In the United States Court of Federal Claims
No. 21-1574C
(Filed: May 27, 2022)
)
MHAMMAD ABU-SHAWISH, )
) Unjust Conviction and Imprisonment
Pro Se Plaintiff, ) Act; 28 U.S.C. §§ 1495, 2513;
v. ) Damages; Period of Incarceration; Pre-
) Trial Detention
THE UNITED STATES, )
)
Defendant. )
)
Mhammad Abu-Shawish, Milwaukee, WI, pro se.
Geoffrey M. Long, Civil Division, United States Department of Justice, Washington, DC,
with whom were Brian M. Boynton, Principal Deputy Assistant Attorney General,
Patricia M. McCarthy, Director, and Steven J. Gillingham, Assistant Director, for
defendant.
OPINION
FIRESTONE, Senior Judge.
In 2006, pro se plaintiff Mhammad Abu-Shawish was convicted of federal
program fraud in the United States District Court for the Eastern District of Wisconsin.
His conviction was eventually overturned, and on July 27, 2020, Mr. Abu-Shawish
received a “certificate of innocence” from the Eastern District of Wisconsin pursuant to
the Unjust Conviction and Imprisonment Act, 28 U.S.C. §§ 1495, 2513. Once a plaintiff
obtains a certificate of innocence, the Act authorizes the court to award $50,000 for each
12-month “period of incarceration” due to an unjust conviction, id. § 2513(e), to
compensate for the plaintiff’s “loss of liberty,” Crooker v. United States, 828 F.3d 1357,
1363 (Fed. Cir. 2016) (per curiam).
Mr. Abu-Shawish seeks compensation under the Act for four periods of time: (1)
574 days spent in pre-trial detention; (2) 486 days spent incarcerated in federal prison; (3)
six months spent in the custody of United States Immigration and Customs Enforcement
(“ICE”) for deportation proceedings following his release; and (4) six months spent
awaiting a decision from the United States Court of Appeals for the Seventh Circuit on
his appeal of his federal program fraud conviction, during which he was not in custody.
See Compl. at 5, ECF No. 1; Def.’s Mot. at 14, ECF No. 18; Pl.’s Resp. at 1-4, ECF No.
22. In total, Mr. Abu-Shawish seeks compensation for 1,425 days.
Now pending before the court is the government’s motion for partial summary
judgment. The government concedes that Mr. Abu-Shawish is entitled to compensation
for 486 days, the period of post-conviction incarceration time related to his unjust federal
program fraud conviction. Def.’s Mot. at 14. However, the government argues that the
additional periods of time sought by Mr. Abu-Shawish are not compensable under the
Act. Id. at 14-19.
For the reasons discussed below, the court concludes that Mr. Abu-Shawish is not
entitled to compensation under the Act for his time in ICE custody or while free and
awaiting appeal. However, Mr. Abu-Shawish is entitled to compensation for a portion of
the time he spent in pre-trial detention in addition to the 486 days of post-conviction
2
incarceration time for which the parties agree he should be compensated.1 The
government’s motion for partial summary judgment is therefore GRANTED IN PART
and DENIED IN PART, and the court sua sponte GRANTS IN PART summary
judgment in favor of Mr. Abu-Shawish. Mr. Abu-Shawish is entitled to compensation for
956 days of incarceration, totaling $130,958.90 in damages.
I. STATUTORY BACKGROUND
The Unjust Conviction and Imprisonment Act provides this court with
“jurisdiction to render judgment upon any claim for damages by any person unjustly
convicted of an offense against the United States and imprisoned.” 28 U.S.C. § 1495.
“The Act has the beneficent purpose of attempting to compensate, as well as money can
compensate such an injury, [a] plaintiff for loss of his liberty through an error on the part
of his government.” Crooker, 828 F.3d at 1363 (internal quotation and alteration
omitted).
To succeed on a claim for damages under the Act, a plaintiff must allege and
prove that his conviction “has been reversed or set aside on the ground that he is not
guilty of the offense of which he was convicted.” 28 U.S.C. § 2513(a)(1). A plaintiff
must also show that 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, . . . and he did not by misconduct or neglect cause or bring about his own
1
Def.’s Mot. at 14; Pl.’s Resp. at 2 (agreeing “with the calculation provided by the government”
for the post-conviction incarceration period).
3
prosecution.” Id. § 2513(a)(2). The Act further provides that “[p]roof of the requisite
facts shall be by a certificate of the court . . . wherein such facts are alleged to appear, and
other evidence thereof shall not be received.” Id. § 2513(b). This proof is often referred
to as a “certificate of innocence.” See, e.g., Allen v. United States, 153 Fed. Cl. 386, 391
(2021). Once a plaintiff obtains a certificate of innocence from the appropriate district
court, “[t]he amount of damages awarded” under the Act by this court “shall not exceed .
. . $50,000 for each 12-month period of incarceration.” 28 U.S.C. § 2513(e).2
II. FACTUAL AND PROCEDURAL BACKGROUND
The following undisputed facts are taken from the parties’ joint stipulation of
undisputed facts, the parties’ briefs, and the exhibits accompanying these filings.
A. Mr. Abu-Shawish is Charged with Visa and Federal Program Fraud in
Case No. 03-cr-211 (E.D. Wis.)
On October 2, 2003, the government filed a criminal complaint against Mr. Abu-
Shawish in the United States District Court for the Eastern District of Wisconsin, Case
No. 03-cr-211. Joint Stip. ¶¶ 1-2, 6, Ex. 1 at 8-28,3 ECF No. 17. On October 3, 2003,
Mr. Abu-Shawish was arrested, detained, and, on October 7, 2003, indicted on three
counts, covering two sets of facts. Id. ¶¶ 3-5, Exs. 3-4. The first two counts centered on
representations allegedly made by Mr. Abu-Shawish for purposes of securing visas for
2
The Act provides for a higher damages award for plaintiffs “unjustly sentenced to death.” 28
U.S.C. § 2513(e).
3
The citations to the exhibits to the parties’ joint stipulation use the pagination assigned to the
exhibits by the court’s CM/ECF system.
4
foreign nationals. Id., Ex. 4 at 35-38. On this set of facts, Mr. Abu-Shawish was charged
with conspiracy to commit visa fraud and with visa fraud. Id.
Mr. Abu-Shawish was also charged with one count of federal program fraud. Id.,
Ex. 4 at 39-40. On this set of facts, Mr. Abu-Shawish was alleged to have fraudulently
secured federal community development block grant funds, administered by the City of
Milwaukee, when he submitted a development plan to the City that had already been
completed and paid for by another organization. Id.
On October 10, 2003, the district court ordered Mr. Abu-Shawish detained
pending trial on these charges because he was deemed a flight risk. Id. ¶ 7, Ex. 5 at 43.
The district court denied Mr. Abu-Shawish’s subsequent motions seeking release from
pre-trial detention. Id. ¶¶ 8-9, Ex. 6 at 45-52, Ex. 7 at 54-60.
Between December 5, 2003 and November 18, 2004, the grand jury returned
superseding indictments against Mr. Abu-Shawish related to the federal program fraud
and visa fraud charges. Def.’s Mot. at 5-6; see Joint Stip. ¶ 10. The final Fourth
Superseding Indictment was split into two sets of charges. Fourth Superseding
Indictment-A encompassed two federal program fraud counts. Joint Stip., Ex. 8 at 62-68.
Fourth Superseding Indictment-B focused on the visa fraud charges. Def.’s Mot. at 6.
Ultimately, the visa fraud charges in Fourth Superseding Indictment-B did not proceed to
trial and were dismissed on June 30, 2005. Id.
Trial on the federal program fraud counts, however, did proceed and on June 29,
2005, the jury entered a guilty verdict as to one of those counts. Id. On February 1,
2006, the district court entered judgment against Mr. Abu-Shawish on the federal
5
program fraud conviction, ordering that Mr. Abu-Shawish be committed to the custody of
the Bureau of Prisons (“BOP”) for a total term of 36 months. Joint Stip. ¶ 11, Ex. 9 at
70-75. The judgment was imposed effective January 31, 2006. Id.
B. Mr. Abu-Shawish is Charged with Residential Mortgage Fraud in Case
No. 04-cr-258 (E.D. Wis.)
Meanwhile, on November 2, 2004, while Case No. 03-cr-211 was pending, Mr.
Abu-Shawish was indicted on five counts relating to residential mortgage fraud in Case
No. 04-cr-258 (E.D. Wis.). Joint Stip. ¶ 12, Ex. 10 at 77-85. On November 15, 2004, the
district court issued an order of detention in that case, finding that Mr. Abu-Shawish
should be held pursuant to the detention order in Case No. 03-cr-211. Joint Stip. ¶ 13,
Ex. 11 at 87. On May 4, 2005, following a jury trial, the district court entered judgment
against Mr. Abu-Shawish on four counts of loan fraud. Id. ¶ 14, Ex. 12 at 90-95. The
district court ordered that Mr. Abu-Shawish be committed to the custody of BOP for a
period of eight months. Id. ¶ 14, Ex. 12 at 91. The sentence was imposed effective April
29, 2005, prior to the February 1, 2006 judgment in Case No. 03-cr-211. Joint Stip. ¶¶
14-15, Ex. 12 at 90.
C. Mr. Abu-Shawish’s Sentencing Computation
Mr. Abu-Shawish began serving his sentence on the judgment in Case No. 04-cr-
258 on April 29, 2005. Joint Stip. ¶ 16, Ex. 13 at 98. As indicated in the BOP sentencing
computation records, Mr. Abu-Shawish ultimately was sentenced to an aggregated total
term of 44 months, consisting of the eight-month sentence in Case No. 04-cr-258 and the
later-imposed 36-month sentence in Case No. 03-cr-211. Joint Stip. ¶ 17, Ex. 13 at 98;
6
see also 18 U.S.C. § 3584(c) (“Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for administrative purposes as a single,
aggregate term of imprisonment.”).
In computing his sentence, BOP credited Mr. Abu-Shawish with 574 days for the
time that he served in pre-trial detention between October 3, 2003 (the date of his arrest
on the visa and federal program fraud charges in Case No. 03-cr-211) and April 28, 2005
(the day prior to the effective date of his loan fraud sentence in Case No. 04-cr-258).
Joint Stip. ¶ 18, Ex. 13 at 98-99. This credit for prior custody is made available by the
sentencing credit statute, 18 U.S.C. § 3585(b). The BOP also credited Mr. Abu-Shawish
with 172 days of good conduct time, as provided for in 18 U.S.C. § 3624(b)(1). Joint
Stip. ¶ 19, Ex. 13 at 99; Def.’s Mot. at 13. After applying these credits, the BOP
computed an aggregated sentence for Mr. Abu-Shawish from April 29, 2005 to December
13, 2006, a duration of 594 days. See Joint Stip. ¶ 20, Ex. 13; Def.’s Mot. at 13.
D. Mr. Abu-Shawish’s ICE Deportation Proceedings
On November 30, 2006, a few weeks prior to Mr. Abu-Shawish’s release, ICE
lodged a detainer to obtain custody of Mr. Abu-Shawish for deportation proceedings.
Joint Stip. ¶ 21, Ex. 13 at 100. After serving his aggregated sentence, Mr. Abu-Shawish
was in ICE custody from December 13, 2006, through May 3, 2007, in relation to these
7
proceedings.4 Id. ¶ 22. Upon his release from ICE custody on May 3, 2007, Mr. Abu-
Shawish was not in the custody of either BOP or ICE. Id. ¶ 23.
E. Mr. Abu-Shawish’s Appeal to the Seventh Circuit and Subsequent
Criminal Proceedings
Mr. Abu-Shawish appealed his conviction for federal program fraud in Case No.
03-cr-211 to the United States Court of Appeals for the Seventh Circuit. See Joint Stip. ¶
24; United States v. Abu-Shawish, 507 F.3d 550 (7th Cir. 2007). On November 1, 2007,
the Seventh Circuit vacated Mr. Abu-Shawish’s conviction in Case No. 03-cr-211 and
remanded the case to district court on the grounds that the indictment against Mr. Abu-
Shawish had not properly alleged federal program fraud. Joint Stip. ¶ 24; Abu-Shawish,
507 F.3d at 558. The Seventh Circuit noted, however, that Mr. Abu-Shawish might have
been charged with mail or wire fraud instead. Abu-Shawish, 507 F.3d at 558.
On December 13, 2007, the district court dismissed the federal program fraud
charge on which Mr. Abu-Shawish had been convicted. Joint Stip. ¶ 24, Ex. 14 at 102.
On November 14, 2007, Mr. Abu-Shawish was indicted on three counts of mail and wire
fraud in Case No. 07-cr-289 (E.D. Wis.). See Def.’s Reply at 2 n.1, ECF No. 24.
Following a jury trial, Mr. Abu-Shawish was acquitted in the mail and wire fraud case on
October 16, 2008. Id.
4
It is not clear from the parties’ filings how Mr. Abu-Shawish’s deportation proceedings were
resolved, although Mr. Abu-Shawish states he is a “legal citizen of the United States.” Pl.’s
Resp. at 2.
8
F. Mr. Abu-Shawish’s First Case in This Court, No. 14-947C
On October 6, 2014, Mr. Abu-Shawish filed a complaint in this court seeking
$175,000 in money damages under the Act for what he alleged was an unjust conviction
for federal program fraud in Case No. 03-cr-211. Abu-Shawish v. United States, 120 Fed.
Cl. 812, 812 (2015). On May 8, 2015, this court dismissed the case without prejudice
because Mr. Abu-Shawish had not yet obtained a certificate of innocence or otherwise
met the requirements of 28 U.S.C. § 2513. Abu-Shawish, 120 Fed. Cl. at 813-14.
G. Mr. Abu-Shawish Obtains a Certificate of Innocence
Following this court’s dismissal, Mr. Abu-Shawish went back to the district court
in the Eastern District of Wisconsin and filed a pro se petition for a certificate of
innocence for his overturned federal program fraud conviction. Joint Stip. ¶ 25, Ex. 15 at
104-129; see also Abu-Shawish v. United States, 898 F.3d 726 (7th Cir. 2018). The
district court initially denied the certificate of innocence, but the denial was vacated by
the Seventh Circuit on July 31, 2018 because the district court had “applied too stringent
a standard” to Mr. Abu-Shawish’s petition. Abu-Shawish, 898 F.3d at 737.
On remand, the district court on July 27, 2020 granted the certificate of innocence,
finding that Mr. Abu-Shawish had sufficiently demonstrated that the actions related to his
federal program fraud conviction “did not constitute a crime.” Joint Stip. ¶ 25, Ex. 15 at
127. Mr. Abu-Shawish has not secured a certificate of innocence for Case No. 04-cr-258,
involving the loan fraud charges for which he was sentenced to eight months
imprisonment. Joint Stip. ¶ 26.
9
H. Mr. Abu-Shawish’s Instant Case in This Court
Having obtained a certificate of innocence, Mr. Abu-Shawish filed a second
complaint in this court on July 13, 2021, seeking compensation for his unjust federal
program fraud conviction. Compl. at 1, 5. Mr. Abu-Shawish seeks compensation for
time spent: (1) in pre-trial detention; (2) in post-conviction incarceration; (3) in ICE
custody during deportation proceedings; and (4) awaiting appeal to the Seventh Circuit
while not in custody. See Compl. at 5; Pl.’s Resp. at 1-4.
At the request of the parties, the court initially stayed the case while the parties
explored settlement. Order, ECF No. 10. However, the parties could not come to an
agreement on damages owed to Mr. Abu-Shawish, see Joint Status Report, ECF No. 15,
and the government has now moved for partial summary judgment. The government
concedes that Mr. Abu-Shawish is owed damages under the Act for 486 days, a prorated
portion of the aggregated sentence Mr. Abu-Shawish served for his federal program fraud
(Case No. 03-cr-211) and loan fraud (Case No. 04-cr-258) convictions. Def.’s Mot. at 1,
13-14. However, the government argues that Mr. Abu-Shawish is not entitled to
compensation for any of the time he spent in pre-trial detention because he would have
been detained on the other charges against him in Case No. 03-cr-211 and Case No. 04-
cr-258, regardless of the federal program fraud charge. Def.’s Mot. at 14-18. The
government further argues that Mr. Abu-Shawish is not entitled to compensation for time
spent in ICE custody, which was not imposed as part of his sentence for federal program
fraud. Id. at 18-19. Finally, the government contends that Mr. Abu-Shawish is not
entitled to compensation for time spent free and awaiting appeal. Id. at 19.
10
In his response,5 Mr. Abu-Shawish agrees with the government that he is owed
damages on 486 days for the post-conviction period of incarceration attributable to his
federal program fraud conviction. Pl.’s Resp. at 2. However, he argues that he is also
owed compensation for all of the 574 days that he spent in pre-trial detention, because the
other charges on which he was also detained—the visa charges in Case No. 03-cr-211
and the loan fraud charges in Case No. 04-cr-458—were “directly related” to his now
overturned federal program fraud charge. Pl.’s Resp. at 1-2. He contends that he “would
have never been in [p]re-[t]rial detention but for the conviction for the . . . [f]ederal
[p]rogram [f]raud charges.” Id. at 1. Mr. Abu-Shawish further asserts that he is entitled
to compensation for the time spent in ICE custody because his ICE detention was
wrongfully based on “discrimination” and followed from “his incarceration for Case No.
03-cr-211.” Id. at 2-3. Finally, Mr. Abu-Shawish argues that he is entitled to
compensation for the time he spent awaiting appeal because, as a result of his unjust
conviction, he “suffered a loss [of] his liberties that the average American enjoys” during
this time. Id. at 3.
In reply, the government reiterates that Mr. Abu-Shawish is not entitled to
compensation for any pre-trial detention time because he would have been detained on
the other charges against him, and that the periods of ICE detention and awaiting appeal
are not compensable “periods of incarceration” under the Act. Def.’s Reply at 5-14.
5
Because he is proceeding pro se, the court liberally construes Mr. Abu-Shawish’s filings. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
11
The parties have not requested oral argument, and the court has determined that
oral argument is unnecessary. See Hymas v. United States, 141 Fed. Cl. 735, 740-41
(2019) (holding that the court has discretion over whether to hold oral argument, citing
cases).
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of
the Rules of the United States Court of Federal Claims (“RCFC”); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986); Casitas Mun. Water Dist. v. United
States, 543 F.3d 1276, 1283 (Fed. Cir. 2008). A material fact is one that “might affect
the outcome of the suit,” and an issue is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
considering the existence of a genuine issue of material fact, a court must draw all
inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If “the record taken as a
whole [cannot] lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial,” and summary judgment is appropriate. Id. (internal quotation
omitted).
The moving party bears the initial burden of demonstrating the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The burden then shifts to the nonmoving party to show that there are genuine issues of
material fact for trial. Id. at 324. Both parties may carry their burden by “citing to
12
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials” or by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” RCFC 56(c)(1). When considering a motion for summary
judgment, the court may, “[a]fter giving notice and a reasonable time to respond,” sua
sponte “grant summary judgment for a nonmovant.” RCFC 56(f)(1).
In this case, the parties have submitted a joint stipulation of undisputed facts. The
only issue before the court is the damages Mr. Abu-Shawish is entitled to on these
undisputed facts, which is a question of law. Questions of law are particularly
appropriate for summary judgment. See Huskey v. Trujillo, 302 F.3d 1307, 1310 (Fed.
Cir. 2002).
IV. DISCUSSION
The government does not dispute that this court possesses jurisdiction6 over Mr.
Abu-Shawish’s claim or that Mr. Abu-Shawish has obtained the requisite certificate of
6
Although the government does not question this court’s jurisdiction, given the time that has
elapsed since Mr. Abu-Shawish’s conviction, the court must ensure that this action falls within
the applicable six-year limitations period. 28 U.S.C. § 2501; Bolduc v. United States, 248 F.
App’x 162, 163 (Fed. Cir. 2007). A claim against the government in this court accrues when “all
of the events [have] occurred which fix the liability of the [g]overnment and entitle [a plaintiff]
to institute an action.” Id. at 165 (internal quotation and alterations omitted). Unjust conviction
claims like this one accrue when a plaintiff can allege that a court has made the requisite findings
under § 2513(a). Bolduc, 248 F. App’x at 164-65. This could, but does not always, occur when
a plaintiff obtains a certificate of innocence. Id. (finding that a plaintiff’s claim accrued when his
conviction was vacated, not when the certificate of innocence was issued, because the order
vacating the conviction satisfied § 2513(a)). Here, the events fixing Mr. Abu-Shawish’s claims
13
innocence under the Act entitling him to damages. Def.’s Mot. at 11 (“Mr. Abu-Shawish
has secured a certificate of innocence as to his federal program fraud conviction, and in
that respect he has met the Act’s burden of proof.”). The only question before the court
is the damages amount that Mr. Abu-Shawish is owed. The answer depends on which of
the four periods of time alleged by Mr. Abu-Shawish are compensable under the Act,
which awards damages only for “period[s] of incarceration.” 28 U.S.C. § 2513(e).
As explained above, Mr. Abu-Shawish seeks compensation for the following: (1)
574 days spent in pre-trial detention; (2) 486 days spent incarcerated in federal prison; (3)
six months7 spent in ICE custody following his release; and (4) six months8 spent
awaiting a decision from the Seventh Circuit, during which he was not in custody. See
Compl. at 5; Pl.’s Resp. at 1-4. The court addresses these periods in reverse
chronological order, starting with the period of time during which Mr. Abu-Shawish was
free and awaiting appeal, next to his detention by ICE, then to the post-conviction time
serving his aggregated sentence, and finally to the pre-trial detention period.
under the Act were not set until he obtained a certificate of innocence from the Eastern District
of Wisconsin finding that he met the requirements of § 2513(a) on July 27, 2020. See Abu-
Shawish, 120 Fed. Cl. at 813-14 (this court’s prior decision dismissing Mr. Abu-Shawish’s claim
because he had not yet obtained a certificate of innocence satisfying the requirements of §
2513(a)); Joint Stip. ¶ 25, Ex. 15 at 109 (the certificate of innocence deciding whether Mr. Abu-
Shawish had satisfied the requirements of § 2513(a)). Mr. Abu-Shawish’s July 13, 2021
complaint, filed within six years of July 27, 2020, is therefore timely.
7
Although he seeks compensation for six months, see Compl. at 5, this period of time, from
December 13, 2006 to May 3, 2007, is 141 days, or four months and 20 days.
8
Although he seeks compensation for six months, see Compl. at 5, this period of time, from May
3, 2007 to November 1, 2007, is 182 days, or five months and 29 days.
14
A. Mr. Abu-Shawish Is Not Entitled to Compensation for Time
Awaiting Appeal During Which He Was Not in Custody
Mr. Abu-Shawish seeks compensation for the approximately six-month period of
time he spent awaiting a decision on the appeal of his federal program fraud conviction to
the Seventh Circuit, from May 3, 2007 through November 1, 2007. Compl. at 5. Mr.
Abu-Shawish argues that he “suffered a loss [of] his liberties” during this time because he
“could not find work, was labeled a convicted felon and lost some friends” as a result of
his unjust conviction. Pl.’s Resp. at 3. The Act, however, only provides compensation
for “period[s] of incarceration,” 28 U.S.C. § 2513(e); see Crooker, 828 F.3d at 1361-63,
and it is undisputed that Mr. Abu-Shawish was neither in BOP nor ICE custody during
this time, Joint Stip. ¶ 23. Because Mr. Abu-Shawish is not entitled under the Act’s
terms to damages while he was free and awaiting appeal, the court grants the
government’s motion for summary judgment as to this time period.
B. Mr. Abu-Shawish is Not Entitled to Compensation for Time
in ICE Custody
Mr. Abu-Shawish next seeks compensation for the period of time that he spent in
ICE detention following his release from prison, from December 13, 2006 until May 3,
2007. See Compl. at 5. Mr. Abu-Shawish argues that because his ICE detention
followed from his unjust conviction, the time spent in ICE custody amounts to “more
‘prison’ time for crimes he did not commit against the United States.” Pl.’s Resp. at 3.
The government responds that under the Act, Mr. Abu-Shawish is only entitled to
compensation for the “period of incarceration” that was “imposed as part of his sentence”
15
for his unjust conviction, not for his later ICE detention relating to deportation
proceedings. Def.’s Mot. at 18-19; Def’s Reply at 9-10.
The court agrees with the government. As explained above, the Act awards
damages to a wrongly convicted individual based on the length of his “period of
incarceration” for an unjust conviction. 28 U.S.C. § 2513(e). As it relates to the contours
of the “period of incarceration” for which a plaintiff may receive damages, the Act “is not
self-defining.” Crooker, 828 F.3d at 1361. However, the Federal Circuit in Crooker v.
United States has explained that “[a] sentence [for an unjust conviction] provides the link
between the ‘period of incarceration’ and the unjust conviction.” Id. at 1362 (citing 18
U.S.C. § 3581(a), which provides that “[a] defendant who has been found guilty of an
offense may be sentenced to a term of imprisonment”). Therefore, the court looks to Mr.
Abu-Shawish’s sentence for his unjust federal program fraud conviction to determine the
“period of incarceration” for which he is entitled to damages.
In this case, Mr. Abu-Shawish was sentenced to 36 months imprisonment for the
unjust federal program fraud conviction in Case No. 03-cr-211. It is undisputed that this
sentence did not include his subsequent ICE detention for deportation proceedings. The
judgment in Case No. 03-cr-211 was entered on February 1, 2006, and the ICE detainer
was lodged against Mr. Abu-Shawish ten months later, on November 30, 2006. Joint
Stip., Ex. 9 at 70, Ex. 10 at 100. In addition, the BOP sentencing computation for Mr.
Abu-Shawish does not include any period of ICE detention. Joint Stip., Ex. 13.
Therefore, based on the undisputed facts of this case, there is no “link” between Mr. Abu-
Shawish’s unjust conviction and his later ICE detention. Crooker, 828 F.3d at 1362. For
16
this reason, Mr. Abu-Shawish is not entitled to compensation for time spent in ICE
custody, and the court grants the government’s motion for summary judgment as to this
time period.
C. Mr. Abu-Shawish is Entitled to Compensation for 486 Days of Post-
Conviction Imprisonment
Mr. Abu-Shawish next seeks compensation for the time during which he was
wrongfully imprisoned following his unjust federal program fraud conviction. See
Compl. at 5. The government agrees that Mr. Abu-Shawish is entitled to compensation
for the period of incarceration attributable to this conviction. Def.’s Mot. at 11, 13-14.
The parties also agree that, because Mr. Abu-Shawish served an aggregated sentence for
his unjust conviction in Case No. 03-cr-211 together with his valid loan fraud conviction
in Case No. 04-cr-258, the amount of compensation owed to Mr. Abu-Shawish must be
prorated between these two convictions based on the sentences imposed. Def.’s Mot. at
13-14; Pl.’s Resp. at 2.
The court agrees with the parties’ reasoning and calculation. As explained above,
Mr. Abu-Shawish has secured a certificate of innocence only as to his federal program
fraud conviction. Joint Stip. ¶¶ 25-26, Ex. 15. He received a 36-month sentence for that
conviction, which was imposed on February 1, 2006. Id. ¶ 11, Ex. 9 at 70-75. On the
date of that judgment, Mr. Abu-Shawish was already incarcerated, having been convicted
and sentenced to eight months imprisonment for loan fraud on April 29, 2005. Id. ¶ 14.
The BOP aggregated these sentences into a 44-month sentence, as permitted under the
federal sentencing laws. Id. ¶ 17, Ex. 13 at 98; 18 U.S.C. § 3584(c).
17
Mr. Abu-Shawish satisfied his aggregated sentence and was released from BOP
custody on December 13, 2006. Joint Stip. ¶ 20, Ex. 13 at 99. He was released in
substantially less than 44 months because he received 172 days credit for good conduct
time and 574 days credit for prior custody time, based on his pre-trial detention. Joint
Stip. ¶¶ 17-20, Ex. 13 at 99. His total period of incarceration for the two sentences lasted
594 days. Def.’s Mot. at 14.
However, Mr. Abu-Shawish is only entitled to compensation for a portion of these
594 days. This is because his aggregated sentence was based on his unjust conviction for
federal program fraud (for which he has obtained a certificate of innocence) and his
conviction for loan fraud (for which he has not). Joint Stip. ¶¶ 17, 25-26. Therefore, to
give effect to the Act’s purpose of compensating plaintiffs for the loss of liberty as a
result of an unjust conviction, Crooker, 828 F.3d at 1363, it is necessary to segregate Mr.
Abu-Shawish’s just imprisonment for loan fraud from his unjust imprisonment for federal
program fraud.
As the government suggests, this can be accomplished by prorating the 594 days
of imprisonment based on the sentences imposed for each conviction. Def.’s Mot. at 14;
see Crooker, 828 F.3d at 1362 (holding that for purposes of calculating damages under
the Act, the sentence provides the “link” between the “period of incarceration” and the
unjust conviction). Of Mr. Abu-Shawish’s 44-month aggregated sentence, 36 months
stemmed from the unjust federal program fraud conviction, or approximately 82 percent
of the total. See Def.’s Mot. at 14. Applying that percentage to the 594 days actually
served, 486 days are eligible for compensation.
18
The court thus concludes that an award to Mr. Abu-Shawish for 486 days is
warranted and effectuates the purpose of the Act. The court therefore sua sponte grants
summary judgment in favor of Mr. Abu-Shawish for these 486 days.9 Mr. Abu-Shawish
is entitled to $66,575.34 for the 486 days spent wrongfully incarcerated for the unjust
federal program fraud conviction.10
D. Mr. Abu-Shawish is Entitled to Compensation for a Portion of the
Time Spent in Pre-Trial Detention
Finally, Mr. Abu-Shawish claims that he is entitled to compensation for 574 days
of pre-trial detention—from October 3, 2003, when he was arrested and detained on
federal program fraud and visa fraud charges, to April 29, 2005, when he began serving
his sentence for his loan fraud conviction. See Pl.’s Resp. at 1. The government argues
that Mr. Abu-Shawish should not be awarded any damages for any pre-trial detention
9
Mr. Abu-Shawish has not cross-moved for summary judgment. However, the court may under
RCFC 56(f)(1) sua sponte grant summary judgment for a nonmovant “[a]fter giving notice and a
reasonable time to respond.” Although the court has not given the government formal notice that
it may grant summary judgment in favor of Mr. Abu-Shawish, the court concludes that the
government has already received both adequate notice and a reasonable opportunity to respond
to that possibility here. None of the material facts in this case are disputed, and both parties have
been given the opportunity to brief the question of law at issue—whether Mr. Abu-Shawish is
entitled to damages under the Act. In addition, in sua sponte granting Mr. Abu-Shawish
summary judgment in this opinion, the court adopts arguments already briefed by the
government. See supra Part IV.C; infra Part IV.D. Under such circumstances, the court finds
that a sua sponte grant of summary judgment to Mr. Abu-Shawish is appropriate and does not
prejudice the government. See Celotex Corp., 477 U.S. at 326 (“[Under Fed. R. Civ. P. 56,]
district courts are widely acknowledged to possess the power to enter summary judgments sua
sponte, so long as the losing party was on notice that [it] had to come forward with all of [its]
evidence.”); see also U.S. Sur. Co. v. United States, 83 Fed. Cl. 306, 309-10 (2008) (awarding
summary judgment to the nonmovant on a question of law based on undisputed facts).
10
The Act provides that a plaintiff may be awarded $50,000 for each 12-month period of
incarceration. 28 U.S.C. § 2513(e). Dividing $50,000 by 365 days to calculate a daily rate of
damages of approximately $136.99, and then multiplying this number by 486 days, results in
$66,575.34 of damages.
19
period “due to the multiple, unrelated contemporaneous charges and convictions against
him as to which he has not secured a certificate of innocence.” Def.’s Mot. at 14-15.
According to the government, Mr. Abu-Shawish “lost no liberty due to his [pre-trial]
detention on the overturned federal program fraud count, because the district court record
demonstrates that he would still have been detained on the other, unrelated charges
including the four loan fraud charges that resulted in convictions.” Id. at 15.
Alternatively, the government argues that, should the court find that Mr. Abu-Shawish’s
pre-trial detention time is compensable, that time be prorated in the same manner as Mr.
Abu-Shawish’s post-conviction incarceration. Id. at 17-18; Reply at 8-9.
To resolve this issue, the court again turns to the Federal Circuit’s decision in
Crooker. As noted in Crooker, the Act does not specifically address whether the “period
of incarceration” for which a plaintiff may be awarded damages includes pre-trial
detention. 828 F.3d at 1361. To answer this question, the Federal Circuit in Crooker
concluded that a plaintiff’s sentence provides the “link” between the unjust conviction
and the “period of incarceration,” and, therefore, “it is wholly appropriate to consult
federal sentencing law when determining the proper damages award under the Unjust
Conviction and Imprisonment Act.” Id. at 1362. In particular, the Federal Circuit
concluded that the federal sentencing credit statute, 18 U.S.C. § 3585(b), applies to the
damages owed to a successful plaintiff under the Act. Crooker, 828 F.3d at 1362.
Section 3585(b) provides as follows:
(b) Credit for prior custody.—A defendant shall be given credit toward the service
of a term of imprisonment for any time he has spent in official detention prior to
the date the sentence commences—
20
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b). As relevant to this case, § 3585(b)(1) provides that an individual
may receive “credit” on his prison sentence for the period of pre-trial detention resulting
from the offense for which that sentence was imposed. Under Crooker, the application of
this prior custody provision to a sentence for an unjust conviction provides the “link”
between the sentence and pre-trial detention, such that pre-trial detention may be credited
to an unjust conviction and compensated under the Act. Def.’s Mot. at 14 (citing
Crooker, 828 F.3d at 1362).11
Applying Crooker here, the court concludes that Mr. Abu-Shawish should be
compensated for the time that he spent in pre-trial detention, prorated to allocate the pre-
trial detention time between his unjust federal program fraud conviction in Case No. 03-
cr-211 and his valid loan fraud conviction in Case No. 04-cr-258. As noted above, Mr.
Abu-Shawish was detained for 574 days. Joint Stip. ¶ 18, Ex. 13 at 99. Consistent with
18 U.S.C. § 3585(b), the BOP credited Mr. Abu-Shawish with the entire 574 days when it
11
In Crooker, the plaintiff’s conviction on a firearms charge was overturned, and the time he had
served for the overturned charge was credited to a separate sentence that the plaintiff was
serving. 828 F.3d at 1360. The Federal Circuit held that § 3585(b)(2) established that the
plaintiff was entitled to no damages in that case. 828 F.3d at 1362. Because the plaintiff’s time
served for the firearm charge had transferred to the separate charge, “there remain[ed] no ‘period
of incarceration’ associated with the firearm charge,” and, therefore, the plaintiff was not entitled
to damages under the Act. Id.
21
computed his aggregated sentence. Joint Stip. ¶ 18, Ex. 13 at 99. Under Crooker, the
BOP’s application of § 3585(b) to Mr. Abu-Shawish’s aggregated sentence provides the
link between his pre-trial detention and his unjust federal program fraud conviction.
Therefore, Mr. Abu-Shawish is entitled to compensation for the portion of the pre-trial
detention period that can be allocated to his unjust conviction. See Crooker, 828 F.3d at
1362.
The fact that Mr. Abu-Shawish was also detained on other criminal charges does
not alter this conclusion. The government argues that Mr. Abu-Shawish has suffered no
loss of liberty due to his pre-trial detention, speculating that he would have been detained
on visa and loan fraud charges regardless of the unjust federal program fraud conviction.
Def.’s Mot. at 14-18. Yet, given the action of BOP in crediting Mr. Abu-Shawish with
the entire pre-trial detention period, the court disagrees. Regardless of these other
charges, the BOP’s application of § 3585(b) to Mr. Abu-Shawish’s aggregated sentence
provides the requisite “link” under Crooker between Mr. Abu-Shawish’s pre-trial
detention and his unjust “period of incarceration” for federal program fraud. 828 F.3d at
1362. Had BOP not credited Mr. Abu-Shawish’s aggregated sentence with 574 days of
pre-trial detention, his post-conviction period of incarceration would have included 574
additional days, a period of time that the government concedes is partly compensable
under the Act. Thus, the court finds that Mr. Abu-Shawish is entitled to compensation
for the period of pre-trial detention that may be allocated to his wrongful federal program
fraud conviction.
22
Because Mr. Abu-Shawish’s sentence was aggregated, the period of pre-trial
detention must be allocated between his unjust federal program fraud conviction and his
just conviction for load fraud in Case No. 04-cr-258. See Def.’s Mot. at 14-15; Def.’s
Reply at 8-9. The government alternatively argues that if the court concludes that Mr.
Abu-Shawish should be compensated for the pre-trial detention period—as it now has—
the court should prorate the time using the same formula used for the period of post-
sentencing imprisonment. Id.
The court agrees. Mr. Abu-Shawish’s pre-trial detention was linked to his
aggregated sentence through BOP’s application of 18 U.S.C. § 3585(b). As explained
above, Mr. Abu-Shawish was sentenced to 44 months in prison—36 months for federal
program fraud and eight months for loan fraud. Approximately 82 percent of his
aggregated sentence stems from the unjust federal program fraud conviction. Applying
this percentage to the 574 days of pre-trial detention yields 470 days of compensable pre-
trial detention for Mr. Abu-Shawish’s unjust conviction.
For these reasons, the court denies the government’s motion for partial summary
judgment as to this pre-trial detention period, and sua sponte grants summary judgment
for Mr. Abu-Shawish for these 470 days. Mr. Abu-Shawish is entitled to $64,383.56 for
the period of pre-trial detention related to his unjust conviction.12
12
Dividing $50,000 by 365 days, see 28 U.S.C. § 2513(e), to calculate a daily rate of damages of
approximately $136.99, and then multiplying this number by 470 days, results in $64,383.56 of
damages.
23
V. CONCLUSION
Based on the foregoing, the government’s motion for partial summary judgment,
ECF No. 18, is GRANTED IN PART and DENIED IN PART. The court sua sponte
GRANTS IN PART summary judgment in favor of Mr. Abu-Shawish. Mr. Abu-
Shawish is awarded $130,958.90. The Clerk is instructed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
24