US v. Thomas A. Mills, Sr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:03-cr-00249-BR-1. [999488787]. [13-7358]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7358
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS ANDREW MILLS, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:03-cr-00249-BR-1)
Argued:
September 17, 2014
Decided:
December 8, 2014
Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion.
Judge Motz wrote the majority
opinion, in which Senior Judge Davis joined. Judge Floyd wrote
a separate opinion dissenting in part and concurring in the
judgment.
ARGUED: Benjamin Paul Fryer, MOORE & VAN ALLEN PLLC, Charlotte,
North Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Benjamin M. Pickett, MOORE & VAN ALLEN PLLC,
Charlotte, North Carolina; Adam H. Charnes, Richard D. Dietz,
KILPATRICK
TOWNSEND
&
STOCKTON
LLP,
Winston-Salem,
North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
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Carolina, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
Thomas Andrew Mills, Sr. petitioned the district court for
a certificate of actual innocence after his felon-in-possession
conviction was vacated.
A court may grant such a certificate, a
prerequisite for recovering from the Government compensation for
wrongful incarceration, only in those rare cases in which it
finds a previously convicted defendant to be truly innocent.
The district court determined that this is not such a case and
denied Mills’s petition.
We affirm.
I.
On January 22, 2003, Mills sold a rifle and a shotgun, both
of which had been stolen, to the owner of a pawn shop in North
Carolina.
prior
Mills had a lengthy criminal history, including seven
North
Carolina
felony
convictions
entering and one conviction for larceny.
for
breaking
and
A federal jury in the
Eastern District of North Carolina convicted Mills of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1)
and
§
924
(2012).
The
district
court
sentenced
Mills to 180 months’ imprisonment.
Following our decision in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), Mills filed a 28 U.S.C.
§ 2241 motion for writ of habeas corpus.
rendered
his
conviction
for
being
3
a
He argued that Simmons
felon
in
possession
in
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violation
oppose
of
the
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§
922(g)(1)
motion.
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improper.
Accordingly,
The
on
Government
October
4,
did
not
2012,
the
district court granted Mills’s § 2241 motion and vacated his
conviction in light of Simmons.
The court ruled that his seven
prior North Carolina convictions, although felonies under state
law,
did
not
constitute
felonies
for
purposes
of
18
U.S.C.
§ 922(g)(1) because Mills could not have been imprisoned for
more than one year for any of them.
On
January
31,
2013,
Mills
moved
for
a
certificate
actual innocence under 28 U.S.C. § 2513 (2012).
of
A person must
obtain such a certificate before recovering damages from the
Government
(2012).
for
unjust
imprisonment
under
28
U.S.C.
§
1495
The Government moved to dismiss Mills’s motion for a
certificate of innocence, contending that Mills had failed to
prove
two
of
certificate.
States
v.
the
three
required
predicates
for
The district court denied Mills’s motion.
Mills,
2013
WL
3864304
(E.D.N.C.
July
24,
such
a
United
2013).
Mills then filed this appeal.
II.
Section
2513,
the
“unjust
convictions
and
imprisonment
statute,” provides in pertinent part:
(a) Any person suing under section 1495 of this
title must allege and prove that:
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(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.
The plain language of § 2513(a) thus requires a petitioner
to both “allege and prove” three predicates.
v. Graham, 608 F.3d 164 (4th Cir. 2010).
See United States
First, the petitioner
must establish that the record of the court setting aside or
reversing his conviction demonstrates that the court did so on
the ground that he is not guilty of the offense for which he was
convicted.
Second, the petitioner must prove that he did not
commit any of the acts charged, or that those acts or related
acts constituted
no
crime
State,
or
the
Territory
against
District
the
of
United
States,
Columbia.
or
any
Third,
the
petitioner must demonstrate that he did not by misconduct or
neglect cause or bring about his own prosecution.
Although § 2513 has been in effect for many years, we have
had the opportunity to examine it only once before.
we
recognized
that
“Congress
clearly
did
not
In Graham,
provide
in
the
unjust conviction and imprisonment act an avenue for monetary
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compensation
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to
all
whose
after incarceration.”
§ 2513
work
petitioner
in
is
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criminal
Id. at 171.
tandem
eligible
to
ensure
for
a
convictions
are
reversed
Rather, the provisions of
that
only
certificate
a
of
subsequent compensation from the Government.
truly
innocent
innocence
and
As the Seventh
Circuit recently noted,
[m]any people believe that persons who spend time in
prison
without
a
valid
conviction
should
be
compensated.
That is not, however, what § 1495 and
§ 2513 [the unjust conviction statutes] do.
They
compensate only persons who are actually innocent -whether because they did not do what the indictment
charged or because what they did is not a crime.
Pulungan v. United States, 722 F.3d 983, 985 (7th Cir. 2013).
A
district
court
has
“substantial
discretion”
when
determining whether to grant or deny a certificate of innocence
pursuant to 18 U.S.C. § 2513.
Graham, 608 F.3d at 166.
We
affirm such a denial “unless the [district] court abused its
discretion, or unless the findings underlying its decision were
clearly erroneous.”
Id. at 172 (quoting Betts v. United States,
10 F.3d 1278, 1283 (7th Cir. 1993)) (internal quotation marks
omitted).
III.
In
this
satisfied
the
case,
first
the
district
predicate
court
but
recognized
denied
the
that
Mills
certificate
of
innocence on the ground that Mills failed to carry his “rigorous
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burden” with respect to the third predicate.
3864304 at *4.
Mills, 2013 WL
We may affirm, however, on the ground that Mills
failed to establish any one of the three predicates.
United
States
v.
Moore,
709
F.3d
287,
293
(4th
See, e.g.,
Cir.
2013).
Because we conclude that Mills did not satisfy the second § 2513
predicate,
we
do
not
reach
the
question
of
whether
he
also
failed to satisfy the third.
The
second
predicate
for
a
certificate
of
innocence
mandates that a petitioner allege and prove that he “did not
commit any of the acts charged or [that] his acts, deeds, or
omissions in connection with such charge constituted no offense
against
the
United
States,
District of Columbia.”
or
any
State,
Territory
or
the
28 U.S.C. § 2513(a)(2) (emphasis added). 1
Thus, Mills can satisfy the second predicate only by proving
either (a) he did not commit any of the acts charged or (b)
those acts, or related acts, constituted no crime against the
United
States,
or
any
State,
Territory
or
the
District
of
Columbia.
1
Although the Government seems to suggest the contrary, see
Appellee’s Br. 14-17, as Mills contends and the district court
held, these two parts of the second predicate are disjunctive.
See, e.g., United States v. Keegan, 71 F. Supp. 623, 638
(S.D.N.Y. 1947) (holding after a thorough analysis of the
relevant legislative history that Hadley v. United States, 66 F.
Supp. 140 (Ct. Cl. 1946), erred in placing a conjunctive “and”
between the two elements).
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The
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district
court
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expressly
found
that
Mills
had
not
proved (b) because “[w]hile in hindsight defendant’s acts do not
constitute
the
federal
offense
of
felon
in
possession
of
a
firearm . . . they did constitute an offense against the state
of North Carolina.”
Mills, 2013 WL 3864304, at *3.
Mills does
not argue to the contrary -- and for good reason.
The record
unquestionably demonstrates that on January 22, 2003, Mills, who
had
multiple
convictions
possessed two firearms.
for
state
felonies,
nevertheless
This possession violated North Carolina
law barring those previously convicted of state felonies from
possessing firearms.
See N.C. Gen. Stat. § 14-415.1(a).
Thus
Mills cannot prove that the acts he committed on January 22,
2003
“constituted
required
by
the
no
offense
second
against
part
of
.
the
.
.
any
second
State,”
as
predicate
of
§ 2513(a)(2).
The district court, however, did not resolve the question
of whether Mills established the first part of that predicate -that he “did not commit any of the acts charged.”
Id.
The
court noted that “[t]o be sure, on 22 January 2003, defendant
possessed both of the subject firearms, as charged,” but the
court believed it was unclear whether the change in law worked
by
Simmons
“now
means
he
did
not
Mills, 2013 WL 3864304, at *3.
8
commit
the
acts
charged.”
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The
first
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part
of
the
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second
§
2513
predicate
plainly
requires a petitioner to prove that he did not commit “any of
the acts charged.”
This means that when an indictment charges
more than one act, if a petitioner commits any of the acts
charged,
With
he
this
is
not
eligible
understanding
of
for
the
a
certificate
statute
in
of
mind,
innocence.
we
turn
to
Mills’s case.
IV.
Here, Mills concedes that he violated North Carolina law.
The only question that remains is whether Mills committed “any
of the acts charged.”
Mills’s own concession demonstrates that
he undoubtedly possessed firearms on January 22, 2003, and thus
committed at least one of the “acts charged.”
Mills maintains, to the contrary, that he has proved he did
not
commit
“any
of
the
acts
charged.”
Appellant’s
Br.
19.
According to Mills, he thus “readily satisfie[s]” the first part
of the second predicate.
This argument rests on Mills’s view
that the only act the Government charged here was possession of
a
firearm
while
having
been
previously
convicted
punishable by more than one year in prison.
of
a
crime
In other words,
Mills contends that the only way he could have committed “any of
the acts charged” is if he satisfied all of the elements of
§ 922(g)(1).
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This reading of the statute is clearly incorrect.
Section
922(g) does not, as Mills would have it, criminalize the act of
possessing-a-firearm-while-being-a-felon.
Rather,
it
renders
the possessory act a criminal one, and then applies the statute
only to a limited subset of people -- convicted felons.
That,
in light of Simmons, Mills is no longer part of the class to
whom the statute applies, does not mean that he did not commit
the possessory act.
crime.
U.S.
It simply means the act was not a federal
The Supreme Court, in Old Chief v. United States, 519
172
(1997),
§ 922(g).
convict
endorsed
this
construction
of
There, the Court held that a defendant’s “felony-
status”
sequence
expressly
of
is
what
“an
the
element
entirely
defendant
is
doing” in a § 922(g)(1) prosecution.
Moreover,
Mills’s
approach
internally inconsistent.
outside
charged
the
with
natural
thinking
or
Id. at 191.
would
render
§
2513(a)(2)
Like the defendant in Osborn v. United
States, Mills improperly treats the “alleged criminal acts as
indistinguishable
from
the
statutory
provisions
§ 922(g)(1)] under which he was charged.”
(5th Cir. 1963).
[here,
322 F.2d 835, 841
By failing to recognize that federal statutes
have distinct, and separable elements, Mills collapses into a
single requirement the two separate requirements of the second
predicate
of
§
reversal
of
a
2513(a)(2).
federal
Under
conviction
10
such
an
would
approach,
necessitate
every
the
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conclusion not only that the defendant’s acts did not violate
federal law but also that he did not commit “any of the acts
charged” for purposes of § 2513(a)(2). 2
But the very reason these two parts of § 2513(a)(2) are
disjunctive is because they impose different requirements.
The
first requires that the petitioner prove he did not commit the
acts charged.
If the petitioner is able to prove this, there is
no need to move to the second requirement.
If the petitioner
cannot satisfy the first requirement, then he must satisfy the
second,
which
requires
him
to
violate federal or state law.
prove
that
his
acts
did
not
As the Fifth Circuit explained,
“[i]f he did not commit the act charged it would be immaterial
whether the act was unlawful, and conversely, if the act was not
criminal it should make no difference whether he had done it.”
Osborn, 322 F.2d at 841.
It must be, then, that the “acts
2
For example, when the Government indicts a defendant for
malicious burning of military property in violation of 18 U.S.C.
§ 81 (2012), the indictment must allege all of the elements of
the crime.
But in Mills’s view, all of these elements would
constitute only a single “act[] charged” for purposes of § 2513.
Thus reversal of a defendant’s § 81 conviction solely because
the building he burned was later found not to be on military
soil would necessarily prove, according to Mills, that the
defendant did not commit “any of the acts charged.” In addition
to being absurd, this would render the first part of the second
§ 2513 predicate redundant.
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charged”
and
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“the
offense
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against
the
United
States”
pose
distinct inquiries. 3
Mills poses a hypothetical that he contends supports his
claim that he satisfies the second § 2513 predicate.
In the
hypothetical, a court reverses the conviction of a defendant
charged with murder, finding him not guilty because new evidence
establishes that the killing was in self-defense.
Reply Br. 3.
There, the defendant committed the “acts charged” by killing
another person, but the acts were not “an offense against the
United
States,
Columbia.”
or
§
any
State,
Territory,
2513(a)(2).
or
the
Accordingly,
District
although
of
the
hypothetical defendant would not have satisfied the first part
of
the
second
predicate
(he
did
commit
any
of
the
“acts
charged”), he would have satisfied the second part (the acts
3
The Seventh Circuit recently said as much in a case
involving a vacated conviction for attempt to export a “defense
article” without a license in violation of 22 U.S.C. § 2778
(2012).
Pulungan v. United States, 722 F.3d 983 (7th Cir.
2013). Pulungan was acquitted because the Government presented
no evidence from which a jury could find that the item was a
“defense article.”
But when the district court later granted
Pulungan a certificate of innocence, the Seventh Circuit
reversed. The court had no trouble concluding that Pulungan had
not satisfied the first part of the second predicate, i.e. he
had not proved that he did not commit “any of the acts charged.”
See id. at 985.
Remand was necessary to determine whether
Pulungan could satisfy the second part of the second predicate
–- whether he could prove that his acts did not constitute a
crime. Unlike Pulungan, Mills concedes (and the district court
held) that the acts he committed did constitute a crime
(violation of North Carolina law).
Remand is therefore
unnecessary here.
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were not crimes).
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Thus, the hypothetical defendant would have
satisfied his burden under the second § 2513 predicate.
Mills’s
contention
that
he,
like
the
hypothetical
But
defendant,
satisfies this burden fails.
Rather, in the same way that the act of “killing” can be
separated from “with malice aforethought” in the hypothetical,
the
act
of
“possession
of
a
firearm”
in
this
case
can
be
separated from “having been previously convicted of a felony.”
Mens rea and felon status are, to be sure, not exact analogues,
but both constitute requirements for certain crimes that can be
separated from the “acts charged.” 4
The only plausible reading of § 2513 is that possessing a
firearm is an “act charged” against Mills.
The district court
found and the record supports the finding that Mills possessed
two firearms.
Mills, 2013 WL 3864304 at *3.
challenge this finding.
Mills does not
Thus Mills did not, and cannot, prove
that he “did not commit any of the acts charged,” and so cannot
satisfy the first part of the second predicate of § 2513(a)(2).
Because he concedes that he also did not prove the alternative
second
part
of
that
predicate,
he
is
not
entitled
to
a
certificate of innocence.
4
Mills’s hypothetical also demonstrates that Mills himself
recognizes that the two parts of the second § 2513 predicate do
not collapse into each other, but instead set forth different
requirements.
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V.
Before concluding, we offer a few words about our friend’s
concurrence/dissent.
First, notwithstanding his suggestion to
the contrary, we of course agree that the text of the statute
controls here.
That text requires the result we have reached
here. 5
Despite his emphasis on the text, our colleague spends a
good
deal
of
time
plumbing
the
legislative
history.
Unquestionably, that history, like the plain language of the
statute, establishes that the two parts of the second predicate
are disjunctive.
Here, Mills conceded that he could not satisfy
the second part of the second predicate, and that is why our
holding that he cannot satisfy the first part of the second
predicate dooms his claim.
like
the
“wholly
innocent”
If a petitioner (unlike Mills but
postal
worker
described
by
the
dissent), could satisfy the second part of the second predicate
by demonstrating that the acts he committed did not constitute a
crime,
his
failure
to
satisfy
5
the
first
part
because
he
The text is clear: “acts charged,” though components of
“crimes charged,” are not themselves crimes. Nor do we read all
elements of a charged crime to be “acts charged,” as the dissent
suggests. Some elements denote a status, not an act. Although
the dissent dismisses Old Chief, the Court there made exactly
this point.
See Old Chief, 519 U.S. at 191-92 (describing the
distinction between “the element of felony-convict status” and a
§ 922(g) defendant’s “thoughts and actions in perpetrating the
offense for which he is being tried” (emphasis added)).
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committed any one of the acts charged would not hinder him from
obtaining a certificate of innocence.
Surprisingly, in spite of its focus on legislative history,
the dissent offers a construction of the statute at odds with
that history.
When amending the bill to make the two parts of
the second predicate disjunctive, Congress carefully broadened
the showing required to establish each part.
Thus while the
first part originally required a petitioner to show that he was
innocent
“of
the
crime
he
was
charged,”
it
now
requires
showing that he “did not commit any of the acts charged.”
Rep.
No.
75-2299
at
2
(1938)
(emphasis
added).
This
a
H.R.
shift
fatally undercuts the dissent’s suggestion that “acts charged”
simply
refers
to
suggestion
that
Similarly,
while
crimes
rests
the
on
identified
language
second
part
in
the
that
of
indictment
never
the
became
second
–-
a
law.
predicate
originally required a petitioner to prove he was “not guilty of
any other offense against the United States,” it now requires
proof that any of the “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.” 6
6
Congress’s decision to eliminate the word “other” from the
second part of the second predicate further indicates that it
intended that part to include “any of the acts charged.”
This
intention is clear from the plain meaning of the text; that is,
“acts charged” must be acts connected to “such charge.”
See
(Continued)
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Id.
Doc: 52
These
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changes
did
make
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the
statute
more
“definite
and
specific,” but not necessarily more generous to a petitioner.
Nor does our holding render either of the two parts of the
second predicate superfluous.
Some petitioners will be able to
satisfy only the first part of the second predicate; some will
satisfy
only
the
second
part
of
that
predicate;
some
will
satisfy both; and some, like Mills, will satisfy neither.
The
existence of the last group does not make the first part of the
second
predicate
redundant
or
unnecessary.
Rather,
that
provision, like every other part of § 2513, helps to identify
the persons to whom Congress did not wish to grant a certificate
of innocence –- persons, that is, who are not actually innocent.
Indeed, § 2513 can be given full effect only if a court
does not overlook any of its provisions.
hypothetical
rapist-burglar
--
charged
and
Thus, the dissent’s
convicted
only
of
rape, exonerated later by DNA, but guilty of burglary –- would
not be able to obtain a certificate of innocence.
Although he
could satisfy the second predicate, since he did not commit any
of the acts charged, he could not satisfy the third predicate,
because
the
neglect.”
burglary
would
surely
constitute
“misconduct
or
This hypothetical, like the others offered by our
H.R. Rep. No. 75-2299 at 2 (“In other words, the claimant must
be innocent of the particular charge and of any other crime or
offense that any of his acts might constitute.”).
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friend, does not alter our holding that the plain meaning of
§ 2513
reserves
a
certificate
of
innocence
for
the
truly
innocent.
VI.
In conclusion, we note that the second § 2513 predicate is
designed
to
deny
a
certificate
petitioners precisely like Mills.
of
actual
innocence
to
In many cases, a defendant
will have committed acts that constitute both a federal crime
and a state crime.
Often, only one crime will be charged --
usually
crime,
the
sentence.
federal
which
frequently
yields
a
higher
The decision to prosecute the federal crime rather
than the state crime does not demonstrate or imply that the
defendant
is
innocent
of
the
state
crime.
Nor
does
the
subsequent determination that the defendant is innocent of the
federal crime imply that he is innocent of the state crime.
These propositions lie at the heart of the second predicate.
Together with the first and third, the second predicate serves
to “separate from the group of persons whose convictions have
been reversed, those few who are in fact innocent of any offense
whatever.”
Betts, 10 F.3d at 1284 (quoting S. Rep. No. 75-202
(1937)).
Congress, in enacting the unjust conviction act and § 2513,
did
not
intend
to
“open[]
wide
17
the
door
through
which
the
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treasury
may
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be
assailed
by
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persons
erroneously
convicted.”
Graham, 608 F.3d at 171 (citing United States v. Brunner, 200
F.2d 276, 280 (6th Cir. 1952)).
See also id. at 172 (noting
that because § 2513 serves as the basis for a claim against the
Government, it should be strictly construed rather than extended
to cases not plainly within its terms).
The second predicate
plainly
of
adjudged
excludes
that
he
Mills
is
from
not
the
“truly
purview
innocent,”
§
2513;
United
Congress
States
v.
Racing Servs., Inc., 580 F.3d 710, 712 (8th Cir. 2009), and we
cannot displace that assessment.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
18
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FLOYD, Circuit Judge, dissenting in part and concurring in the
result:
I
agree
that
the
district
court
did
not
abuse
discretion in denying Mills a certificate of innocence.
its
Unlike
the majority, however, I would hold that Mills failed to satisfy
only the third predicate of 28 U.S.C. § 2513.
Specifically, I
disagree with the majority’s assertion that the second predicate
permits only “truly innocent” plaintiffs to recover.
Although
this construction has appeal as a matter of policy, it is not
supported
by
the
statute’s
plain
language.
Accordingly,
I
respectfully dissent.
I.
A.
To
bring
an
action
under
28
U.S.C.
§
1495
for
damages
following a wrongful conviction, Mills must “allege and prove”
each of three statutory predicates.
First, he must show that a
court has “reversed or set aside” his conviction “on the ground
that he is not guilty of the offense of which he was convicted.”
28 U.S.C. § 2513(a).
Second, he must demonstrate either that he
“did not commit any of the acts charged” (“Predicate 2(a)”) or
that
“his
acts,
deeds,
or
omissions
in
connection
with
such
charge constituted no offense against the United States or any
State,
Territory,
or
the
District
19
of
Columbia”
(“Predicate
Appeal: 13-7358
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2(b)”).
Id.
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And third, he must show that he “did not by
misconduct or neglect cause or bring about his own prosecution.”
Id.
The majority finds that Mills failed to satisfy Predicate
2(a), i.e. the “any of the acts charged” predicate. 1
According
to the majority’s construction, Mills must show that he did not
commit any of the elements of each crime charged—even if some
elements,
noncriminal.
standing
alone,
Ante at 9–10. 2
are
inherently
innocent
and
This construction is unsupported by
both legislative history and the plain text of the statute.
B.
The majority makes much of the fact that Congress intended
“to ensure that only a truly innocent petitioner is eligible
1
Mills concedes that he cannot satisfy Predicate 2(b)
because “his acts . . . in connection with such charge”
constituted the uncharged North Carolina offense of possessing a
firearm while a convicted felon.
See N.C. Gen. Stat. § 14415.1(a). Thus, he may only receive a certificate of innocence
if he can satisfy Predicate 2(a) by showing that he committed
none of the “acts charged.”
2
Although the majority notes that not every element of
every offense will be an “act charged” for purposes of § 2513,
the opinion fails to provide guidance to district courts tasked
with making this determination.
In the absence of controlling
precedent, a district judge has near-unfettered discretion to
decide which elements will be deemed “acts” that the petitioner
must prove he or she did not commit.
This construction will
therefore have the effect of interpreting “any of the acts
charged” to mean “any of the elements of any of the acts
charged.”
20
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for” relief.
Pg: 21 of 30
Ante at 6 (emphasis added).
As the legislative
history reveals, however, Congress drafted the final statute in
a way that makes it impossible to limit relief to the “truly
innocent.”
In the text of the bill first introduced and passed by the
Senate in 1937, the petitioner was required to show that he was
innocent “of the crime with which he was charged and not guilty
of any other offense against the United States.”
No. 75-2299 at 2 (1938) (emphasis added).
See H.R. Rep.
This provision was
included in order “to cover cases where the indictment may fail
on
the
original
count,
but
claimant
may
yet
be
guilty
of
another” uncharged offense. Edwin M. Borchard, State Indemnity
for
Errors
of
Criminal
Justice,
S.
Doc.
No.
62-974,
at
31
(1912).
Had
the
satisfied
Senate
this
bill
been
statutory
enacted,
Mills
could
predicate—although
his
not
have
federal
conviction was overturned, his conduct was concededly an offense
against the state of North Carolina.
But the Senate version was
not enacted.
Out of concern that the Senate language was “not
definite
and
specific
replaced
it
relief.
H.R. Rep. No. 75-2299 at 2.
with
the
enough,”
language
the
House
under
Judiciary
which
Mills
Committee
now
seeks
The law, as enacted,
replaces the Senate’s “and” with the present disjunctive “or.”
While the Senate bill would have limited relief only to those
21
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“in
Doc: 52
fact
Filed: 12/08/2014
States,
innocent
10
F.3d
of
any
1278,
Pg: 22 of 30
offense
1284
whatever,”
(7th
Cir.
enacted does not impose such a limit.
Betts
1993),
the
v.
United
statute
as
Instead, § 2513 provides
relief to petitioners who are innocent of the crime charged but
nevertheless responsible for other, uncharged crimes—that is, to
people who are not, in fact, innocent of any offense whatever.
C.
The majority, in attempting to shoehorn the statute into
its narrow conception of actual innocence, “inserts an Alice-inWonderland
analysis
into
what
should
be
a
straightforward
question of statutory construction.” United States v. Kerr, 737
F.3d
33,
40
(4th
Cir.
2013)
(Davis,
J.,
dissenting).
When
statutory “language is plain, a court’s ‘sole function . . . is
to
enforce
it
according
to
its
terms.’”
United
States
v.
Spinks, 770 F.3d 285, 289 n.3 (4th Cir. 2014) (quoting Lamie v.
U.S. Trustee, 540 U.S. 526, 534 (2004)). In construing Predicate
2(a), the majority disregards the statute’s plain language and
instead
reads
“acts”
to
mean
“elements.”
To
satisfy
the
predicate, Mills need only prove that he “did not commit any of
the acts charged”—not that he did not commit any of the elements
of those acts.
We have already construed “any of the acts charged” to mean
acts
rather
than
elements.
In
22
United
States
v.
Graham,
my
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colleague
Filed: 12/08/2014
in
the
majority
Pg: 23 of 30
found
that
the
second
statutory
predicate “requires a petitioner to prove that he did not commit
the
charged
criminal
acts
or
that
they
do
not
constitute
a
crime.” 608 F.3d 164, 176 (4th Cir. 2010) (Motz, J.) (emphasis
added).
In addition to being wholly unsupported by usage and
precedent, the majority’s novel statement that “‘acts charged’ .
.
.
are
not
themselves
crimes”
is
irreconcilable
with
the
construction we adopted in Graham. See ante at 14 n.5.
The
words
“act”
and
concepts in criminal law.
“element”
refer
to
two
different
An element is a constituent part of a
crime that the prosecution must prove beyond a reasonable doubt
in order to sustain a conviction.
Black’s Law Dictionary 634
(10th ed. 2014); see also United States v. Hayes, 55 U.S. 415,
422 & n.4 (2009) (noting that conceptually distinct attributes
of a crime, e.g. the action taken by the defendant and his or
her relationship to the victim, cannot constitute one element).
A criminal act, however, is “[a]n unlawful act that subjects the
actor to prosecution under criminal law,” more commonly known as
a crime.
id.
at
Black’s Law Dictionary 30 (10th ed. 2014); see also
451
(defining
crime
as
“an
act
that
the
of
more
law
makes
punishable”).
Because
element,
the
criminal
acts
majority’s
often
consist
construction
23
will
lead
to
than
an
one
absurd
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result in this and other cases. 3
For example, to convict a
defendant under 18 U.S.C. § 1709, which prohibits the theft of
mail
by
elements
a
postal
beyond
a
employee,
the
reasonable
government
doubt:
(1)
must
that
prove
the
three
defendant
deliberately took an item that had been mailed; (2) that the
defendant knew that he or she had no authority to take the item;
and (3) that the defendant was a United States Postal Service
employee
when
Stewart,
127
(unpublished
he
F.3d
table
or
she
1101
took
at
*1
decision).
the
item.
(4th
Cir.
A
United
1997)
hypothetical
States
(per
postal
v.
curiam)
worker
found to have been wrongfully convicted under § 1709 could show
that he did not commit the criminal act of stealing mail.
He
could never show, however, that he was “innocent” of one of
§ 1709’s elements: being an employee of the U.S. Postal Service.
3
When a crime has multiple elements, it is quite often
because it is the confluence of those elements that creates
societal harm. Such crimes typically require proof of at least
one element that, standing alone, would be wholly innocent.
See, e.g., 18 U.S.C. § 47 (conviction for impermissibly hunting
certain wild horses or burros requires proof that defendant used
an aircraft or motor vehicle); 18 U.S.C. § 873 (conviction for
blackmail requires proof that defendant threatened to report a
criminal violation); 18 U.S.C. § 1621 (conviction for perjury
requires proof that defendant took an oath); 18 U.S.C. § 1921
(conviction for receiving federal employees’ compensation after
marriage requires proof that defendant married); 18 U.S.C.
§ 2191 (conviction for cruelty to seamen requires proof that
defendant was the master or officer of a vessel of the United
States). Under the majority’s reading, a person wrongfully
convicted of any of these crimes would be unable to satisfy
Predicate 2(a).
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Therefore, under the majority’s construction of “any of acts
charged,” the wholly innocent postal worker would be unable to
satisfy Predicate 2(a) simply because he is a postal worker.
Congress surely did not intend this result.
The House Report also supports reading the word “acts” to
mean “acts.”
According to the Report, the “any of the acts
charged” prong refers to the particular crime(s) for which the
petitioner was wrongfully convicted, while the “[no] crime or
offense”
arising
prong
from
wrongfully
refers
the
same
convicted.
interpretation
is
to
other,
acts
for
uncharged
which
criminal
the
conduct
petitioner
H.R.
Rep.
No.
75-2299
consistent
with
the
plain
at
2.
meaning
was
This
of
the
statutory text, and ensures that each prong imposes a different
and independently sufficient requirement.
The majority's construction, on the other hand, collapses
the two prongs by effectively swapping the word “or” for “and.” 4
4
The majority’s construction would still permit relief for
someone who cannot satisfy the “[no] crime or offense” prong
because he or she committed a wholly different but uncharged
crime.
For example, a man whose conviction for rape during an
uncharged burglary was overturned on the basis of DNA evidence
would not be able to satisfy the “[no] crime or offense” prong
because of the burglary, but would be able to satisfy the “any
of the acts charged” prong because he did not commit any of the
elements of rape. This result is at odds with the majority’s
view that § 2513 “ensure[s] that only a truly innocent
petitioner is eligible for a certificate of innocence,” but is
nevertheless required by the disjunctively written statute.
Ante at 6.
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See ante at 15 n.6 (positing that Congress intended the “[no]
crime or offense” prong to include the “any of the acts charged”
prong).
By way of example, consider a person whose conviction
under 18 U.S.C. § 81 for malicious burning of military property
is overturned because the building he burned was not on military
soil.
The hypothetical defendant will not be able to satisfy
Predicate 2(b) (the “[no] other crime or offense” prong) because
his conduct constitutes state-law arson.
Under the majority’s
construction, he also will not be able to satisfy Predicate 2(a)
(the
“any
of
constituting
necessarily
offense.
and
the
the
an
acts
charged”
uncharged
element
prong)
state
of
the
because
crime
the
(i.e.
originally
conduct
burning)
charged
is
federal
This construction renders Predicate 2(a) superfluous
not
independently
impermissible.
sufficient,
and
is
therefore
See Corley v. United States, 556 U.S. 303, 314
(2009) (“[O]ne of the most basic interpretive canons . . . [is]
that a statute should be construed so that effect is given to
all
its
provisions,
superfluous
or
void
so
that
or
no
part
insignificant
will
.
be
.
inoperative
.
.”
or
(internal
quotation marks omitted)).
The majority’s construction also runs afoul of our “duty to
give
effect,
statute.”
(1955).
if
United
possible,
States
v.
to
every
Menasche,
clause
348
and
U.S.
word
528,
of
a
538–39
Predicate 2(b) requires a petitioner to show that his
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or her “acts, deeds, or omissions” did not constitute a crime in
any jurisdiction.
28 U.S.C. § 2513(a)(2).
By reading “acts” to
mean “actions,” the majority renders the word “deeds” redundant
and unnecessary.
is,
Construing “acts” to mean “criminal acts”—that
understanding
better
reading
“acts”
because
contextually
it
gives
as
effect
a
term
of
art—is
to
each
word
of
a
the
statute.
I would therefore hold that the second statutory predicate
of § 2513 is satisfied when a petitioner alleges and proves
either (a) that he or she did not commit any of the criminal
acts charged in the original indictment, or (b) that his or her
conduct arising from the same transaction or occurrence as the
charged
conduct
does
not
constitute
an
additional,
uncharged
state or federal crime.
D.
Mills has satisfied the second predicate of § 2513.
charged
in
a
one-count
possession of a firearm.
indictment
with
being
a
He was
felon
in
His conviction was vacated because,
under the rule we announced in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), at the time of his arrest
Mills had not been convicted of a crime punishable for a term
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exceeding one year within the meaning of 18 U.S.C. § 922(g)(1). 5
He did not commit the act of possessing a firearm while a felon—
the only crime charged—and the government does not argue to the
contrary.
Congress did not intend to deny relief to a person
actually innocent of possessing a firearm while a felon just
because
he
committed
possessing a firearm. 6
U.S.
570,
592
(2008).
the
constitutionally
protected
act
of
Cf. District of Columbia v. Heller, 554
I
would
therefore
hold
that
Mills
5
This is distinguishable from the case in Osborn v. United
States, in which the petitioner’s conviction was reversed solely
because the military court-martial that had convicted him was
without jurisdiction.
322 F.2d 835, 840 (5th Cir. 1963).
There, the court found that because the military indictment
charged the petitioner with murder and he was unable to prove
that he did not commit the murder, he failed to satisfy the “any
of the acts charged” prong.
Id. at 842. Here, on the other
hand, Mills has shown that he did not commit the only act
charged in the indictment: possessing a firearm while a felon.
6
The majority’s view that § 922(g) criminalizes the mere
possession of a firearm “and then applies the statute only to a
limited subset of people” is fundamentally inconsistent with
Heller and unsupported by United States v. Old Chief, 519 U.S.
172 (1997).
There, the Supreme Court held only that for
purposes of Federal Rule of Evidence 403 balancing, the specific
nature of the prior offense of conviction is more prejudicial
than probative when a defendant is willing to stipulate to a
prior felony conviction within the meaning of § 922(g).
519
U.S. at 185–86.
That a defendant’s “felony-convict status”
lacks narrative force is entirely irrelevant to the question of
what criminal act is proscribed by § 922(g). A person, such as
Mills, who has never been convicted of a crime punishable for a
term exceeding one year is factually and legally incapable of
committing the criminal act of being a felon in possession of a
firearm.
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satisfied the “any of the acts charged” prong of the second
predicate of § 2513.
II.
The third predicate of § 2513 requires Mills to show that
“he did not by misconduct or neglect cause or bring about his
own prosecution.”
28 U.S.C. § 2513(a)(2).
Because the majority
found that Mills failed to prove the second statutory predicate,
it did not reach this predicate.
I would hold that Mills’s
prosecution arose from his own neglect and that he therefore
cannot satisfy the third predicate. 7
“[T]he background presumption must be that ‘every citizen
knows the law.’”
United States v. Fuller, 162 F.3d 256, 262
(4th Cir. 1998) (quoting Bryan v. United States, 524 U.S. 184,
193 (1998)).
Thus, when he pawned the two firearms, Mills knew
or should have known that under the prevailing interpretation of
§ 922(g) he was violating federal law.
Even if Mills genuinely
believed that our pre-Simmons interpretation of § 922(g) was
7
I would not hold, however, that Mills's possession of
firearms
constitutes
"misconduct"
that
brought
about
his
prosecution. We held in United States v. Graham that to act as
a bar to relief, "misconduct" must constitute a "reasonable
basis for Government officers to prosecute."
608 F.3d at 173.
It is manifestly unreasonable to prosecute someone who has never
been convicted of a crime punishable for a term exceeding one
year under Section 922(g). Therefore, Mills’s possession of a
firearm was not misconduct within the meaning of § 2513(a)(2).
29
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incorrect,
he
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is
charged
Pg: 30 of 30
with
the
knowledge
that
his
interpretation of the statute was at odds with governing Circuit
law.
A
prosecution
reasonable
will
person
comply
wishing
with
the
law
to
as
avoid
arrest
interpreted
by
and
the
courts, even if he believes that interpretation to be error.
Mills acted with neglect in possessing the two firearms,
and this neglect brought about his prosecution.
He therefore
cannot satisfy the third predicate of § 2513.
III.
For the above reasons, I agree that the district court did
not
abuse
its
discretion
certificate of innocence.
in
declining
to
grant
Mills
a
In reaching this result, however, the
majority has interpreted the “any of the acts charged” prong of
§ 2513’s second predicate in a manner that is unsupported by the
statutory text.
I therefore respectfully dissent from Parts
III, IV, V, and VI but concur in the result.
30
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