United States Court of Appeals

for the Fifth Circuit

No. 20-30593

United States of America, 

Plaintiff—Appellee,

versus

Elaine Davis, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:15-CR-155-1

Before King, Smith, and Haynes, Circuit Judges.

King, Circuit Judge:

After we reversed Defendant Elaine Davis’s convictions for

conspiracy to commit health care fraud and health care fraud, Davis, who had 

been incarcerated for approximately one year, filed a motion for issuance of 

a certificate of innocence. The district court denied her motion, and Davis 

now appeals. For the reasons that follow, we AFFIRM.

I. BACKGROUND

In United States v. Ganji, 880 F.3d 760 (5th Cir. 2018), this court 

reversed Defendant Elaine Davis’s convictions for health care fraud and 

United States Court of Appeals

Fifth Circuit

FILED

November 1, 2021

Lyle W. Cayce

Clerk

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2

conspiracy to commit health care fraud because the convictions were based 

on insufficient evidence. Davis had been incarcerated for approximately one 

year before this reversal. Following the Ganji decision, Davis filed a motion 

for issuance of a certificate of innocence arguing that the she fulfilled the 

requirements in 28 U.S.C. § 2513 (the Unjust Conviction and Imprisonment 

Statute) and, in the alternative, that the statute is unconstitutional in light of 

the Supreme Court’s decision in Nelson v. Colorado.

1 A magistrate judge held 

an oral argument and subsequently recommended denial of Davis’s motion. 

The district court allowed for supplemental briefing, heard oral argument, 

and subsequently denied Davis’s motion, adopting and supplementing the 

magistrate judge’s report and recommendation. Davis timely appealed, 

presenting us with the following two issues: (1) whether Davis is entitled to a 

certificate of innocence under 28 U.S.C. § 2513 and (2) whether § 2513’s 

requirement of an affirmative showing of innocence is unconstitutional.

II. STANDARD OF REVIEW

The parties do not contest the abuse-of-discretion standard for 

reviewing a district court’s denial of a certificate of innocence under 28 

U.S.C. § 2513. However, today we join other circuits and adopt the abuse-ofdiscretion standard.2 Constitutionality challenges to federal statutes, 

however, are reviewed de novo. United States v. Jones, 132 F.3d 232, 239 (5th 

Cir. 1998).

1 137 S. Ct. 1249 (2017).

2 Until now this has been an open question in our circuit. See Hernandez v. United 

States, 888 F.3d 219, 222-23 (5th Cir. 2018). Other circuits have explicitly adopted the 

abuse-of-discretion standard of review. See United States v. Graham, 608 F.3d 164, 172 (4th 

Cir. 2010); United States v. Grubbs, 773 F.3d 726, 731 (6th Cir. 2014); Betts v. United States, 

10 F.3d 1278, 1283 (7th Cir. 1993); United States v. Racing Servs., Inc., 580 F.3d 710, 711-12 

(8th Cir. 2009); Rigsbee v. United States, 204 F.2d 70, 72-73 & n.3 (D.C. Cir. 1953).

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III. DISCUSSION

We begin by determining whether the district court erred in denying 

Davis’s motion for a certificate of innocence; then, we turn to her 

constitutionality challenge.

A. Denial of the Motion for Certificate of Innocence

The “default [burden of proof] for civil cases” is the preponderance 

of the evidence. CIGNA Corp. v. Amara, 563 U.S. 421, 444 (2011). We join 

the other circuits that have found that this default burden of proof applies to 

motions for certificates of innocence.

3 A person seeking a certificate of 

innocence under 28 U.S.C. § 2513 is required to 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 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 of the 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.

28 U.S.C. § 2513(a). The government conceded that Davis satisfied the first 

requirement. The second prong is the focus of the dispute.

3 See United States v. Grubbs, 773 F.3d 726, 733 (6th Cir. 2014); Abu-Shawish v. 

United States, 898 F.3d 726, 739 (7th Cir. 2018); Holmes v. United States, 898 F.3d 785, 789 

(8th Cir. 2018); United States v. Abreu, 976 F.3d 1263, 1270 (11th Cir. 2020).

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Under that prong, Davis had to prove that she “did not commit any 

of the acts charged”4 and that she “did not by misconduct or neglect cause 

or bring about [her] own prosecution.” Id. § 2513(a)(2). The district court 

did not abuse its discretion in finding that Davis did not prove by a 

preponderance of the evidence that she “did not commit any of the acts 

charged” (i.e., the first requirement of § 2513(a)(2)).

Davis was charged with conspiracy to commit health care fraud as well 

as health care fraud, and she relies only on the trial record and our opinion in 

Ganji to show that she did not commit the acts associated with those charges. 

In Ganji, regarding the conspiracy charge, our court acknowledged that “the 

direct evidence favors Davis” because the government’s witnesses testified 

that Davis had never explicitly entered into an agreement with them. Ganji, 

880 F.3d at 773. However, “[a]greements need not be spoken or formal, and 

the Government can use evidence of the conspirators’ concerted actions to 

prove an agreement existed.” Id. at 767. Our court went no further than 

concluding that the government “did not implicate Davis in the scheme with 

proof beyond a reasonable doubt.” Id. at 777. Similarly, regarding the fraud 

charges, this court found that the government presented “insufficient 

evidence to show that [Davis] knowingly executed a scheme to defraud 

Medicare.” Id. at 778. Thus, it was within the district court’s discretion to 

find that Davis did not satisfy her burden to prove her actual innocence of the 

acts charged.

4 As indicated by the word “or,” the subsection requires only that a plaintiff prove 

either that she “did not commit any of the acts charged” or her “acts, deeds, or omissions 

in connection with such charge constituted no offense.” 28 U.S.C. § 2513(a)(2). Davis’s 

argument focuses on the acts charged in the indictment, so we restrict our analysis to the 

former requirement.

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Davis was required under 28 U.S.C. § 2513(a)(2) to prove her lack of 

misconduct or neglect in addition to her actual innocence of the charged acts. 

Because Davis did not prove her actual innocence, we need not wade into the 

circuit split interpreting “misconduct or neglect” in that same prong.

B. Constitutionality of § 2513(a)’s Requirement to Prove Innocence

Davis relies on the Supreme Court’s holding and rationale in Nelson 

v. Colorado, 137 S. Ct. 1249 (2017) to argue that 28 U.S.C. § 2513(a)’s 

requirement of an affirmative showing of innocence is unconstitutional. 

However, the issue in Nelson and the issue here are meaningfully different, 

making the Court’s holding in Nelson inapplicable. In Nelson, the defendants 

(whose convictions were reversed) moved for refunds of restitution, fees, and 

costs they paid upon their convictions. Notably, the Colorado law scrutinized 

in Nelson also allowed for compensation including $70,000 per year of 

incarceration, compensation for child support, and reasonable attorney’s fees 

for bringing the compensation claim. Id. at 1254 n.6. However, the petitioners 

in Nelson did not request compensation, so the constitutionality of that part 

of the statute was not at issue.

Here, Davis is attempting to receive damages for her incarceration 

under 28 U.S.C. § 1495. See also 28 U.S.C. § 2513(e) (providing the damages 

cap). Davis’s interest in receiving damages for her wrongful conviction is not 

about “the continuing deprivation of property after a conviction has been 

reversed.” Nelson, 137 S. Ct. at 1255. Rather, she seeks something above and 

beyond her existing rights. “The American legal system has long treated 

compensation for the economic consequences of a reversed conviction very 

differently from the refund of fines and other payments made by a defendant 

pursuant to a criminal judgment.” Id. at 1261 (Alito, J., concurring). This is 

exactly the distinction the district court made. Accordingly, the district court 

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did not err in finding Nelson inapplicable to this case on the question of 

constitutionality.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM.

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