Betts v. U.S., 91-3118

• Decision Date: 29 November 1993
• Docket Number: No. 91-3118,91-3118
• Citation: 10 F.3d 1278
• Parties: John A. BETTS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1278

10 F.3d 1278

John A. BETTS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 91-3118.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1992.

Decided Nov. 29, 1993.

Kenneth A. Kozel (argued), LaSalle, IL, for petitioner-appellant.

Thomas E. Karmgard, Frances C. Hulin, Asst. U.S. Attys., Danville, IL, Colin S. Bruce, Asst. U.S. Atty. (argued), Edith C. Harris, Springfield, IL, for respondent-appellee.

Before CUDAHY and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ILANA DIAMOND ROVNER, Circuit Judge.

Attorney John Betts served fifteen days in jail on a criminal contempt conviction. We reversed his conviction and vacated the sentence, concluding that the court order he purportedly had transgressed was not sufficiently specific to support a conviction for contempt. In re Betts, 927 F.2d 983 (7th Cir.1991). Betts then petitioned the district court for a certificate of innocence, the statutory prerequisite to a civil suit against the government for wrongful imprisonment. See 28 U.S.C. Sec. 2513. The district court denied the petition, finding that Betts had brought about his own prosecution through "misconduct or neglect." Betts v. United States, 770 F.Supp. 457 (C.D.Ill.1991); see 28 U.S.C. Sec. 2513(a)(2). We reverse.

I. BACKGROUND

We recounted in detail the events that led to Betts' conviction and imprisonment for contempt in our previous opinion. For present purposes, we need reiterate only a few key facts.

Ironically, Betts found himself charged with contempt in the course of defending a colleague, Kenneth Kozel, against identical charges. On Kozel's behalf, Betts had filed a motion to disqualify the district judge assigned to hear the matter. After an initial hearing on May 9, 1989, at which the district court heard argument and set a briefing schedule, the motion was taken under advisement. On June 5, 1989, the court issued an order setting the matter for a final hearing on June 19. Approximately thirty minutes before the June 19th hearing began, the court received in the mail a letter from Betts explaining that neither he nor Kozel would be present:

I have received a notice from you regarding an additional oral argument in this matter for the 19th in Springfield. I just simply am not available for that day regardless of how much I try to re-arrange matters. It had been my understanding from the previous time (May 9th) that you would rule by mail.

So that the administration of justice is not in anyway [sic] delayed, I would respectfully inform the court that my client has waived his right to be there and to present any additional matters before the court. Our position has already been presented thru [sic] prior oral argument and in the written matter submitted previously. We assume that you do not have any questions for us or we would have heard from you in writing. We have nothing further to add.

The hearing proceeded in the absence of the defense, and the court denied the disqualification motion. At the government's request, the court also directed federal marshals to arrest Betts and Kozel for having willfully disobeyed its June 5th order by failing to attend the hearing. Kozel surrendered two days later, but convinced the court to quash the warrant for his arrest on the ground that his presence at the June 19th hearing was not compelled either by statute or by the June 5th order. Betts waited several weeks before he surrendered. He was then released on bond subject to the usual conditions, including a requirement that he appear as commanded at all proceedings on the contempt charge against him.

The district court postponed resolution of the charge against Betts until it had resolved the original contempt charges against Kozel. After Kozel was convicted on two counts of contempt, ¹ the district court ordered Betts to appear on December 8, 1989 to show cause why he should not be held in contempt for failure to attend the June 19th hearing. ² Betts failed to appear on December 8, although Kozel (switching rules from client to counsel) appeared on his behalf. Kozel explained that Betts could not be present because he was hiding somewhere in the Chicago area to elude an outstanding warrant for his arrest in Ford county. The district court rescheduled the hearing for December 28.

Kozel appeared for the December 28th hearing but once again, Betts did not. His patience exhausted, the district judge issued another warrant for Betts' arrest. Federal marshals apprehended Betts on January 18, 1990, and he remained in custody until his trial on the contempt charge six days later. The district court found that Betts had willfully disobeyed its order to appear for the June 19th hearing and was thus guilty of violating 18 U.S.C. Sec. 401(3). ³ In re Betts, 730 F.Supp. 942 (D.C.Ill.1990). The court sentenced Betts to three months in prison with all but 15 days suspended and with credit for time served. The court also imposed a six-month term of supervised release and ordered Betts to pay a special assessment of $25.

On appeal, we reversed Betts' conviction and vacated his sentence. ⁴ We noted that a conviction for criminal contempt requires a willful failure to comply with a lawful order of reasonable specificity. 927 F.2d at 986 (citing United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989), and United States v. Kozel, 908 F.2d 205, 208 (7th Cir.1990), cert. denied, 498 U.S. 1089, 111 S.Ct. 969, 112 L.Ed.2d 1055 (1991)). In our view, the June 5th order "flunked the 'reasonable specificity' test" (id. at 987):

When an appearance is required, the court's language must be very direct. There should be no doubt or uncertainty as to what is meant.... Here, it is impossible to discern from the way the order is phrased that Betts' personal appearance was required. The court neither ordered the parties to appear for argument, nor did it indicate that Betts' presence was indispensable for it to render a decision. If a court order is ambiguous, "it precludes the essential finding in a criminal contempt proceeding of willful and contumacious resistance to the court's authority." United States v. Joyce, 498 F.2d 592, 596 (7th Cir.1974). Thus, it cannot be said that Betts' failure to appear at the June 19, 1989 hearing violated a court order, much less that the violation was willful.

The sight of an officer of the court being led away to jail does not make a pretty picture. Some attorneys--and, as we have seen over the past few years, even some judges--break laws and deserve prison sentences. Betts did not. We are certain that the antics of Betts and Kozel tried the patience of the court.... At a time when courts have to engage in judicial "triage" to accommodate the frightening number of drug and other cases clogging their dockets, see Labaton, Scales of Justice Off Balance, N.Y.Times, Dec. 29, 1989, at A1, col. 1, Betts and Kozel papered several courts (including this one) with numerous filings that distracted us from more pressing matters. This, however, is not a punishable crime. Given the fact the June 5, 1989 docket order did not state that the presence of Betts was de rigueur, Betts' conviction and resulting sentence cannot stand.

927 F.2d at 987-88 (emphasis in original).

Victorious on appeal, Betts returned to the district court requesting a certificate of innocence under 28 U.S.C. Sec. 2513, which would permit him to seek compensation in the Claims Court for his incarceration. The government opposed the petition, arguing that Betts had brought about his own prosecution through misconduct or neglect. See Sec. 2513(a)(2). The district court agreed:

Betts clearly brought about his own prosecution through his own neglect and misconduct. Betts waited until the last moment to inform the Court that it was simply not convenient for him to appear at a scheduled hearing. After being apprehended, Betts violated a condition of his bond and attempted to avoid prosecution because of an outstanding arrest warrant issued by an Illinois court. In fact, it is uncertain that Betts would ever have appeared had he not been apprehended by the federal marshals.

770 F.Supp. at 460.

Betts appeals from the denial of his petition. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. See Rigsbee v. United States, 204 F.2d 70, 73 n. 3 (D.C.Cir.1953).

II. ANALYSIS

A. The Statute

Our analysis necessarily begins with the language of section 2513. A separate statute, 28 U.S.C. Sec. 1495, waives the government's sovereign immunity and allows suits for wrongful imprisonment in the Claims Court. ⁵ But section 2513 establishes the conditions under which such relief may be granted:

(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 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.

Section 2513(b) requires either a court certificate or a pardon attesting to proof of these facts. Section 2513(e) caps the potential damages at $5,000.

B. Timeliness of the Appeal

Before reaching the merits, we must consider the government's contention that Betts' appeal is untimely. The district court's order denying the petition for a certificate of innocence was docketed on August 8, 1991. Betts filed a motion to alter or amend the judgment on August 14, 1991, which was denied the same day. The notice of appeal was not filed...