United States v. Graham

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-6013

ROBERT E. GRAHAM,

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, Senior District Judge.

(5:06-cr-00025-1)

Argued: January 27, 2010

Decided: June 16, 2010

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the major-

ity opinion, in which Judge Michael joined. Judge Gregory

wrote a dissenting opinion.

COUNSEL

ARGUED: Harry Preston Henshaw, III, Charleston, West

Virginia, for Appellant. Hunter Paul Smith, Jr., OFFICE OF

THE UNITED STATES ATTORNEY, Charleston, West Vir-

2 UNITED STATES v. GRAHAM

ginia, for Appellee. ON BRIEF: Charles T. Miller, United

States Attorney, Charleston, West Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After the Government charged Robert E. Graham with 39

criminal offenses, he opted for a bench trial. The district court

found him not guilty of all offenses except that charged in

Count 14—embezzlement from his employer, an organization

receiving in excess of $10,000 annually in federal funds. See

18 U.S.C. § 666 (2006). Graham appealed his sole conviction,

and we reversed, holding that the Government had offered

insufficient evidence to prove, "beyond a reasonable doubt,

that Graham knowingly stole any money" as alleged in Count

14. See United States v. Graham, 269 F. App’x 281, 286 (4th

Cir. 2008) (per curiam). Graham then moved for a certificate

of innocence, a necessary prerequisite to recovery of damages

from the Government for unjust conviction and imprisonment.

See 28 U.S.C. §§ 1495, 2513 (2006). Concluding that Graham

had not met the statutory prerequisites for a certificate of

innocence, the district court refused to grant him one. Graham

appeals. Because the district court did not abuse its substantial

discretion in denying the certificate, we affirm.

I.

A.

Graham served as executive director of two related non-

profit corporations—the Council on Aging, Inc. ("COA") and

All Care Home and Community Services, Inc. ("All Care")—

for more than twenty years. The corporations, which shared

a Board of Directors, provided services to the elderly and

infirm and received well over $10,000 annually in federal

funds.

UNITED STATES v. GRAHAM 3

For many years, Graham had no written employment con-

tract with either corporation. However, in December 2001, he

prepared and submitted employment contracts, which the

Board’s president signed. The contracts raised Graham’s

annual salary from $125,000 to $185,000.

In March 2002, COA agreed to assume responsibility for

All Care’s administrative expenses, including Graham’s sal-

ary and benefits, and entered into an amended employment

contract with Graham so providing. This amended contract

contains the following sick-leave provision:

Beginning on the date of employment sometime

around May 1975 until the termination of employ-

ment, [Graham] shall be entitled to accrue two days

(16[ ]hours) per month paid sick leave time. Sick

leave may be accumulated from year to year. Sick

leave benefits may be converted into cash compensa-

tion if used for illnesses or upon the termination of

this contract.

Thus, the contract authorized Graham to convert his sick-

leave benefits into cash compensation under only two

circumstances—"illness[ ] or . . . termination of th[e] con-

tract."

Nevertheless, in January 2003, without meeting these con-

ditions, Graham sought Board permission to convert some of

his sick leave to cash. Graham offered the Board the follow-

ing brief justification for the request: "I am requesting permis-

sion to buy out some of my sick leave. It shows in the books

as an accrual. I can already bu[y] out my vacation." The

Board granted his request, and on that same day, Graham con-

verted 1200 sick-leave hours to $106,728. Two more times in

the spring of 2003, again without meeting the contractual con-

ditions, Graham requested and received Board permission to

convert some of his sick leave to cash. In all, during 2003,

Graham converted sick leave to over $160,000 in cash.

4 UNITED STATES v. GRAHAM

Graham never again asked the Board to approve his con-

version of sick leave to cash. But in both January and Febru-

ary 2004, again without meeting either of the contractual

conditions, he converted sick leave to cash. In total, during

2004, Graham converted sick leave to over $30,000 in cash.

In response to ongoing state investigations of COA, the

Board called an emergency meeting in March 2004, at which

it revised the terms of Graham’s employment contract and

ordered Graham to return the money he received for sick

leave in 2003. That same month, Graham heeded his attor-

ney’s advice and repaid all the money he had received for sick

leave in both 2003 and 2004.

In July 2006, a federal grand jury in the Southern District

of West Virginia returned a second superseding 39-count

indictment against Graham. Both counts 13 and 14 charged

him with embezzling money from COA by unauthorized con-

version of sick leave to cash. See 18 U.S.C. § 666.1 Count 13

charged him with embezzling $160,092.81 in calendar year

2003; Count 14 charged him with embezzling $31,129 in

2004.

Graham pled not guilty to all counts and waived his right

to a jury trial. During his five-day bench trial, the Government

offered substantial evidence that at all relevant times, the

COA Board members were elderly (their average age

exceeded 80), hard of hearing, financially unsophisticated,

and strongly influenced by Graham. The Government argued

that this evidence required the district court to find that Gra-

1

Section 666 prohibits an agent of an organization receiving in any one-

year period federal benefits in excess of $10,000 from "embezzl[ing],

steal[ing], obtain[ing] by fraud or otherwise without authority knowingly

convert[ing] to the use of any person other than the rightful owner or

intentionally misappl[ying]" property owned or controlled by that organi-

zation and carrying a value of $5000 or more. 18 U.S.C. § 666. Graham’s

intent constituted the only disputed element at trial.

UNITED STATES v. GRAHAM 5

ham could, and did, take advantage of the Board at every turn

and so find him guilty of all 39 counts in the indictment.

The district court refused to so find. Rather, after the trial,

at which Graham did not testify, the court acquitted Graham

of all crimes but that charged in Count 14—embezzlement

from his employer of $31,129 through sick-leave conversions

to cash in 2004. Thus, the court found Graham not guilty of

mail fraud, wire fraud, tax violations, embezzlement related to

the purchase of a plasma television and the maintenance of a

SEP IRA plan, or embezzlement with respect to the 2003

sick-leave conversion charged in Count 13. United States v.

Graham, No. 5:06-00025, 2006 WL 2527613 (S.D.W. Va.

Aug. 30, 2006).

The court explained its differing finding as to Counts 13

and 14 as follows:

Evidence establishes that, in 2003, defendant went to

the boards of COA and All-Care and requested board

approval prior to cashing in sick leave. The board’s

sanction of defendant’s behavior, regardless of the

ability of its members to fully comprehend the intri-

cacies of the organizations’ finances, leads this court

to conclude that defendant did not violate 18 U.S.C.

§ 666(A)(1)(a) as to Count Thirteen. Even though

the court doubts that the board members compre-

hended in detail all of the matters before them, they

did consent. Their assent, regardless of their level of

competence, creates a reasonable doubt as to Count

Thirteen.

On the other hand, the evidence at trial did estab-

lish that defendant was guilty of Count Fourteen. It

shows clearly that he did not return to the board and

seek the same approval for his last buy out of sick

leave even though he knew he was supposed to do

so.

6 UNITED STATES v. GRAHAM

....

. . . [T]he conclusion is inescapable that Graham

cashed in the sick leave [in January and February

2004] without the approval of his board, knowing he

needed board approval, thereby effectively stealing

the money or converting it to his own use.

From the evidence taken at trial it is clear that

defendant, an employee, took this money from COA

without having any board approval whatsoever.

These transactions each constituted major changes of

the sort that required board approval. The fact that

Graham sought board approval for the [2003] cash-

outs of sick leave is compelling evidence that he

knew such approval was required. Graham cavalierly

disregarded the board and treated large amounts of

COA’s money as if it were his own, diverting it to

his personal use and to the detriment of those whom

COA and All-Care were created and funded to serve.

Id. at *3-4.

As to the other counts—related to the plasma television,

SEP IRA plan, and federal taxes –- the court concluded that

although Graham’s conduct was "doubtlessly improper and

unethical," id. at *1, and "inconsistent with Graham’s duties

as Executive Director," id. at *2, the Government had failed

to prove beyond a reasonable doubt that Graham harbored the

requisite intent to commit the crimes charged. Id. at *1-2, *4;

see 18 U.S.C. § 666; 26 U.S.C. § 7206 (2006). The court sim-

ilarly acquitted Graham of various fraud charges, see 18

U.S.C. §§ 1341, 1343, 1346 (2006), finding that the Govern-

ment had not proven that Graham devised a scheme to

defraud his employer. Graham, 2006 WL 2527613, at *2-5.

The district court concluded that

UNITED STATES v. GRAHAM 7

[t]he events leading to this indictment are improper

and outrageous and cannot be condoned by the court.

Graham failed miserably to fulfill his duties as a

public servant, engaging in conduct that squandered

public resources and adopting a life-style that

reflected discredit upon COA and All-Care, their

directors and employees. Bad conduct in and of

itself, however, does not equal criminal conduct. To

convict a defendant of a crime, the government must

establish beyond a reasonable doubt by competent

evidence each and every element of each and every

crime charged. Except for Count Fourteen, the gov-

ernment has failed to do so.

Id. at *5. The court imposed on Graham a within-Guidelines

sentence of two years in prison and a $10,000 fine, and

ordered him to forfeit any portion of the funds charged as

stolen in Count 14 that he had not already returned.

Graham appealed, and we reversed his sole conviction on

sufficiency grounds. Graham, 269 F. App’x at 286-87. We

concluded that, because in 2003, "[t]he Board repeatedly

authorized Graham to buy out his accrued sick leave and did

not place any restrictions on . . . the timing of these cash

outs," his failure to obtain Board approval in 2004 for the

cash payments of sick leave was "clearly insufficient for pur-

poses of establishing Graham’s intent to steal funds." Id. at

286. Although Graham’s written contract permitted him to

receive cash payment for sick leave only upon illness or ter-

mination, we held that "the Board’s decisions in January,

March, and May of 2003 [to permit cash payment of sick

leave in circumstances not permitted in the employment con-

tract] resulted in a de facto amendment that overrode these

restrictions." Id.

We pointed to several other facts suggesting Graham did

not intentionally steal from COA, including the Board’s deci-

sion to maintain Graham as executive director in March 2004

8 UNITED STATES v. GRAHAM

after the federal and state investigations of COA had begun,

Graham’s decision to continue to obtain cash for sick leave

after the federal investigation began in early 2003, and his

filling out the proper paperwork and obtaining approval from

the Board treasurer for all of the sick-leave conversions to

cash. Id. at 286-87. Although we recognized that certain other

facts—for example, that Graham’s conversions of sick leave

ran afoul of COA’s written personnel policies—"may demon-

strate that Graham is not eligible for the priesthood," we

found them "irrelevant so far as the district court’s determina-

tion of guilt is concerned." Id. at 285 n.5.

We issued our mandate on March 20, 2008, and on that

same day the district court entered an order adjudging Gra-

ham not guilty. At that time, Graham had spent thirteen

months in prison.

B.

On July 21, 2008, Graham filed an action in the United

States Court of Federal Claims seeking damages from the

Government for unjust conviction and imprisonment. See 28

U.S.C. §§ 1495; 2513. Two months later, Graham moved in

this court for a certificate of innocence, a necessary prerequi-

site to the Federal Claims action. Id. § 2513. We dismissed

the motion without prejudice, noting that the "reversal of

appellant’s conviction was not based on technical or proce-

dural grounds, but law and fact; therefore, a certificate of

innocence is appropriate in accordance with . . . § 2513."

However, we concluded that "the district court is the most

appropriate court to issue the certificate."

Graham then moved for a certificate of innocence in the

district court, which the court denied. After examining the rel-

evant statutory language, the court concluded that § 2513 does

not mandate the payment of public funds to everyone acquit-

ted after being imprisoned. Rather, the statute "orders com-

pensation to the truly innocent who have been prosecuted

UNITED STATES v. GRAHAM 9

through no fault of their own." United States v. Graham, 595

F. Supp. 2d 681, 684 (S.D.W. Va. 2008). The court noted that

the few precedents interpreting § 2513 (and its predecessors)

agreed that the statute "provides a remedy to be applied only

in exceptional cases." Id.

The district court determined that it was "unable to reach

. . . the conclusions mandated by 28 U.S.C. § 2513" as a nec-

essary condition to the award of a certificate of innocence. Id.

at 686. Specifically, the Court found itself "not persuaded that

Graham is in fact innocent," nor able to "conclude that he did

not by misconduct or neglect bring about his own prosecu-

tion." Id.

The court first catalogued the trial evidence, which it

believed demonstrated that Graham was not actually innocent:

Graham (1) "selected and controlled the Board[ ] . . . which

w[as] composed entirely of the elderly," (2) took home an

annual salary of $185,000, which was "excessive by compari-

son to the pay of others in similar positions," (3) "used

employees on company time to perform personal services for

himself and his family," (4) "bought . . . a $6,000 television[ ]

through COA to get a better price and avoid sales taxes," (5)

"manipulated a SEP IRA to benefit his family," and (6) "as-

sumed a lavish lifestyle including regular visits to a ‘gentle-

men’s club.’" Id. at 685. This evidence led the court to

conclude that "Graham operated [COA and All Care] for

years as his own personal domain and for the financial benefit

of himself and his family." Id.

The court then explained why it found that Graham’s "mis-

conduct or neglect cause[d] or br[ought] about his own prose-

cution." 28 U.S.C. § 2513(a)(2). First, the court found that the

enumerated evidence of Graham’s wrongdoing "certainly

shows that, in a general sense, [Graham] brought about his

own prosecution." Graham, 595 F. Supp. 2d at 686. Specifi-

cally, the court found that Graham was "at the very least neg-

ligent" in not seeking Board approval before converting his

10 UNITED STATES v. GRAHAM

sick leave to cash in 2004, as he had in 2003. Id. The court

explained that Graham "either simply neglected to do so or he

purposely failed to do so for some specific reason such as the

belief his request would not be approved. In either event his

own conduct brought about his prosecution . . . ." Id.

The district court expressly recognized that on appeal, we

had "carefully reviewed the evidence against Graham on the

count of conviction and concluded that it was insufficient to

establish his guilt beyond a reasonable doubt." Id. The court

did not challenge this holding. Rather, the court explained that

while the evidence at trial had been found "insufficient to

prove [Graham’s] guilt beyond a reasonable doubt," this evi-

dence left the court unconvinced "that Graham is in fact inno-

cent, [or] that [Graham] did not by misconduct or neglect

bring about his own prosecution." Id.

Graham timely noted this appeal.

II.

This case presents our first opportunity to address § 2513.

Nor has the Supreme Court ever construed, or even cited, the

statute. But the clear statutory language, its legislative history,

and the cases that have previously considered the statute pro-

vide us substantial guidance.

Section 2513, the "[u]njust conviction and imprisonment"

act, provides:

(a) Any person suing under section 1495 of this title

[which waives sovereign immunity for suits seeking

money damages from the Government, to be filed in

the Court of Federal Claims] must allege and prove

that:

(1) His conviction has been reversed or set

aside on the ground that he is not guilty of

UNITED STATES v. GRAHAM 11

the offense of which he was convicted, . . .

as appears from the record . . . of the court

setting aside or reversing such 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.

(b) Proof of requisite facts shall be by a certificate of

the court or pardon wherein such facts are alleged to

appear, and other evidence thereof shall not be

received.

28 U.S.C. § 2513.

Thus, the plain language of § 2513 requires that one seek-

ing a certificate of innocence (who has not been pardoned)

prove three predicates. He must prove that (1) "the record . . .

of the court setting aside or reversing" his conviction demon-

strates that it did so "on the ground that he is not guilty of the

offense of which he was convicted," § 2513(a)(1); (2) he "did

not commit any of the acts charged" or those acts "constituted

no crime against the United States, or any State, Territory or

the District of Columbia," § 2513(a)(2); and (3) "he did not by

misconduct or neglect cause or bring about his own prosecu-

tion," id.

After setting forth these three requirements, § 2513 specifi-

cally characterizes them as "requisite facts." § 2513 (b). Then,

the statute expressly sets forth the only way (again absent par-

don) that a person can demonstrate these "requisite facts" in

the Court of Federal Claims—by a certificate from the court

12 UNITED STATES v. GRAHAM

in which "such facts are alleged to appear." Id. This intricate

statutory scheme renders several conclusions inescapable.

First, Congress clearly did not provide in the unjust convic-

tion and imprisonment act an avenue for monetary compensa-

tion to all whose criminal convictions are reversed after

incarceration. See Betts v. United States, 10 F.3d 1278, 1284

(7th Cir. 1993); United States v. Keegan, 71 F. Supp. 623, 635

(S.D.N.Y. 1947). Rather, "the phrasing of the Act and its leg-

islative history proclaim the care with which its framers

guarded against opening wide the door through which the

treasury may be assailed by persons erroneously convicted."

United States v. Brunner, 200 F.2d 276, 280 (6th Cir. 1952);

see also H.R. Rep. No. 75-2299, at 2 (1938), quoted in Kee-

gan, 71 F. Supp. at 633 (noting that Congress enacted this

statute to provide only "certain innocent persons" the ability

"to present a claim for financial indemnity" upon "showing

their innocence"). As the Eighth Circuit has recently recog-

nized, § 2513 "compensates only the truly innocent." United

States v. Racing Servs., Inc., 580 F.3d 710, 712 (8th Cir.

2009) (citing Betts, 10 F.3d at 1284).2

2

The legislative history of § 2513 clearly demonstrates a congressional

desire to limit the class of persons entitled to relief under the statute. In

commenting on the proposed legislation, Attorney General Homer Cum-

mings noted that "[i]deal justice would seem to require that in the rare and

unusual instances in which a person who has served the whole or part of

a term of imprisonment, is later found to be entirely innocent," he should

"receive some redress." S. Rep. No. 75-202, at 3 (1937) (emphasis added),

quoted in Keegan, 71 F. Supp. at 632. The Attorney General went on to

distinguish the "entirely innocent," who would merit a certificate of inno-

cence, from those who would not—the "more frequent[ ]" cases in which

reversal was based "on the ground of insufficiency of proof or on the ques-

tion as to whether the facts charged and proven constituted an offense

under some statute." Id. He concluded that any proposed legislation should

"necessar[ily] . . . separate from the group of persons whose convictions

have been reversed, those few who are in fact innocent of any offense

whatever." Id.

UNITED STATES v. GRAHAM 13

Second, and just as clear as its intent to permit only the

"truly innocent" to receive a § 2513 certificate, Congress

expressly directed that one seeking the certificate bear the

burden of not only "alleg[ing]" but also "prov[ing]" entitle-

ment to the certificate. 28 U.S.C. § 2513(a); see also Betts, 10

F.3d at 1286; Rigsbee v. United States, 204 F.2d 70, 72 (D.C.

Cir. 1953); Keegan, 71 F. Supp. at 635-36; Burgess v. United

States, 20 Cl. Ct. 701, 704 (Ct. Cl. 1990). Moreover, because

it constitutes a waiver of sovereign immunity, "[t]he unjust

conviction statute has always been strictly construed." Bur-

gess, 20 Cl. Ct. at 704; Osborn v. United States, 322 F.2d 835,

838 (5th Cir. 1963); Keegan, 71 F. Supp. at 636 ("[A] statute

creating a claim against the Government should be strictly

construed, and may not by implication be extended to cases

not plainly within its terms." (internal quotation marks omit-

ted)). Thus, § 2513 imposes a rigorous burden on those who

seek a certificate of innocence.

Third, as every court to consider the question has held,

"[t]he decision to deny a certificate of innocence is committed

to the sound discretion of the district court." Racing Servs.,

580 F.3d at 713; Betts, 10 F.3d at 1283; Rigsbee, 204 F.2d at

72; Eastridge v. United States, 602 F. Supp. 2d 66, 69

(D.D.C. 2009); Keegan, 71 F. Supp. at 635-36. Accordingly,

we review a district court’s denial of a certificate of innocence

for abuse of discretion, e.g., Racing Servs., 580 F.3d at 711-

12, and "must affirm [that] decision unless the court abused

its discretion, or unless the findings underlying its decision

were clearly erroneous." Betts, 10 F.3d at 1283. When a dis-

trict judge has exercised his substantial discretion to deny a

certificate of innocence, "we cannot require him to stultify

himself by certifying an opinion contrary to his real

conviction—no matter what our own view might be—except,

perhaps, in a case in which the refusal to certify innocence

was completely capricious and without rational basis." Rigs-

bee, 204 F.2d at 72; see also Humphrey v. United States, 52

Fed. Cl. 593, 597 (Fed. Cl. 2002) (noting the district court’s

14 UNITED STATES v. GRAHAM

"broad discretion in deciding whether or not to issue" a certif-

icate of innocence), aff’d, 60 F. App’x 292 (Fed. Cir. 2003).

III.

Graham does not challenge any of the above principles.

Indeed, he expressly concedes that the district court had dis-

cretion to determine his entitlement to a certificate of inno-

cence, and that we "must affirm" absent abuse of this

discretion or unless the "findings underlying" it "were clearly

erroneous." Petr.’s Br. 4. Given our deferential review, how-

ever, even if we assume that the district court abused its dis-

cretion in finding Graham ineligible for a certificate of

innocence under § 2513(a)(1) and the first clause of

§ 2513(a)(2),3 Graham has not demonstrated that the court

abused its discretion in concluding that he failed to meet his

burden under the second clause of § 2513(a)(2), i.e. that "he

did not by misconduct or neglect cause or bring about his own

prosecution." We must therefore affirm the district court’s

denial of Graham’s motion for a certificate of innocence.

Consistent with § 2513, the factfinder designated by

Congress—the district court—reviewed all the evidence rele-

vant to Graham’s conduct and state of mind, and found that

Graham was "at the very least negligent" in failing to seek

Board approval before obtaining cash for sick leave in 2004,

and that this neglect brought about his prosecution. Graham,

3

It is not at all clear that the district court did abuse its discretion in rely-

ing on § 2513(a)(1) and the first clause of § 2513(a)(2). On direct appeal,

we concluded only that the Government failed to prove Graham harbored

the requisite intent. This may suggest that Graham’s conviction was "re-

versed or set aside on the ground that he is not guilty of the offense of

which he was convicted" and that he "did not commit any of the acts

charged." 28 U.S.C. § 2513(a)(1), (2). But reversal based on "failure of

proof beyond a reasonable doubt" also "leaves room for the possibility that

the petitioner in fact committed the offense with which he was charged."

Betts, 10 F.3d at 1284; see also Racing Servs., 580 F.3d at 712; Osborn,

322 F.2d at 840; Keegan, 71 F. Supp. at 632, 634-35.

UNITED STATES v. GRAHAM 15

595 F. Supp. 2d at 686. Ample record evidence supports that

finding. Indeed, in his first appeal in our court, Graham

expressly conceded that he "needed Board approval to cash

out sick leave," Petr.’s Reply Br. in No. 07-4106, at 4 n.2,

available at 2007 WL 1702675, and we noted that Graham’s

2004 conversions of sick leave were inconsistent with both

COA’s written policies and the employment contract Graham

prepared and executed. Graham, 269 F. App’x at 285 n.5,

286. The district court recited numerous other facts in its

account of Graham’s "sordid tale of abuse of a position of

public trust," Graham, 595 F. Supp. 2d at 686, and did not

abuse its discretion in concluding that they constituted "ne-

glect" that provided cause for Graham’s prosecution.

In fact, when Graham informed his lawyer in 2004 of his

sick-leave cash payments, his lawyer advised him that he

could not legally cash in his sick leave, and recommended

that he return the funds. J.A. in No. 07-4106, at 356. Although

the attorney’s conclusion proved inaccurate as a matter of

law, see Graham, 269 F. App’x at 286-87, it obviously consti-

tuted prudent and reasonable advice in light of the facts at

hand. In contrast, Graham’s marked lack of prudence—

particularly his repeated failure to seek Board approval for

substantial sick-leave conversions that violated the terms of

an employment contract he had prepared—supports the dis-

trict court’s finding that Graham’s neglect "brought about his

own prosecution." These omissions, combined with substan-

tial evidence of Graham’s imprudent stewardship of COA,

constitute a reasonable basis for Government officers to pros-

ecute, leading them to conclude (as indeed the trier of fact

did) that Graham committed a federal offense by stealing

from his employer.

Graham relies heavily on the Seventh Circuit’s opinion in

Betts, the only court of appeals decision to find an abuse of

discretion in a district court’s denial of a certificate of inno-

cence. Compare Racing Servs., 580 F.3d at 714 (affirming

denial of certificate of innocence), Osborn, 322 F.2d at 843

16 UNITED STATES v. GRAHAM

(same), and Rigsbee, 204 F.2d at 72-73 (same), with Betts, 10

F.3d at 1286 (reversing denial of certificate); see also Brun-

ner, 200 F.2d at 280 (reversing grant of certificate).4 The

court in Betts held that a petitioner fails to satisfy the second

clause of § 2513(a)(2) only when he has "acted or failed to act

in such a way as to mislead the authorities into thinking he

had committed an offense." Id. at 1285. Although the Betts

court acknowledged that "[n]either the statute nor the legisla-

tive history elucidates what kind of misconduct or neglect will

bar relief, and [that] the case law is sparse," id. at 1284, the

court concluded that Congress intended to preclude a certifi-

cate "‘[w]here there has been an attempt to flee, a false con-

fession, the removal of evidence, or an attempt to induce a

witness or an expert to give false testimony or opinion, or an

analogous attempt to suppress such testimony or opinion,’" id.

at 1285 (quoting Keegan, 71 F. Supp. at 638).

We reject this narrow reading of subsection (a)(2) because

it effectively reads "neglect" out of the statute. Each of the

Betts court’s enumerated examples implicates some element

of wrongful intent. Indeed, the Seventh Circuit appears to

limit denial on "neglect" grounds to situations in which "a

defendant has it within his means to avoid prosecution but

elects not to do so." Id. (emphasis added). Tellingly, the Betts

court draws its examples of "neglect" from the discussion in

Keegan of "willful misconduct," see Keegan, 71 F. Supp. at

638, not of conduct that constitutes "neglect" (or "negli-

gence," the prior statutory term), which Keegan never

addresses. Although Betts seeks to avoid a reading of § 2513

that "would require courts to assess the virtue of a petitioner’s

behavior even when it does not amount to a criminal offense,"

4

A casual reader might conclude from our analysis that federal courts

of appeal have regularly had occasion to consider certificates of inno-

cence. In fact, although Congress first enacted a certificate of innocence

statute in 1938, Keegan, 71 F. Supp. at 626, this opinion cites to all pub-

lished circuit-court opinions interpreting § 2513 or its predecessors. See

Racing Servs., 580 F.3d 710; Betts, 10 F.3d 1278; Osborn, 322 F.2d 835;

Rigsbee, 204 F.2d 70; Brunner, 200 F.2d 276.

UNITED STATES v. GRAHAM 17

10 F.3d at 1285, the statute’s "misconduct or neglect" lan-

guage on its face captures noncriminal conduct and thus

requires just such an assessment.

Moreover, even if we did accept the Betts construction of

§ 2513, we could not conclude that the district court abused

its discretion here. The court found that, given that the written

contract did not permit the sick-leave-to-cash conversions and

that Graham had obtained Board approval to modify the con-

tract in 2003, his failure to do so in 2004 at the very least con-

stituted neglect and provided prosecutors a basis for charging

that he intentionally stole from his employer. Graham’s

repeated failure to seek Board approval in 2004, while insuffi-

cient to establish guilt beyond a reasonable doubt, could rea-

sonably be said to constitute "omission[s] by the petitioner

that misle[d] the authorities as to his culpability." Betts, 10

F.3d at 1285.

Further, nothing in our opinion reversing Graham’s convic-

tion foreclosed the district court’s finding that Graham’s

neglect caused his prosecution. Rather, we expressly cabined

our reversal, holding only that "a reasonable trier of fact could

not find, beyond a reasonable doubt, that Graham knowingly

stole any money from COA." Graham, 269 F. App’x at 286.

In reversing Graham’s criminal conviction, we had no occa-

sion to address the question of his "misconduct or neglect,"

but instead expressly limited our analysis to his claim of

insufficient evidence. See id. at 287 n.7. The closest we came

to a discussion of "misconduct or neglect" was to acknowl-

edge the damning nature of some of the evidence against Gra-

ham, but to distinguish it from proof necessary for conviction.

Id. at 285 n.5 ("[T]hese facts . . . are irrelevant so far as the

district court’s determination of guilt is concerned"). Our con-

clusion that "[i]n essence, the Board gave Graham the ability

to cash out his accrued sick leave early without any limita-

tion," id. at 286—which we reached in narrowly addressing

the issue of criminal intent—left open the possibility that Gra-

ham nonetheless acted with neglect in failing to take the pru-

18 UNITED STATES v. GRAHAM

dent, established course of seeking Board approval to

circumvent express company policy.

What Graham refuses to recognize is that the Government’s

failure to offer sufficient evidence to prove his guilt does not

require the district court, in considering the same evidence, to

find him entitled to a certificate of innocence. See, e.g., Rac-

ing Servs., 580 F.3d at 712 ("A reversal of the criminal con-

viction based on insufficiency of the prosecution’s evidence

does not entitle the defendant to a certificate of innocence.")

At trial, the Government had to prove, as a matter of fact, that

Graham acted with a guilty state of mind, e.g. that he intended

to steal from his employer. We have held that the Government

failed to meet its burden of proof on this issue, and so

reversed his conviction. But to obtain a certificate of inno-

cence, Graham must address the same issue and prove, as a

matter of fact, not only that he acted with no criminal intent

but also that no "neglect" on his part caused his prosecution.

The district court exercised its discretion to conclude that

Graham, who presented no evidence in support of his applica-

tion, failed to prove this. We can discern nothing "completely

capricious and without rational basis," Rigsbee, 204 F.2d at

72, in that conclusion. Although a reasonable trier of fact

might disagree, the district court’s finding was surely reason-

able in light of the record evidence.

In sum, the district court’s painstaking, fact-intensive anal-

ysis of the evidence that had been admitted during Graham’s

five-day bench trial resulted in a conclusion consistent with

§ 2513, supported by the facts, and permitted (perhaps even

suggested) by our earlier decision. See Graham, 269 F. App’x

at 285 n.5. The district court, which acquitted Graham on 38

of 39 counts, expressly recognized the difference between

"[b]ad conduct" and "criminal conduct." Graham, 2006 WL

2527613, at *5. And while we have held Graham’s neglectful

conduct irrelevant in determining his criminal guilt, § 2513

renders this evidence relevant, indeed critical, in determining

UNITED STATES v. GRAHAM 19

his eligibility for a certificate of innocence. We find no abuse

of discretion.

IV.

Before concluding, we must briefly respond to the dissent’s

contention that we have misread the second clause of

§ 2513(a)(2). Our friend in dissent maintains that this clause

requires a petitioner to prove only that he did not cause his

prosecution by "misconduct or neglect" that is "separate"

from the charged conduct. (Dissent at 28 (emphasis added).)

The plain language of the statute forecloses this theory.

Section 2513(a)(2) provides that in addition to proving that

"[h]e did not commit any of the acts charged" or that those

acts are not criminal, a petitioner must prove that "he did not

by misconduct or neglect cause or bring about his own prose-

cution." 28 U.S.C. § 2513(a)(2). The statute does not in any

way limit the type of causative "misconduct or neglect" that

will bar relief. To make its argument then, the dissent must

(and does) insert a modifier—"other," "additional," "subse-

quent," or "separate"—before "misconduct" in the second

clause of § 2513(a)(2). (See Dissent at 23, 27, 28.) Thus,

under the dissent’s view, the statute would require a petitioner

to prove only that "he did not by ["other" or "additional" or

"subsequent" or "separate"] misconduct or neglect cause or

bring about his own prosecution."5 Congress could have so

legislated. But it did not.

5

The dissent interprets a statute of its own creation. In addition to

adding these words to § 2513(a)(2), the dissent repeatedly ignores other

statutory language. Hence, the dissent asserts that one may somehow

"elect" to be "neglect[ful]" (Dissent at 32), and that misconduct taking

place once a prosecution "ha[s] already begun" can nonetheless "cause or

bring about" that very prosecution (id. at 28). The dissent would rewrite

the second clause of § 2513(a)(2) to bar relief only when, after a prosecu-

tion "ha[s] already begun," a petitioner commits intentional misconduct

that in and of itself furnishes probable cause for charges "separate" from

that misconduct. (See id. at 28 & n.2.) Congress, however, has chosen a

different path.

20 UNITED STATES v. GRAHAM

Rather, the plain language of the statute dictates that any

"misconduct or neglect" that "cause[s] or bring[s] about" a

petitioner’s prosecution renders him ineligible for a certificate

of innocence. In the face of the unambiguous words of the

statute, we cannot construe § 2513(a)(2) to add language that

Congress omitted. See United States v. Deluxe Cleaners &

Laundry, Inc., 511 F.2d 926, 929 (4th Cir. 1975) (noting that

it is not "permissible to construe a statute on the basis of a

mere surmise as to what the Legislature intended and to

assume . . . that it failed to state something other than what

it plainly stated" (internal quotation marks omitted)). This is

so particularly when the statute we interpret waives sovereign

immunity. See Middlebrooks v. Leavitt, 525 F.3d 341, 347

(4th Cir. 2008) (noting that "waivers of sovereign immunity

‘must be construed strictly in favor of the sovereign and not

enlarged beyond what the language requires’" (quoting United

States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992))). Indeed,

the Supreme Court has directed that proper statutory construc-

tion "begins with the language of the statute," and when, as

here, "the statutory language provides a clear answer, it ends

there as well." Hughes Aircraft Co. v. Jacobson, 525 U.S.

432, 438 (1999) (internal quotation marks omitted).

Contrary to the dissent’s suggestion, our decision to give

effect to the plain language of the statute, and our refusal to

add to or disregard any of its language, does not "conflate[ ]"

the first and second clauses of § 2513(a)(2) or render the first

clause "incoherent or unnecessary." (Dissent at 28-29.) The

first clause requires a petitioner to prove that he did not com-

mit the charged criminal acts or that they do not constitute a

crime; the second clause requires him to prove that his mis-

conduct or neglect did not cause or bring about his prosecu-

tion. The first clause addresses criminal conduct; the second

addresses acts of "misconduct or neglect." Therefore, the two

clauses require a court to ask two distinct questions about the

defendant’s conduct. Even the dissent recognizes that a per-

UNITED STATES v. GRAHAM 21

son may commit an act constituting misconduct or neglect

without committing a crime. (See id. at 28 (listing examples).)6

Nothing in § 2513(a)(2) (or in simple logic) requires the

conclusion that a finding that a given act is not a crime man-

dates a finding that it does not constitute "misconduct or

neglect." Rather, because only acts of "misconduct or neglect"

that "cause or bring about" a petitioner’s "own prosecution"

disqualify him from relief, it seems likely that those acts often

will have originally been charged as crimes, as they were

here. In the dissent’s view, however, only acts that do not gar-

ner criminal charges of their own (and yet somehow cause the

levying of other charges) may prevent a petitioner from

receiving compensation from the Government under the sec-

ond clause of § 2513(a)(2). But an appellate court’s holding

that certain acts are not criminal surely does not eliminate the

possibility that those acts nonetheless constitute "misconduct

or neglect" that "cause[d]" the prosecution. Indeed, in Kee-

gan, one of the first and most exhaustive interpretations of

what is now § 2513, the court concluded that the petitioner

6

The dissent’s interpretation of § 2513(a)(2) also fails to account for the

statute’s purpose, to "compensate[ ] only the truly innocent," Racing

Servs., 580 F.3d at 712, by examining the petitioner’s conduct and the

prosecutors’ charging decisions in light of the "entire record," Brunner,

200 F.2d at 280. To avoid confronting the statute’s true purpose, the dis-

sent invents a new one, asserting that when Congress drafted the second

clause of § 2513(a)(2), it wished to create "an estoppel defense that pro-

tects the United States Treasury against defendants who could have

thwarted a prosecution that had already begun, but instead went to prison

and then attempted to collect money damages." (Dissent at 27.) Not only

is this asserted purpose completely unsupported by caselaw or legislative

history, but it rests on the assumption that Congress’s primary concern in

drafting § 2513(a)(2) was that criminal defendants innocent of any crime

would "elect" to face federal prosecution—and in fact would "elect" to go

to prison—in the hopes that they could subsequently prove their innocence

and then sue for damages. We are not aware of any criminal defendant

who has attempted such a feat. Therefore, it seems extremely unlikely that

Congress would create legislation to prevent recovery in such circum-

stances.

22 UNITED STATES v. GRAHAM

did not qualify for a certificate of innocence in part because

the very conduct for which he was charged "constitute[d]

wil[l]ful misconduct which contributed to bring about his

arrest and conviction." 71 F. Supp. at 640.

In sum, it is the dissent that offers a "novel interpretation"

of § 2513, which if adopted would create a circuit split. (See

Dissent at 23.) Although, as explained within, we disagree

with the Seventh Circuit’s cramped reading of the statute, nei-

ther that court nor any other has held that acts charged as

crimes but ultimately found not to be criminal cannot consti-

tute acts of misconduct or neglect causing the petitioner’s

prosecution. In fact, as noted above, even if we adopted the

statutory construction of the Betts court, we would have to

hold that the district court in this case did not abuse its discre-

tion in denying Graham a certificate of innocence. For even

the Betts court concluded that the disqualifying misconduct or

neglect need only constitute "an affirmative act or an omis-

sion by the petitioner that misleads the authorities as to his

culpability." 10 F.3d at 1285. Graham’s failure in 2004 to

seek Board approval to modify his contract so as to convert

sick leave to cash certainly constitutes such an act or "omis-

sion."7

7

Surprisingly, the dissent advances a broader definition of "neglect" that

Graham has never advocated, perhaps because he recognizes that, if

adopted, that definition would doom even a suggestion of recovery under

§ 2513. (See Dissent at 30 n.3 (quoting Pioneer Inv. Servs. Co. v. Bruns-

wick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993) (defining "neglect" in

another statute as "encompass[ing] both simple, faultless omissions to act

and, more commonly, omissions caused by carelessness")).) For if "ne-

glect" in § 2513 "encompasses . . . simple, faultless omissions to act," Pio-

neer, 507 U.S. at 388, as the dissent apparently believes, then it is obvious

that the district court acted within its discretion in denying Graham a cer-

tificate based on his "faultless omissions" in failing to seek Board

approval in 2004. The district court did not adopt this broad definition of

"neglect." Instead, the court equated "neglect" with "negligence"—perhaps

relying on the fact that Congress originally used the term "negligence" in

the statute, and replaced it with "neglect" only to "clarify ambiguities." See

Revisor’s Notes, 28 U.S.C. § 2513. Because the definition of "neglect" the

court adopted is more favorable to petitioners like Graham than the defini-

tion the dissent prefers, it is no wonder that Graham does not ask us to find

error in the district court’s definition of "neglect."

UNITED STATES v. GRAHAM 23

V.

We of course regret that Graham suffered imprisonment for

an unsupported conviction. However, Congress has deter-

mined that this unfortunate fact alone does not establish eligi-

bility for damages against the Government. Rather, § 2513

vests the court that heard the evidence at trial with the discre-

tion to ascertain not just whether a defendant is not guilty, but

whether he is in fact entitled to a certificate of innocence.

Because the district court did not abuse that discretion, we

must affirm.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

Both the district court and the majority misconstrue § 2513,

imposing a standard of their own design in place of what is

required by the statute. Congress made clear that in order to

recover under § 2513, a petitioner must prove that the

charged acts did not constitute a crime. Separately, a peti-

tioner must prove that he did not cause his own prosecution

through some other misconduct or neglect. The majority errs

by conflating these two elements, requiring a petitioner to

show not only that the charged acts were not criminal but also

that those acts conform to some amorphous, unwritten code

of conduct. Today, through its novel interpretation of the stat-

ute, the majority creates a circuit split and encourages the

government to prosecute acts it deems "immoral" rather than

acts that are criminal under the law.

I.

In order to obtain a certificate of innocence and collect

money damages for wrongful imprisonment, a petitioner must

satisfy three requirements under 28 U.S.C. § 2513. He must

prove: 1) "the record . . . of the court setting aside or reversing

such conviction" establishes that "his conviction has been

24 UNITED STATES v. GRAHAM

reversed or set aside on the ground that he is not guilty of the

offense of which he was convicted," § 2513(a)(1); 2) either

"he did not commit any of the acts charged" or "his acts,

deeds, or omissions in connection with such charge consti-

tuted no offense against the United States, or any State, Terri-

tory or the District of Columbia," § 2513(a)(2); and 3) "he did

not by misconduct or neglect cause or bring about his own

prosecution," § 2513(a)(2).

The majority relies on the substantial discretion afforded to

the district court in determining whether or not a petitioner

has successfully met his burden under the statute. See Maj.

Op. at 2, 13-14. However, this case cannot rest on the district

court’s discretion because the district court’s failure to cor-

rectly apply the statute is an error of law, which is necessarily

an abuse of discretion. See Thorn v. Jefferson-Pilot Life Ins.

Co., 445 F.3d 311, 317 (4th Cir. 2006). Under the majority’s

reading, a person who has met the standard set forth in

§ 2513(a)(1) must not only show that they are truly innocent

under the first prong of § 2513(a)(2), but additionally that the

same, non-criminal conduct does not constitute negligence

under the second prong of § 2513(a)(2). Inserting this extrane-

ous impediment into the statute is unwarranted and unsup-

ported by the law. I therefore would reverse the district court

and remand with instructions to grant the certificate of inno-

cence.

A.

The first two requirements under the statute, § 2513(a)(1)

and the first prong of § 2513(a)(2), evince Congress’ intent to

compensate only those who are "truly innocent," both of the

charges for which they were convicted and any other crime

which their conduct could constitute. See Betts v. United

States, 10 F.3d 1278, 1284 (7th Cir. 1993) (citing Burgess v.

United States, 20 Cl.Ct. 701, 704 (1990) ("Consequently, it

would be necessary to separate from the group of persons

UNITED STATES v. GRAHAM 25

whose convictions have been reversed, those few who are in

fact innocent of any offense whatever.") (citation omitted).

The majority first contends that it is "unclear" if Graham

met his burden to prove his actual innocence under

§ 2513(a)(1) and the first prong of § 2513(a)(2), asserting that

this Court merely held that "the Government failed to prove

Graham harbored the requisite intent," and therefore reversed

his conviction based on insufficiency of the evidence. Maj.

Op. at 14 n.3. However, we made plain in reversing Graham’s

conviction that no crime was committed. United States v.

Graham, 269 F. App’x 281, 286 (4th Cir. 2007).

In overturning his conviction, we held that Graham was not

required to return to the Board for permission to convert his

sick-leave to cash. See id. at 286 ("Quite simply, Graham’s

cash-outs in June and July of 2003 and January and February

of 2004 were not contrary to the authority given to him by the

Board."). The majority makes much of the fact that Graham

failed to seek the Board’s permission in light of the limita-

tions his employment contract placed on his ability to convert

sick-leave to cash. Per the terms of his contract, he was only

allowed such a pay-out only upon illness or termination.

However, we explicitly acknowledged those contractual con-

ditions and held that "the Board’s decisions in January,

March, and May of 2003 resulted in a de facto amendment

that overrode these restrictions." Id. (emphasis added). Gra-

ham’s employment contract term was thus altered by the party

empowered to do so — the Board. Our decision reversing

Graham’s conviction was therefore not based on some techni-

cality or procedural issue, but rather on finding Graham "truly

innocent" of the crime for which he was convicted. "[T]he

record of . . . the court reversing" Graham’s conviction thus

demonstrates that the "conviction has been reversed or set

aside on the ground that [Graham] is not guilty of the offense

of which he was convicted," as is mandated by § 2513(a)(1).

Additionally, in no way does the record below support the

inference that Graham was guilty of some other, unindicted

26 UNITED STATES v. GRAHAM

crime, as is prohibited by § 2513(a)(2). Instead, it is clear that

the government pursued every possible charge against Gra-

ham. Graham’s indictment contained thirty-nine counts, only

one of which resulted in a conviction. Although the majority

points to the district court’s recitation of "Graham’s ‘sordid

tale of abuse of a position of public trust,’" Maj. Op. at 15

(citing United States v. Graham, 595 F. Supp. 2d 681, 686),

none of that behavior was found to be illegal or even evidence

of some further crime of which the government was unable to

obtain proof. Compare, United States v. Keegan, 71 F. Supp.

623, 633-34, 635, 639 (S.D.N.Y. 1947) (holding that denial of

a certificate of innocence is appropriate in cases "where the

indictment may fail on the original count, but claimant may

yet be guilty of another or minor offense"). It is indisputable

that Graham’s conduct "constituted no offense against the

United States, or any State, Territory or the District of Colum-

bia," as is required under § 2513(a)(2).

Because Graham’s conviction was not overturned on proce-

dural grounds, and nothing in the record indicates that the

conduct for which Graham was acquitted somehow consti-

tutes a different crime against the United States, Graham

clearly met his burden under both § 2513(a)(1) and the first

clause of § 2513(a)(2) to show that he was truly innocent.

B.

Beyond the initial question of whether a petitioner is truly

innocent, the final clause of § 2513(a)(2) requires a petitioner

to show "he did not by misconduct or neglect cause or bring

about his own prosecution." 28 U.S.C. § 2513(a)(2) (empha-

sis added). "The statute expressly requires a causal connec-

tion between the petitioner’s conduct and his prosecution; it

does not preclude relief simply because the petitioner engaged

in misconduct or neglect period." Betts, 10 F.3d at 1285

(emphasis added). It must follow that to give meaning to all

words in the statute, one cannot "cause" one’s own prosecu-

tion by engaging in the very conduct which was found to be

UNITED STATES v. GRAHAM 27

non-criminal in the first part of the inquiry. Instead, the sec-

ond prong of the statute must be referring to some additional

conduct, be it intentional or unintentional, willful or neglect-

ful, which misleads the authorities into continuing their inves-

tigation of, and ultimately prosecuting, a person later cleared

of criminal wrongdoing. To say otherwise conflates the "acts,

deeds, or omissions in connection with [the] charge" refer-

enced in the first clause of § 2513(a)(2) and the "misconduct

or neglect" required in the second clause.

Congress made clear that the two inquiries are fundamen-

tally different. A petitioner must show that the underlying

conduct for which he was charged was "no offense against the

United States, or any State, Territory, or the District of

Columbia." § 2513 (a)(2). In other words, the only thing that

a petitioner must prove regarding his underlying conduct is

that it was not a crime. The second clause of § 2513(a)(2)

requires the petitioner show that no other, subsequent conduct

during the course of the government’s investigation induced

the government to commence a wrongful prosecution. Id.

Essentially, the "misconduct or neglect" prong is an estoppel

defense that protects the United States Treasury against defen-

dants who could have thwarted a prosecution that had already

begun, but instead went to prison and then attempted to col-

lect money damages.1

1

The majority’s reading of my view in dissent continues to ignore the

fact that the statute requires a petitioner to show that his "misconduct or

neglect" did not cause his prosecution. In zeroing in on the first clause of

§ 2513(a)(2), the majority repeatedly asserts that "Graham’s failure in

2004 to seek Board approval to modify his contract so as to convert sick

leave to cash certainly constitutes . . . an act or ‘omission.’" Maj. Op. at

22. One can certainly speculate as to whether or not Graham’s conduct at

COA constituted "misconduct or neglect." But the statute requires some-

thing more: a causal link between those actions and the prosecution at

issue. Neither the district court nor the majority has or can point to how

Graham’s conduct, for which he was charged and ultimately acquitted,

caused his prosecution.

28 UNITED STATES v. GRAHAM

Any other reading of the statute would be nonsensical. Why

would Congress explicitly specify that a petitioner need only

prove that the "acts, deeds, or omissions" for which he was

charged "constituted no offense against the United States,"

only to further require in the next clause proof that those same

acts were not an offense against any private entity, public

decorum or social mores? If Congress intended this result,

surely it would not have limited a petitioner’s burden regard-

ing the charged acts to offenses against the State; instead it

would have remained silent or at minimum broadened the

offenses to include more than actual crimes. But it did not do

so. Instead, the statute clearly demarcates the sphere of

charged acts as separate from the "misconduct or neglect"

which "cause or bring about . . . [the] prosecution."2 Thus, a

petitioner could cause his own prosecution by giving a false

confession, removing evidence, or by failing to disclose

clearly exculpatory evidence within his possession, either

intentionally or carelessly. Though this list is not exhaustive,

it certainly encompasses conduct which constitutes miscon-

duct and neglect, which, under § 2513(a)(2), could cause the

petitioner’s prosecution.

Rather than recognize the separate nature of the two prongs

of § 2513(a)(2), the majority conflates the two and affirms the

district court’s finding that "Graham was ‘at the very least

negligent’ in failing to seek Board approval before obtaining

cash for sick leave in 2004, and that this neglect brought

about his prosecution." Maj. Op. at 14 (citing Graham, 595 F.

Supp. 2d at 686) (emphasis added). In equating "neglect" with

"negligence" and then applying it to the charged conduct, the

2

It is important to distinguish between conduct that could cause a gov-

ernment investigation and that which would cause a prosecution. Improper

corporate stewardship could be grounds for government investigation to

determine whether or not a crime has been committed. It would not be rea-

sonable, however, to prosecute unless the government had probable cause

to believe that the defendant’s conduct satisfied all of the elements of the

crime. This is another example of the majority’s failure to analyze the

words actually used by Congress in the statute.

UNITED STATES v. GRAHAM 29

majority renders the first clause of § 2513(a)(2) incoherent or

unnecessary, thereby violating a basic cannon of statutory

construction. See Corley v. United States, 129 S. Ct. 1558,

1566 (2009) ("[A] statute should be construed so that effect

is given to all its provisions, so that no part will be inoperative

or superfluous, void or insignificant.") (citation omitted)). As

stated above, if Congress intended for district courts to re-

evaluate the charged conduct under a lower standard of cul-

pability, it would not have limited the charged conduct to

offenses against the State, nor would it have distinguished the

acts associated with the charged conduct from the "miscon-

duct or neglect" that "causes or brings about" the prosecution.

It is a distortion of the statute to hold that the very act which

was found to be "no offense against the United States" could

mislead the government into prosecuting a defendant and

thereby preclude recovery. If "charged conduct" and "miscon-

duct and neglect" are really interchangeable as the majority’s

reading requires, then there is no foreseeable scenario in

which someone wrongfully imprisoned could recover. After

all, even a person prosecuted for simply being at the wrong

place at the wrong time could easily be said to have been at

the wrong place through his own "neglect."

The majority rejects the Seventh Circuit’s decision in Betts

v. United States, which also holds that the "misconduct and

neglect" prong does not apply to the charged conduct, but

rather requires some additional conduct which "mislead[s] the

authorities into thinking [petitioner] had committed an

offense." 10 F.3d at 1285. The majority’s only basis for doing

so is that "this narrow reading of subsection (a)(2) . . . effec-

tively reads ‘neglect’ out of the statute." Op. at 16. Instead, it

asserts that the "statute’s ‘misconduct or neglect’ language on

its face captures noncriminal conduct" and therefore the

charged conduct should be reassessed under a negligence

standard. Id. at 17. Yet, what the majority fails to recognize

in summarily dismissing the reasoning of the one circuit that

has specifically interpreted the second clause of § 2513(a)(2)

is that Betts specifically accounts for both affirmative miscon-

30 UNITED STATES v. GRAHAM

duct and careless omissions.3 Betts, 10 F.3d at 1285 (holding

that petitioner must have "acted or failed to act in such a way

as to mislead the authorities into thinking he had committed

an offense"). Thus, contrary to the majority’s assertion, the

Seventh Circuit interpreted the statute in its entirety and gave

the statute its most natural reading.4

3

When Congress uses "neglect" without otherwise specifying, it means

"carelessness." Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’Ship,

507 U.S. 380, 388 (1993) ("The word therefore encompasses both simple,

faultless omissions to act and, more commonly, omissions caused by care-

lessness."). The majority reads neglect out of the statute and replaces it

with "negligence." It must do so in order to maintain that the "misconduct

or neglect" prong refers to the same conduct as the "acts charged" prong,

while at the same time reading the statute to allow recovery for a person

charged with completely non-culpable conduct, i.e., simple carelessness.

The majority can only have it both ways by replacing the word actually

used by Congress with a word that it would prefer.

The much easier reading of the statute, and the one that gives Congress’

intended effect to the word "neglect," is to read the "acts charged" and

"misconduct or neglect" prongs separately. Under this reading, an individ-

ual prosecuted for the crime of simple carelessness, even though there is

not and has never been a crime of simple carelessness, could rightfully

recover for wrongful prosecution. On the other hand, the individual

wrongfully prosecuted for a crime he truly did not commit, but who none-

theless carelessly fails to turn over exculpatory evidence in his possession,

would be barred from recovery. This application gives meaning to every

word in the statute and is consistent with the array of estoppel defenses

available in the law.

4

Even if we were to assume arguendo that neglect somehow constitutes

negligence, Graham’s failure to seek Board approval for converting sick-

leave to cash cannot be considered negligent when there was no duty

breached. The majority did not even define the standards under which it

measured Graham’s alleged negligent conduct. In order for a cause of

action to lie in negligence, the proponent must show there was a duty of

care owed. In reversing Graham’s conviction, we held that Graham was

not required to return to the Board to obtain permission to cash-out his

sick leave, see Graham, 269 F. App’x at 286, and therefore had no duty

to return and get permission. Thus, even under the majority’s own reading

of the statute, Graham would have met the requirements and should have

been issued a certificate of innocence.

UNITED STATES v. GRAHAM 31

The majority’s strained statutory construction imputes to

Congress a vision of government power that is anathema to

the rule of law. Consider the statement that "Graham’s impru-

dent stewardship of COA, constitute[s] a reasonable basis for

Government officers to prosecute," Maj. Op. at 15, regardless

of the fact that being a "sub-par" executive is clearly not crimi-

nal.5 The district court described Graham’s misconduct as

including:

Graham operated [COA and All Care] for years as

his own personal domain and for the financial bene-

fit of himself and his family. His $185,000 annual

salary, excessive by comparison to the pay of others

in similar positions, was supplemented by the gener-

ous cash-out of sick leave Graham arranged for him-

self. . . . Graham used employees on company time

to perform personal services for himself and his fam-

ily; bought at least one expensive item, a $6,000

television, through COA to get a better price and

avoid sales taxes; manipulated a SEP IRA to benefit

his family; and assumed a lavish lifestyle including

regular visits to a "gentlemen’s club." "Bailey," a

dancer at Graham’s favorite club, on whom he lav-

ished gifts and money, inquired where his money

came from.

Graham, 595 F. Supp. at 685. The majority repeats this recita-

tion at page eleven of its opinion. Clearly both the district

court and the majority are offended by this conduct. However,

being over-paid, living a lavish lifestyle, and frequenting strip

clubs, for better or worse, are not crimes in this country.

Only probable cause to believe that a person committed

acts that satisfy the elements of a crime gives the government

5

Again, conduct which is not criminal, but leads to a government inves-

tigation, is categorically different from conduct which causes one’s prose-

cution.

32 UNITED STATES v. GRAHAM

reasonable basis to prosecute. The enduring principles on

which our government was founded make it clear that the

government does not have a reasonable basis to prosecute a

person engaged in immoral or "bad conduct" if that conduct

does not satisfy the elements of a crime. It is dangerous to

suggest that any time a person’s conduct offends the sensibili-

ties of three judges or society at large, the government is priv-

ileged to incarcerate him. And it strains credulity to suggest

that the United States Congress intended a statute to be con-

strued as such.

The purpose of § 2513 is to limit compensation for unjust

imprisonment to those who are truly innocent and to estopp

those who elect not to avoid prosecution, by their actions or

omissions, from relief. In light of the error of law committed

by the district court in interpreting § 2513, I would reverse

and remand with instructions to grant the certificate of inno-

cence. Thus, I respectfully dissent.