The opinion of the court was delivered by: Richard Mills, District Judge:
Attorney John A. Betts, the Petitioner here, asks for a
certificate of innocence pursuant to 28 U.S.C. § 2513.
Betts is an attorney practicing in Marseilles, Illinois.
This "gothic tale" began when Betts, represented by Attorney
Kenneth A. Kozel, commenced a civil rights action before Chief
Judge Baker in the Danville Division. During the course of his
representation of Betts, Kozel failed to appear at a scheduled
hearing in Danville, appeared forty minutes late for a second
hearing, and failed to apply for admission to the Central
District prior to appearing on behalf of Betts. These
transgressions resulted in Judge Baker ordering Kozel to
appear and show cause why he should not be held in criminal
contempt of court. Kozel's case was transferred to this Court
At this point, Betts and Kozel switched roles with Betts now
appearing as Kozel's counsel in the contempt matter. One of
Betts' first actions was to file a motion to disqualify this
Court from any further proceedings in the Kozel contempt case.
On May 9, 1989, this Court heard arguments on the motion for
disqualification and granted Betts leave to file a written
memorandum of law in support of his motion.
On June 9, 1989, by docket entry, this Court entered an
order setting the motion for disqualification for a final
hearing on June 19, 1989. Notice of the hearing was sent to
Betts and Kozel but neither appeared on the 19th. After
hearing argument from the Government, the Court denied the
motion for disqualification and, upon the Government's motion,
issued arrest warrants for both Betts and Kozel. Betts
surrendered to federal marshals on July 13 and was placed on
bond. The usual bond conditions applied, including the
condition that Betts appear as required at all future
proceedings. (To avoid confusion between Betts' and Kozel's
contempt proceedings, Betts' case was stayed pending
resolution of Kozel's.) On September 6, 1989, Kozel was
convicted of two counts of criminal contempt following a bench
trial. See United States v. Kozel, 908 F.2d 205 (7th Cir.
On November 7, 1989, this Court entered and mailed out an
amended notice of contempt charges ordering Betts to appear on
December 8, 1989, to show cause why he should not be held in
civil contempt for his failure to appear on June 19. On
December 8, Kozel appeared on behalf of Betts and indicated
that Betts would not be making an appearance that day because
he was on the lam from a Ford County, Illinois, arrest
warrant. Betts' hearing was rescheduled for December 28 and
written notice was sent to both Kozel and Betts. The notice
addressed to Betts was returned with a hand-printed notation
on the unopened envelope marked "Return to Sender." Also on
December 8 the Court issued an amended notice of contempt
identifying the contempt as criminal rather than civil.
On December 28, 1989, Kozel appeared but — once again —
Betts was a no show. The Court issued a warrant for Betts'
arrest and on January 18, 1990, he was apprehended by the
United States Marshal's Service. Betts was transferred to the
Metropolitan Correctional Center in Chicago and produced before
this Court for trial on January 24. Following a bench trial,
Betts was convicted of criminal contempt of court and sentenced
to three months' imprisonment with all but the first fifteen
days suspended. Further, Betts received six months' supervised
release and was ordered to pay a special assessment of $25. The
Court denied Betts' motion to stay execution of the sentence
pending appeal and Betts served a total of fifteen days'
imprisonment, with the first ten being credited
for time Betts spent in custody following his apprehension by
the federal marshals.
On appeal, Betts raised numerous challenges to his
conviction. The majority were rejected as meritless. However,
the court of appeals held that a reasonable trier of fact
could not have found that the evidence established, beyond a
reasonable doubt, that Betts was guilty of criminal contempt
for failing to appear at the June 19, 1989, hearing on his
second motion to disqualify. The court based its holding upon
its belief that the docket entry order setting the June 19
hearing "flunked the 'reasonable specificity' test for
disobeyed court orders in federal prosecutions for criminal
contempt." In the Matter of John A. Betts, 927 F.2d 983, 987
(7th Cir. 1991). The court reasoned that because the docket
entry order did not specifically require Betts' personal
appearance it was ambiguous and thus precluded the essential
finding in a criminal contempt proceeding of wilfulness. Id.
(citing United States v. Joyce, 498 F.2d 592, 596 (7th Cir.
1974)). Because of the potential collateral consequences from a
criminal contempt conviction, the circuit court then reversed
Betts' conviction and vacated his sentence. Id. at 988.
Betts now seeks a certificate of innocence pursuant to §
2513. A certificate of innocence is a prerequisite to a suit in
the court of claims against the United States for unjust
imprisonment pursuant to 28 U.S.C. § 1495.
We begin with the language of § 2513:
Unjust Conviction and Imprisonment
(a) Any person suing under section 1495 of this
title must allege and prove that: (1) His
conviction has been reversed or set aside on the
ground that he is not guilty of the offense of
which he was convicted, or on new trial or
rehearing he was found not guilty of such
offense, as appears from the record or
certificate of the court setting aside or
reversing such conviction, or that he has been
pardoned upon the stated ground of innocence and
unjust conviction and (2) he did not commit any
of the acts charged or his acts, deeds, or
omissions in connection with such charge,
constituted no offense ...