Abigail M. Veazie | Bars to Certificates of Innocence for the Wrongfully Convicted

Background

Federal law, as codified in 28 U.S.C. § 1495 and § 2513, provides the wrongfully convicted and imprisoned a mechanism to seek compensation from the United States government. 28 U.S.C. § 1495; United States v. Bala, 948 F.3d 948, 949 (8th Cir. 2020). Section 1495 grants jurisdiction for such cases to the Court of Federal Claims, but to be eligible, a person must first obtain a “certificate of innocence” from the court that reverses or sets aside the conviction. 28 U.S.C. § 2513 (a)(1). The decision to grant or deny a certificate is left to the discretion of the district court. United States v. Graham, 608 F.3d 164, 169 (4th Cir. 2010); Betts v. United States, 10 F.3d 1278, 1283 (7th Cir. 1993).

The “plain language” of section 2513(a) sets forth three requirements a petitioner must meet to obtain a certificate of innocence. Graham, 608 F.3d at 171. They must “allege and prove” that: (1) their conviction has been overturned, they have been declared not guilty in a subsequent trial, or they have been pardoned based on grounds of innocence; (2) they did not commit the crime of which they are accused, or their actions did not amount to a crime under state or federal law; and (3) “[they] did not by misconduct or neglect cause or bring about [their] own prosecution.” § 2513(a)(1)­–(2).

When hearing a challenge to a denial of a certificate of innocence, a circuit court must affirm the district court’s decision, “unless the [district] court abused its discretion, or . . . the findings underlying its decision were clearly erroneous.” Graham, 608 F.3d at 172; Betts, 10 F.3d at 1283.

The Betts court noted that neither the text of section 2513 nor the statute’s legislative history “elucidates what kind of misconduct or neglect will bar relief, and the case law is sparse.” 10 F.3d at 1284. The interpretation of what constitutes “misconduct or neglect” under 28 U.S.C. § 2513(a)(2) for obtaining a certificate of innocence has led to a significant circuit split among U.S. Courts of Appeals.

ISSUE

What constitutes “misconduct or neglect” sufficient to bar a petitioner from obtaining a certificate of innocence under 28 U.S.C. § 2513(a)(2)?

THE SPLIT

The split among circuit courts on the proper interpretation of the requirements set forth in § 2513(a)(2) lies primarily between the Third, Fourth, and Seventh Circuits. The Third and Fourth Circuit have adopted a broader interpretation that bars eligibility for compensation for a wider range of conduct, while the Seventh Circuit takes a slightly narrower, more direct approach.

The Fourth Circuit

The Fourth Circuit has interpreted "misconduct" broadly, barring eligibility for certificates of innocence when the claimant's behavior—even if not criminal—contributed to the prosecution. The appeal in United States v. Graham arose from Robert E. Graham’s wrongful conviction related to a corporate fraud and embezzlement scheme, for which Graham was implicated and imprisoned for over a year. 608 F.3d at 166. Graham appealed his conviction to the Fourth Circuit Court, which “reversed his sole conviction on sufficiency grounds.” Id. at 169. Graham subsequently moved in the same court for a certificate of innocence under 28 U.S.C. § 2513 to facilitate his claim against the U.S. government for wrongful conviction. Id. The court denied Graham’s motion, holding that "the district court is the most appropriate court to issue the certificate.” Id. Graham’s subsequent motion in district court was also denied. Id.

In its opinion, the district court reasoned that, despite the reversal of his conviction, Graham’s conduct—specifically, his failure to seek approval from his company’s board members before converting his personal sick leave to cash—amounted to neglect leading to his conviction; he was thus barred from obtaining a certificate of innocence under the requirements of section 2513. United States v. Graham, 595 F. Supp. 2d 681, 684 (S.D.W. Va. 2008) (“[Section] 2513 orders compensation to the truly innocent who have been prosecuted through no fault of their own, [and] the statute provides a remedy to be applied only in exceptional cases."). The Fourth Circuit affirmed the district court’s decision on appeal, finding that section 2513 demanded a broad reading and that "misconduct or neglect" under the statute included any acts that were originally charged as crimes, even if those acts were ultimately found not to be criminal. 608 F.3d at 174 (“[T]he statute's ‘misconduct or neglect’ language on its face captures noncriminal conduct and thus requires just such an assessment.”).

The Third Circuit

The Third Circuit joined the Fourth in its broad interpretation of “negligence and misconduct” under section 2513 in United States v. Johnson, No. 22-1970, 2024 U.S. App. LEXIS 21113 (3d Cir. Aug. 21, 2024). Joseph Johnson posed as an attorney and filed a fabricated document on the civil docket in one of the lawsuits alleging sexual assault against the actor Bill Cosby, and Johnson spent fifteen months in a federal penitentiary for making a false statement and aggravated identity theft. Johnson, 2024 U.S. App. LEXIS 21113 at *1-2. The district court ultimately overturned Johnson’s conviction but denied his later petition for a certificate of innocence, finding that “Johnson had not proved that he did not by misconduct or neglect cause or bring about his own prosecution” as required to obtain a certificate under section 2513(a)(2). Id. (internal quotations omitted).

The district court decision stated:

The persuasive case law provides that the misconduct to which the statute refers includes and is not separate from the conduct charged. Thus if the underlying conduct of the defendant, although ultimately insufficient to convict, caused or brought about his prosecution, he is not entitled to a certificate of innocence.

United States v. Johnson, No. 19-367, 2022 U.S. Dist. LEXIS 90076 (E.D. Pa. May 19, 2022).

On appeal, the Third Circuit affirmed the district court’s decision, supporting the Fourth Circuit’s stance that even non-criminal, negligent behavior that could have facilitated the prosecution would preclude recovery under section 2513(a)(2). 2024 U.S. App. LEXIS 21113 at *8.

In its opinion, the court determined that, upon the examination of the statute’s text, the scope of analysis of section 2513(a)(2) “begins and ends with the ordinary meaning of ‘cause or bring about.’" Id. The court distinguished between two types of causation often used in legal contexts: proximate causation (whether the conduct was a legally recognized cause of the prosecution) and actual causation (whether the prosecution would have occurred "but for" the petitioner’s actions). Id. at *10 ("When a statutory provision includes an undefined causation requirement, we look to context to decide whether the statute demands only but-for cause as opposed to proximate cause or sole cause.”) (citing Husted v. A. Philip Randolph Inst., 584 U.S. 756, 769 (2018)).

The Third Circuit rejected the argument that proximate causation, which would have required a closer, more direct connection between the petitioner’s misconduct and the prosecution, should apply. Instead, the court held that the petitioner’s actions need only be a “but-for” cause of the prosecution to disqualify them from compensation under section 2513(a)(2). 2024 U.S. App. LEXIS 21113 at *12–13 (“We thus align ourselves with the Fourth Circuit, in conflict with the Seventh.”). The court reasoned that the statute does not include proximate cause language and that Congress knows how to explicitly include such requirements when intended and that equating factual causation with “but-for” causation is consistent with Supreme Court precedent. Id. at *17, 15. Applying this approach, the court held that had Johnson not filed the fabricated exhibit, the government would not have prosecuted him, and he therefore cannot satisfy the requirements for compensation under § 2513(a). Id. at *29.

The Seventh Circuit

The Seventh Circuit, as Johnson and Graham note, takes a much narrower approach than the Third and Fourth Circuit Courts. Johnson, 2024 U.S. App. LEXIS 21113 at *11–12; Graham, 608 F.3d at 173.

In the Seventh Circuit case, Betts v. United States, the court held that a petitioner should only be disqualified from obtaining a certificate of innocence if they actively misled the authorities into believing the individual had committed an offense, thus contributing directly to their wrongful conviction. 10 F.3d at 1284.

Attorney John Betts was held in contempt and imprisoned for fifteen days after failing to obey a court order. The district court vacated Betts sentence, after which Betts petitioned the district court for a certificate of innocence, so he might pursue a wrongful conviction claim. Id. at 1280–1281. The district court denied his request, holding that Betts "had brought about his own prosecution through ‘misconduct or neglect’,” failing to satisfy the second prong of section 2513. Betts v. United States, 770 F. Supp. 457, 458 (C.D. Ill. 1991).

After considering Betts’s subsequent appeal, the Seventh Circuit reversed the district court’s ruling, holding that Betts had satisfied the requirements for a certificate under the “misconduct and neglect” prong of § 2513(a) and that “even if Betts’s conduct had constituted misconduct or neglect,” the court that convicted him had made a mistake, absolving Betts of responsibility for his prosecution. 10 F.3d at 1286.

While the Seventh Circuit agrees with the premise that section 2513(a)(2) “requires a causal connection” between the petitioner's conduct and his prosecution, the similarities to the Third and Fourth Circuit’s stance on the conduct of the statute end there. The Betts court specifies that, to bar a certificate of innocence under the statute, conduct must be an affirmative act or omission on the part of the convicted that “misled authorities into thinking he committed the offense”; a petitioner is not denied eligibility “simply because [he] engaged in misconduct or neglect, period.” Id. at 1285. The Betts opinion plainly rejected the kind of approach favored by the Third and Fourth Circuits, stating that such an analysis would require the court “to assess the virtue of a petitioner's behavior even when it does not amount to a criminal offense.” Id. at 1286.  The “relevant conduct” does not need to be intentional, but any behavior that indicates "a defendant has it within his means to avoid prosecution but elects not to do so” does not preclude a denial of a certificate of innocence under the confines of the Seventh Circuit’s approach. Id. at 1285–86.

CONCLUSION

This circuit split has significant implications for claimants seeking compensation under 28 U.S.C. §§ 1495 and 2513. In jurisdictions following the broader interpretation favored by the Third and Fourth Circuits, claimants face a higher burden of proof, as they must demonstrate that their actions did not contribute to their wrongful prosecution, regardless of intent. In contrast, the Seventh Circuit’s narrower interpretation offers a more claimant-friendly standard, where only deliberate deceit or direct causation of prosecution through the claimant’s actions bars relief. The Supreme Court’s intervention may be necessary to provide clarity on the issue and establish a uniform standard for evaluating the impact of a claimant's conduct on their eligibility for a certificate of innocence.

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