United States v. Davis ( 2021 )

Case: 20-30593 Document: 00516104127 Page: 1 Date Filed: 11/22/2021
REVISED 11/22/2021
United States Court of Appeals United States Court of Appeals
for the Fifth Circuit Fifth Circuit
FILED
November 1, 2021
Lyle W. Cayce
No. 20-30593
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elaine Davis,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CR-155
Before King, Smith, and Haynes, Circuit Judges.
King, Circuit Judge:
After we reversed Defendant Elaine Davis’s convictions for
conspiracy to commit health care fraud and health care fraud, Davis, who had
been incarcerated for approximately one year, filed a motion for issuance of
a certificate of innocence. The district court denied her motion, and Davis
now appeals. For the reasons that follow, we AFFIRM.
Case: 20-30593 Document: 00516104127 Page: 2 Date Filed: 11/22/2021
No. 20-30593
I. BACKGROUND
In United States v. Ganji, 880 F.3d 760 (5th Cir. 2018), this court
reversed Defendant Elaine Davis’s convictions for health care fraud and
conspiracy to commit health care fraud because the convictions were based
on insufficient evidence. Davis had been incarcerated for approximately one
year before this reversal. Following the Ganji decision, Davis filed a motion
for issuance of a certificate of innocence arguing that she fulfilled the
requirements in 28 U.S.C. § 2513 (the Unjust Conviction and Imprisonment
Statute) and, in the alternative, that the statute is unconstitutional in light of
the Supreme Court’s decision in Nelson v. Colorado. 1 A magistrate judge held
an oral argument and subsequently recommended denial of Davis’s motion.
The district court allowed for supplemental briefing, heard oral argument,
and subsequently denied Davis’s motion, adopting and supplementing the
magistrate judge’s report and recommendation. Davis timely appealed,
presenting us with the following two issues: (1) whether Davis is entitled to a
certificate of innocence under 28 U.S.C. § 2513 and (2) whether § 2513’s
requirement of an affirmative showing of innocence is unconstitutional.
II. STANDARD OF REVIEW
The parties do not contest the abuse-of-discretion standard for
reviewing a district court’s denial of a certificate of innocence under 28
U.S.C. § 2513. However, today we join other circuits and adopt the abuse-of-
discretion standard. 2 Constitutionality challenges to federal statutes,
1
137 S. Ct. 1249 (2017).
2
Until now this has been an open question in our circuit. See Hernandez v. United
States, 888 F.3d 219, 222-23 (5th Cir. 2018). Other circuits have explicitly adopted the
abuse-of-discretion standard of review. See United States v. Graham, 608 F.3d 164, 172 (4th
Cir. 2010); United States v. Grubbs, 773 F.3d 726, 731 (6th Cir. 2014); Betts v. United States,
2
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however, are reviewed de novo. United States v. Jones, 132 F.3d 232, 239 (5th
Cir. 1998).
III. DISCUSSION
We begin by determining whether the district court erred in denying
Davis’s motion for a certificate of innocence; then, we turn to her
constitutionality challenge.
A. Denial of the Motion for Certificate of Innocence
The “default [burden of proof] for civil cases” is the preponderance
of the evidence. CIGNA Corp. v. Amara, 563 U.S. 421, 444 (2011). We join
the other circuits that have found that this default burden of proof applies to
motions for certificates of innocence. 3 A person seeking a certificate of
innocence under 28 U.S.C. § 2513 is required to 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.
10 F.3d 1278, 1283 (7th Cir. 1993); United States v. Racing Servs., Inc., 580 F.3d 710, 711-12
(8th Cir. 2009); Rigsbee v. United States, 204 F.2d 70, 72-73 & n.3 (D.C. Cir. 1953).
3
See United States v. Grubbs, 773 F.3d 726, 733 (6th Cir. 2014); Abu-Shawish v.
United States, 898 F.3d 726, 739 (7th Cir. 2018); Holmes v. United States, 898 F.3d 785, 789
(8th Cir. 2018); United States v. Abreu, 976 F.3d 1263, 1270 (11th Cir. 2020).
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28 U.S.C. § 2513(a). The government conceded that Davis satisfied the first
requirement. The second prong is the focus of the dispute.
Under that prong, Davis had to prove that she “did not commit any
of the acts charged” 4 and that she “did not by misconduct or neglect cause
or bring about [her] own prosecution.” Id. § 2513(a)(2). The district court
did not abuse its discretion in finding that Davis did not prove by a
preponderance of the evidence that she “did not commit any of the acts
charged” (i.e., the first requirement of § 2513(a)(2)).
Davis was charged with conspiracy to commit health care fraud as well
as health care fraud, and she relies only on the trial record and our opinion in
Ganji to show that she did not commit the acts associated with those charges.
In Ganji, regarding the conspiracy charge, our court acknowledged that “the
direct evidence favors Davis” because the government’s witnesses testified
that Davis had never explicitly entered into an agreement with them. Ganji,
880 F.3d at 773. However, “[a]greements need not be spoken or formal, and
the Government can use evidence of the conspirators’ concerted actions to
prove an agreement existed.” Id. at 767. Our court went no further than
concluding that the government “did not implicate Davis in the scheme with
proof beyond a reasonable doubt.” Id. at 777. Similarly, regarding the fraud
charges, this court found that the government presented “insufficient
evidence to show that [Davis] knowingly executed a scheme to defraud
Medicare.” Id. at 778. Thus, it was within the district court’s discretion to
4
As indicated by the word “or,” the subsection requires only that a plaintiff prove
either that she “did not commit any of the acts charged” or her “acts, deeds, or omissions
in connection with such charge constituted no offense.” 28 U.S.C. § 2513(a)(2). Davis’s
argument focuses on the acts charged in the indictment, so we restrict our analysis to the
former requirement.
4
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find that Davis did not satisfy her burden to prove her actual innocence of the
acts charged.
Davis was required under 28 U.S.C. § 2513(a)(2) to prove her lack of
misconduct or neglect in addition to her actual innocence of the charged acts.
Because Davis did not prove her actual innocence, we need not wade into the
circuit split interpreting “misconduct or neglect” in that same prong.
B. Constitutionality of § 2513(a)’s Requirement to Prove Innocence
Davis relies on the Supreme Court’s holding and rationale in Nelson
v. Colorado, 137 S. Ct. 1249 (2017) to argue that 28 U.S.C. § 2513(a)’s
requirement of an affirmative showing of innocence is unconstitutional.
However, the issue in Nelson and the issue here are meaningfully different,
making the Court’s holding in Nelson inapplicable. In Nelson, the defendants
(whose convictions were reversed) moved for refunds of restitution, fees, and
costs they paid upon their convictions. Notably, the Colorado law scrutinized
in Nelson also allowed for compensation including $70,000 per year of
incarceration, compensation for child support, and reasonable attorney’s fees
for bringing the compensation claim. Id. at 1254 n.6. However, the petitioners
in Nelson did not request compensation, so the constitutionality of that part
of the statute was not at issue.
Here, Davis is attempting to receive damages for her incarceration
under 28 U.S.C. § 1495. See also 28 U.S.C. § 2513(e) (providing the damages
cap). Davis’s interest in receiving damages for her wrongful conviction is not
about “the continuing deprivation of property after a conviction has been
reversed.” Nelson, 137 S. Ct. at 1255. Rather, she seeks something above and
beyond her existing rights. “The American legal system has long treated
compensation for the economic consequences of a reversed conviction very
differently from the refund of fines and other payments made by a defendant
pursuant to a criminal judgment.” Id. at 1261 (Alito, J., concurring). This is
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exactly the distinction the district court made. Accordingly, the district court
did not err in finding Nelson inapplicable to this case on the question of
constitutionality.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
6