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
Carolina, for Appellee.
2
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. Mills had a lengthy criminal history, including seven
prior North Carolina felony convictions for breaking and
entering and one conviction for larceny. 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. He argued that Simmons
rendered his conviction for being a felon in possession in
3
violation of § 922(g)(1) improper. The Government did not
oppose the motion. Accordingly, on October 4, 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 of
actual innocence under 28 U.S.C. § 2513 (2012). A person must
obtain such a certificate before recovering damages from the
Government for unjust imprisonment under 28 U.S.C. § 1495
(2012). The Government moved to dismiss Mills’s motion for a
certificate of innocence, contending that Mills had failed to
prove two of the three required predicates for such a
certificate. The district court denied Mills’s motion. United
States v. Mills, 2013 WL 3864304 (E.D.N.C. July 24, 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:
4
(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. See United States
v. Graham, 608 F.3d 164 (4th Cir. 2010). 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 against the United States, or any
State, Territory or the District of Columbia. 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. In Graham,
we recognized that “Congress clearly did not provide in the
unjust conviction and imprisonment act an avenue for monetary
5
compensation to all whose criminal convictions are reversed
after incarceration.” Id. at 171. Rather, the provisions of
§ 2513 work in tandem to ensure that only a truly innocent
petitioner is eligible for a certificate of innocence and
subsequent compensation from the Government. 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 case, the district court recognized that Mills
satisfied the first predicate but denied the certificate of
innocence on the ground that Mills failed to carry his “rigorous
6
burden” with respect to the third predicate. Mills, 2013 WL
3864304 at *4. We may affirm, however, on the ground that Mills
failed to establish any one of the three predicates. See, e.g.,
United States v. Moore, 709 F.3d 287, 293 (4th 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, or any State, Territory or the
District of Columbia.” 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).
7
The district court 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 for state felonies, nevertheless
possessed two firearms. 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 no offense against . . . any State,” as
required by the second part of the second 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 commit the acts charged.”
Mills, 2013 WL 3864304, at *3.
8
The first part of the 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, he is not eligible for a certificate of innocence.
With this understanding of the statute in mind, 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 of a crime
punishable by more than one year in prison. 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).
9
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. It simply means the act was not a federal
crime. The Supreme Court, in Old Chief v. United States, 519
U.S. 172 (1997), expressly endorsed this construction of
§ 922(g). There, the Court held that a defendant’s “felony-
convict status” is “an element entirely outside the natural
sequence of what the defendant is charged with thinking or
doing” in a § 922(g)(1) prosecution. Id. at 191.
Moreover, Mills’s approach would render § 2513(a)(2)
internally inconsistent. Like the defendant in Osborn v. United
States, Mills improperly treats the “alleged criminal acts as
indistinguishable from the statutory provisions [here,
§ 922(g)(1)] under which he was charged.” 322 F.2d 835, 841
(5th Cir. 1963). 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 § 2513(a)(2). Under such an approach, every
reversal of a federal conviction would necessitate the
10
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 prove that his acts did not
violate federal or state law. 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.
11
charged” and “the offense 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, or any State, Territory, or the District of
Columbia.” § 2513(a)(2). Accordingly, although 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.
12
were not crimes). Thus, the hypothetical defendant would have
satisfied his burden under the second § 2513 predicate. But
Mills’s contention that he, like the hypothetical 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. Mills does not
challenge this finding. 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.
13
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. If a petitioner (unlike Mills but
like the “wholly innocent” 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 the first part because he
5
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)).
14
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 a
showing that he “did not commit any of the acts charged.” H.R.
Rep. No. 75-2299 at 2 (1938) (emphasis added). This shift
fatally undercuts the dissent’s suggestion that “acts charged”
simply refers to crimes identified in the indictment –- a
suggestion that rests on language that never became law.
Similarly, while the second part of the second 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)
15
Id. These changes did make 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. Thus, the dissent’s
hypothetical rapist-burglar -- charged and 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 burglary would surely constitute “misconduct or
neglect.” 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.”).
16
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 of actual innocence to
petitioners precisely like Mills. 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 the federal crime, which frequently yields a higher
sentence. 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 the door through which the
17
treasury may be assailed by 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 excludes Mills from the purview of § 2513; Congress
adjudged that he is not “truly innocent,” United 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
FLOYD, Circuit Judge, dissenting in part and concurring in the
result:
I agree that the district court did not abuse its
discretion in denying Mills a certificate of innocence. 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 of Columbia” (“Predicate
19
2(b)”). Id. 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, standing alone, are inherently innocent and
noncriminal. Ante at 9–10. 2 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. § 14-
415.1(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
for” relief. 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.” See H.R. Rep.
No. 75-2299 at 2 (1938) (emphasis added). 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 Senate bill been enacted, Mills could not have
satisfied this statutory predicate—although his 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 enough,” the House Judiciary Committee
replaced it with the language under which Mills now seeks
relief. H.R. Rep. No. 75-2299 at 2. 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
“in fact innocent of any offense whatever,” Betts v. United
States, 10 F.3d 1278, 1284 (7th Cir. 1993), the statute as
enacted does not impose such a limit. 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-in-
Wonderland 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 United States v. Graham, my
22
colleague in the majority 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 “element” refer to two different
concepts in criminal law. 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. Black’s Law Dictionary 30 (10th ed. 2014); see also
id. at 451 (defining crime as “an act that the law makes
punishable”).
Because criminal acts often consist of more than one
element, the majority’s construction will lead to an absurd
23
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 a postal employee, the government must prove three
elements beyond a reasonable doubt: (1) that the 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 he or she took the item. United States v.
Stewart, 127 F.3d 1101 at *1 (4th Cir. 1997) (per curiam)
(unpublished table decision). A hypothetical postal 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).
24
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” prong refers to other, uncharged criminal conduct
arising from the same acts for which the petitioner was
wrongfully convicted. H.R. Rep. No. 75-2299 at 2. This
interpretation is consistent with the plain meaning 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.
25
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 the acts charged” prong) because the conduct
constituting the uncharged state crime (i.e. burning) is
necessarily an element of the originally charged federal
offense. This construction renders Predicate 2(a) superfluous
and not independently sufficient, and is therefore
impermissible. 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, so that no part will be inoperative or
superfluous or void or insignificant . . . .” (internal
quotation marks omitted)).
The majority’s construction also runs afoul of our “duty to
give effect, if possible, to every clause and word of a
statute.” United States v. Menasche, 348 U.S. 528, 538–39
(1955). Predicate 2(b) requires a petitioner to show that his
26
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. Construing “acts” to mean “criminal acts”—that
is, understanding “acts” contextually as a term of art—is a
better reading because it gives effect to each word of 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. He was
charged in a one-count indictment with being a felon in
possession of a firearm. 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
27
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 the constitutionally protected act of
possessing a firearm. 6 Cf. District of Columbia v. Heller, 554
U.S. 570, 592 (2008). 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.
28
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
incorrect, he is charged with the knowledge that his
interpretation of the statute was at odds with governing Circuit
law. A reasonable person wishing to avoid arrest and
prosecution will comply with the law as interpreted by 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 in declining to grant Mills a
certificate of innocence. 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