Abu-Shawish v. United States

• Decision Date: 27 May 2022
• Docket Number: 21-1574C
• Parties: MHAMMAD ABU-SHAWISH, Pro Se Plaintiff, v. THE UNITED STATES, Defendant.
• Court: Court of Federal Claims

MHAMMAD ABU-SHAWISH, Pro Se Plaintiff,
v.
THE UNITED STATES, Defendant.

No. 21-1574C

United States Court of Federal Claims

May 27, 2022

Unjust Conviction and Imprisonment Act; 28 U.S.C. §§ 1495, 2513; Damages; Period of Incarceration; Pre-Trial Detention

Mhammad Abu-Shawish, Milwaukee, WI, pro se.

Geoffrey M. Long, Civil Division, United States Department of Justice, Washington, DC, with whom were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Steven J. Gillingham, Assistant Director, for defendant.

OPINION

NANCY B. FIRESTONE, SENIOR JUDGE

In 2006, pro se plaintiff Mhammad Abu-Shawish was convicted of federal program fraud in the United States District Court for the Eastern District of Wisconsin. His conviction was eventually overturned, and on July 27, 2020, Mr. Abu-Shawish received a "certificate of innocence" from the Eastern District of Wisconsin pursuant to the Unjust Conviction and Imprisonment Act, 28 U.S.C. §§ 1495, 2513. Once a plaintiff obtains a certificate of innocence, the Act authorizes the court to award $50, 000 for each 12-month "period of incarceration" due to an unjust conviction, id. § 2513(e), to

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compensate for the plaintiff's "loss of liberty," Crooker v. United States, 828 F.3d 1357, 1363 (Fed. Cir. 2016) (per curiam).

Mr. Abu-Shawish seeks compensation under the Act for four periods of time: (1) 574 days spent in pre-trial detention; (2) 486 days spent incarcerated in federal prison; (3) six months spent in the custody of United States Immigration and Customs Enforcement ("ICE") for deportation proceedings following his release; and (4) six months spent awaiting a decision from the United States Court of Appeals for the Seventh Circuit on his appeal of his federal program fraud conviction, during which he was not in custody. See Compl. at 5, ECF No. 1; Def.'s Mot. at 14, ECF No. 18; Pl.'s Resp. at 1-4, ECF No. 22. In total, Mr. Abu-Shawish seeks compensation for 1, 425 days.

Now pending before the court is the government's motion for partial summary judgment. The government concedes that Mr. Abu-Shawish is entitled to compensation for 486 days, the period of post-conviction incarceration time related to his unjust federal program fraud conviction. Def.'s Mot. at 14. However, the government argues that the additional periods of time sought by Mr. Abu-Shawish are not compensable under the Act. Id. at 14-19.

For the reasons discussed below, the court concludes that Mr. Abu-Shawish is not entitled to compensation under the Act for his time in ICE custody or while free and awaiting appeal. However, Mr. Abu-Shawish is entitled to compensation for a portion of the time he spent in pre-trial detention in addition to the 486 days of post-conviction

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incarceration time for which the parties agree he should be compensated.^[1] The government's motion for partial summary judgment is therefore GRANTED IN PART and DENIED IN PART, and the court sua sponte GRANTS IN PART summary judgment in favor of Mr. Abu-Shawish. Mr. Abu-Shawish is entitled to compensation for 956 days of incarceration, totaling $130, 958.90 in damages.

I. STATUTORY BACKGROUND

The Unjust Conviction and Imprisonment Act provides this court with "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. "The Act has the beneficent purpose of attempting to compensate, as well as money can compensate such an injury, [a] plaintiff for loss of his liberty through an error on the part of his government." Crooker, 828 F.3d at 1363 (internal quotation and alteration omitted).

To succeed on a claim for damages under the Act, a plaintiff must allege and prove that his conviction "has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted." 28 U.S.C. § 2513(a)(1). A plaintiff must also show that 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, . . . and he did not by misconduct or neglect cause or bring about his own

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prosecution." Id. § 2513(a)(2). The Act further provides that "[p]roof of the requisite facts shall be by a certificate of the court . . . wherein such facts are alleged to appear, and other evidence thereof shall not be received." Id. § 2513(b). This proof is often referred to as a "certificate of innocence." See, e.g., Allen v. United States, 153 Fed.Cl. 386, 391 (2021). Once a plaintiff obtains a certificate of innocence from the appropriate district court, "[t]he amount of damages awarded" under the Act by this court "shall not exceed . . . $50, 000 for each 12-month period of incarceration." 28 U.S.C. § 2513(e).^[2]

II. FACTUAL AND PROCEDURAL BACKGROUND

The following undisputed facts are taken from the parties' joint stipulation of undisputed facts, the parties' briefs, and the exhibits accompanying these filings.

A. Mr. Abu-Shawish is Charged with Visa and Federal Program Fraud in Case No. 03-cr-211 (E.D. Wis.)

On October 2, 2003, the government filed a criminal complaint against Mr. Abu-Shawish in the United States District Court for the Eastern District of Wisconsin, Case No. 03-cr-211. Joint Stip. ¶¶ 1-2, 6, Ex. 1 at 8-28, ^[3] ECF No. 17. On October 3, 2003, Mr. Abu-Shawish was arrested, detained, and, on October 7, 2003, indicted on three counts, covering two sets of facts. Id. ¶¶ 3-5, Exs. 3-4. The first two counts centered on representations allegedly made by Mr. Abu-Shawish for purposes of securing visas for

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foreign nationals. Id., Ex. 4 at 35-38. On this set of facts, Mr. Abu-Shawish was charged with conspiracy to commit visa fraud and with visa fraud. Id.

Mr. Abu-Shawish was also charged with one count of federal program fraud. Id., Ex. 4 at 39-40. On this set of facts, Mr. Abu-Shawish was alleged to have fraudulently secured federal community development block grant funds, administered by the City of Milwaukee, when he submitted a development plan to the City that had already been completed and paid for by another organization. Id.

On October 10, 2003, the district court ordered Mr. Abu-Shawish detained pending trial on these charges because he was deemed a flight risk. Id. ¶ 7, Ex. 5 at 43. The district court denied Mr. Abu-Shawish's subsequent motions seeking release from pre-trial detention. Id. ¶¶ 8-9, Ex. 6 at 45-52, Ex. 7 at 54-60.

Between December 5, 2003 and November 18, 2004, the grand jury returned superseding indictments against Mr. Abu-Shawish related to the federal program fraud and visa fraud charges. Def.'s Mot. at 5-6; see Joint Stip. ¶ 10. The final Fourth Superseding Indictment was split into two sets of charges. Fourth Superseding Indictment-A encompassed two federal program fraud counts. Joint Stip., Ex. 8 at 62-68. Fourth Superseding Indictment-B focused on the visa fraud charges. Def.'s Mot. at 6. Ultimately, the visa fraud charges in Fourth Superseding Indictment-B did not proceed to trial and were dismissed on June 30, 2005. Id.

Trial on the federal program fraud counts, however, did proceed and on June 29, 2005, the jury entered a guilty verdict as to one of those counts. Id. On February 1, 2006, the district court entered judgment against Mr. Abu-Shawish on the federal

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program fraud conviction, ordering that Mr. Abu-Shawish be committed to the custody of the Bureau of Prisons ("BOP") for a total term of 36 months. Joint Stip. ¶ 11, Ex. 9 at 70-75. The judgment was imposed effective January 31, 2006. Id.

B. Mr. Abu-Shawish is Charged with Residential Mortgage Fraud in Case No. 04-cr-258 (E.D. Wis.)

Meanwhile, on November 2, 2004, while Case No. 03-cr-211 was pending, Mr. Abu-Shawish was indicted on five counts relating to residential mortgage fraud in Case No. 04-cr-258 (E.D. Wis.). Joint Stip. ¶ 12, Ex. 10 at 77-85. On November 15, 2004, the district court issued an order of detention in that case, finding that Mr. Abu-Shawish should be held pursuant to the detention order in Case No. 03-cr-211. Joint Stip. ¶ 13, Ex. 11 at 87. On May 4, 2005, following a jury trial, the district court entered judgment against Mr. Abu-Shawish on four counts of loan fraud. Id. ¶ 14, Ex. 12 at 90-95. The district court ordered that Mr. Abu-Shawish be committed to the custody of BOP for a period of eight months. Id. ¶ 14, Ex. 12 at 91. The sentence was imposed effective April 29, 2005, prior to the February 1, 2006 judgment in Case No. 03-cr-211. Joint Stip. ¶¶ 14-15, Ex. 12 at 90.

C. Mr. Abu-Shawish's Sentencing Computation

Mr. Abu-Shawish began serving his sentence on the judgment in Case No. 04-cr-258 on April 29, 2005. Joint Stip. ¶ 16, Ex. 13 at 98. As indicated in the BOP sentencing computation records, Mr. Abu-Shawish ultimately was sentenced to an aggregated total term of 44 months, consisting of the eight-month sentence in Case No. 04-cr-258 and the later-imposed 36-month sentence in Case No. 03-cr-211. Joint Stip. ¶ 17, Ex. 13 at 98;

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see also 18 U.S.C. § 3584(c) ("Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.").

In computing his sentence, BOP credited Mr. Abu-Shawish with 574 days for the time that he served in pre-trial detention between October 3, 2003 (the date of his arrest on the visa and federal program fraud charges in Case No. 03-cr-211) and April 28, 2005 (the day prior to the effective date of his loan fraud sentence in Case No. 04-cr-258). Joint Stip. ¶ 18, Ex. 13 at 98-99. This credit for prior custody is made available by the sentencing credit statute, 18 U.S.C. § 3585(b). The BOP also credited Mr. Abu-Shawish with 172 days of good conduct time, as provided for in 18 U.S.C. § 3624(b)(1). Joint Stip. ¶ 19, Ex. 13 at 99; Def.'s Mot. at 13...