 

### Cir.2007). In reversing the 

### conviction, the appeals court stated, 

### "Without question, the 

### indictment properly alleged andthe evidence was

### sufficient to show that 

### AbuShawish 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 andtransportation 

### 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, hcwas detained 

### for an

### additionalsix 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 meetsthe 

### 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 hewas convicted, or on new 

### trial or rehearing hewasfound 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 

### bringabout 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

### fromthe 

### 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 acareful 

### review of the 

### complaint and 

### plaintiff s

### reply tothe government's 

### motion that 

### Mr. Abu-Shawish has

### failedto allege 

### or otherwise demonstrate that he has met the requirements set 

### in $ 25 

### 13. Plaintiff has not allegedthat he has obtained a

### certificate 

### of innocence 

### from the 

### United States 

### District Courtfor the Eastem 

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

### plaintiff arguesthat the reversal of his 

### conviction after 

### hisfirst 

### 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 factthat 

### 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 orderto establish his innocence, the 

### plaintiff would need to 

### petition and receive a

### certificate of innocence 

### from the 

### district court because, inthis 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 charge ,,constituted no offense against the 

### United states, or any State, 

### Territory or the 

### 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, therewas

### 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 hewas 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 ensurethat 

### 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 aconclusion 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 inthe 

### 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 Statesv. 

### Brunner, 200 F.2d 276 

### (6th

### Cir. I

### 952)). This istrue 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" andthus 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