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August 8, 1991


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.

His petition is denied.

A brief review:

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 for trial.

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. 1990).

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 ...

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