Abu-Shawish v. United States, No. 17-1283 (7th Cir. 2018)Annotate this Case
Abu-Shawish, the executive director of a non-profit organization, received a federally-funded (HUD) grant for a plan for revitalizing a Milwaukee street, submitting a plan that was “essentially identical” to a plan submitted by someone else. In 2005, he was convicted of federal program fraud, 18 U.S.C. 666(a)(1)(A). He served three years in prison. The Seventh Circuit vacated Abu-Shawish’s conviction because the statute requires that the defendant be an agent of the defrauded organization (Milwaukee). On remand, the district court dismissed the program fraud indictment. Abu-Shawish was indicted for mail fraud (18 U.S.C. 1341) and transporting, in foreign commerce, funds obtained by fraud (18 U.S.C. 2314). Acquitted in 2008, Abu-Shawish sought damages under 28 U.S.C. 1495 and 2513 for unjust conviction and imprisonment, having unsuccessfully sued for malicious prosecution. The Claims Court dismissed without prejudice because Abu-Shawish had not obtained a required certificate of innocence from the court where he was convicted.
Abu-Shawish filed a pro se petition for a certificate of innocence. The government never responded and does not argue that Abu-Shawish’s petition is time-barred. The Seventh Circuit vacated the district court's dismissal. Abu-Shawish received no meaningful opportunity to be heard. The court applied a standard too rigorous for the pleading stage of a new civil case embedded within a closed criminal case. The question is whether Abu-Shawish can show by a preponderance of the evidence that he was not guilty of a crime, not whether the evidence would have allowed a conviction.