IN RE: Mason W. GILPIN 1 (2021)

PUBLISHED OPINION OF THE COURT

Mason W. Gilpin, formerly Midshipman [MIDN] Gilpin, was convicted of a single specification of sexual assault, in violation of Article 120, Uniform Code of Military Justice [UCMJ].² This Court found the conviction factually insufficient and set aside the finding and sentence and dismissed it with prejudice. Appellant now petitions this Court for a certificate of innocence under 25 U.S.C. § 2513. We deny the Petition.

I. Background

Petitioner was a second-year student at the United States Naval Academy. He was friends with MIDN “KS,”³ who served in the same squad in the same company. They both lived in Bancroft Hall. One night, albeit separately, they were out drinking alcohol with friends during liberty. Later that night, Petitioner came to MIDN KS's room, where they engaged in sexual intercourse. They had no prior romantic or sexual relationship. Under the circumstances, this act, even if consensual, violated the Academy's fraternization regulation. About a month later, MIDN KS informed Petitioner she was making an unrestricted report of sexual assault.

After an Article 32, UCMJ, preliminary hearing, the convening authority referred two specifications of sexual assault to a general court-martial. Petitioner pleaded not guilty to sexually assaulting MIDN KS when she was incapable of consenting due to her impairment by alcohol [Specification 1]; and to sexually assaulting MIDN KS when she was asleep, unconscious, or otherwise unaware the sexual act was occurring [Specification 2]. At a trial by military judge alone, Petitioner was acquitted of Specification 1 and also of sexually assaulting MIDN KS when she was unconscious. But he was found guilty of sexually assaulting her when she was asleep or otherwise unaware. Petitioner was sentenced to 30 months’ confinement and a dismissal.

On appeal, this Court found the evidence did not demonstrate Petitioner's guilt beyond a reasonable doubt.⁴ There were reasonable doubts concerning the facts and circumstances of MIDN KS's sexual assault report and her possible motivations: fear of separation from the Academy for fraternization / having sex in the dormitory and embarrassment or anger over her mistaken belief that Petitioner was the source of her sexually transmitted infection. There were also reasonable doubts concerning the possibility she consented: MIDN KS had been drinking, though not to the point of incapacitation, and she was upset over separating from her civilian boyfriend that evening. Finally, MIDN KS reported that she only had snapshots of the evening in her memory, but included in those snapshots were her being on top of Petitioner during intercourse.

Including the time reviewing the Government's Motion for Reconsideration, Petitioner spent about 18 months in confinement.

II. Discussion—A Certificate of Innocence is Not Warranted

A. Jurisdiction

It is well-settled that service courts of criminal appeals are the appropriate courts ⁵ to consider and grant a certificate of innocence, and the Court of Appeals for the Armed Forces [CAAF] in turn reviews our decision for an abuse of discretion ⁶ in our application of 28 U.S.C. § 2513.

B. A Certificate of Innocence Under 28 U.S.C. § 2513

On New Years’ Day in 1890, a riot broke out at a Carnegie steel factory in Pennsylvania.⁷ Striking steel workers of Hungarian descent clashed with Irish strikebreakers. When the riot was finally quelled, one strikebreaker was dead. The accused was a forty-one year-old Hungarian immigrant named Andrew Toth. A devout Christian, he was working in America to save enough money to purchase a home for his wife and four sons and return to them. When Toth was arrested, he was only weeks away from his long-awaited reunion with his family.

A single eyewitness—another Irishman—was adequate to convict Toth at trial, despite that witness initially telling police that “Steve” Toth had committed the crime and being possibly mistaken about where the act occurred at the factory. After the jury found Toth guilty, the judge sentenced him to be “hanged by the neck until you be dead.” Toth's sentence was commuted to life in prison. For nearly two decades, Toth was a model prisoner who became known as “Praying Andy” for his constant devotion and prayer.

In 1910, Steve Toth—the man whom the Irish witness initially named as the culprit—lay dying in Hungary from typhoid fever. He asked for a judge and confessed he was the killer and had fled America immediately after the crime. When this evidence was presented to the Pennsylvania Pardon Board, Andrew Toth was pardoned by the Governor and released from prison. But he had no money to return to Hungary and his family. When the Pennsylvania legislature refused to provide Toth any compensation, Andrew Carnegie stepped in to provide him a lifetime pension. This prompted calls for legislation to compensate the “innocent.” Dean Wigmore and other legal scholars proposed legislation to Congress as early as 1912, but it languished and was not passed until 1938. With some minor changes, that legislation is now 28 U.S.C. § 1495 and 28 U.S.C. § 2513 and provides compensation for those who are “truly innocent”⁸ while satisfying the equitable maxim that “no one shall profit by his own wrong or come into court with unclean hands.”⁹

Before litigating a damage amount at the U.S. Court of Federal Claims,¹⁰ a petitioner must first obtain a certificate of innocence by satisfying the requirements of 28 U.S.C. § 2513. The statute, though not legally ambiguous, has several parts and is perhaps not a model of clarity. It has only been construed a few times by military courts, and not since the early 1980s. The Supreme Court has never interpreted it. Over time, federal courts of appeal have had differing interpretations of the statute, none of which is binding on this Court.

For a petitioner to receive a certificate of innocence, a petitioner must “allege and prove” the following:

1. 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,”11 [first prong]

and

2. a. (1) that “he did not commit any of the acts charged,” [first predicate of first part of second prong]

or

a. (2) “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,” [second predicate of first part of second prong]

and

b. “he did not by his own misconduct or neglect cause or bring about his own prosecution.”12 [second part of second prong]

Thus, the statute's first prong requires that a petitioner not have a conviction reversed based on a legal or procedural error, such as ineffective assistance of counsel,¹³ but that the conviction was reversed because the petitioner was not guilty.

The statute's second prong has two parts, and that first part has two predicates. The first predicate asks whether a petitioner committed any of the “acts charged.” This predicate is where a petitioner must prove, by preponderance of the evidence—as it is his burden in a civil proceeding—to show he did not commit the gravamen of the offense for which he was charged. One federal appellate court, over a dissent, has interpreted the word “acts” to mean any element, even if the element is a constitutionally protected fundamental right, such as possessing a firearm.¹⁴ We decline to adopt such a view. We interpret the statute to mean that Petitioner must demonstrate that he did not, by preponderance of the evidence, sexually assault MIDN KS.

The second predicate simply asks whether any of a petitioner's conduct associated with the conviction was illegal under any other existing laws. It suggests that if the petitioner had a conviction reversed, but could have been convicted had he been charged with violating a different law, he would not satisfy this predicate. A petitioner must satisfy either the first or the second predicate.

After satisfying either the first or second predicate, the second part of the second prong requires that a petitioner did not “bring about his own prosecution” by his own “misconduct” or “neglect.” An early interpretation of this part of the statute opined that it was “rather indefinite.”¹⁵ One circuit court, over a dissent, held this requires a petitioner to essentially have no negligence on his part whatsoever surrounding the circumstances leading to the prosecution.¹⁶ Another circuit court held this meant only that a petitioner cannot have “acted in such a way as to mislead the authorities into thinking he had committed an offense” such as giving a false alibi, “taking the fall” for someone, or withholding evidence.¹⁷ This Court, in a published opinion from 1983, held that “misconduct” did not even have to “amount to a crime” and that “involvement with drugs” though uncharged, led to his eventual prosecution.¹⁸

C. Military Cases Involving a Certificate of Innocence

There are very few military cases involving certificates of innocence. Out of three Army cases and one Marine Corps case, CAAF's predecessor only issued an opinion in one of the Army cases. Only two of the cases have any substantive discussion at all. A military court has never granted a certificate of innocence.

In 1976, the Army Court of Military Review [ACMR] issued its opinion in Forrest I.¹⁹ A split ACMR denied the petition. The original conviction for disobeying a lawful order was overturned due to the order being unlawful. The petitioner was a conscientious objector who was told his second conscientious objector application had been processed and denied, but it was not properly processed. As a result of the denial of his application, he was ordered to board a vehicle that was to transport him to an overseas replacement station. Because his application had not been properly processed, the standing general order, Army Regulation 635-20, that he remain in his battalion, was actually controlling and the order to board the vehicle was unlawful.

The ACMR majority held the petitioner, by refusing to follow the order to board the vehicle that later turned out to be unlawful was merely “not guilty” and was not “truly innocent.”²⁰ It also held that it was “his misconduct” that brought about his prosecution because he “took it upon himself to determine that the commanding general's action was illegal and that he did not have to obey the order.”²¹ The dissent questioned how the petitioner could not be anything but “innocent” of not following an unlawful order and also noted that the act of refusing to follow an unlawful order is not a crime in any other jurisdiction. Finally, the dissent, though agreeing that “misconduct” under the statute “need not amount to a crime,”²² challenged the idea that the petitioner's refusal to follow an unlawful order amounted to misconduct. CAAF's predecessor affirmed,²³ but its short opinion focused on what standard of review to apply.

In 1977, ACMR issued Hall v. United States.²⁴ In a single paragraph, without discussing the facts of the court-martial conviction and subsequent reversal, ACMR denied Hall's petition because he had not shown he did not commit any of the acts charged or that he did not bring about the prosecution by his own misconduct or neglect.

In 1979, in Mitchell v. Stewart, ACMR denied an appeal of a petition for a certificate of innocence that was made to a military trial judge. The court concluded it had no such authority under the UCMJ to hear an appeal of a petition to a trial judge for a certificate of innocence.²⁵

The military case with the most applicability to this Court is McMurry III,²⁶ a Marine's petition to this Court in 1983. In a published opinion, this Court denied McMurry's petition for a certificate of innocence. McMurry was initially convicted for possession of heroin. This Court affirmed his conviction,²⁷ but CAAF's predecessor, the Court of Military Appeals [CMA] reversed our decision and dismissed the charge due to legal sufficiency.²⁸ The CMA held that on the date the government charged McMurry with possessing heroin, he did not actually know where the heroin was hidden. In the days before, he knew where it was, but did not yet have any buyers.

When McMurry subsequently petitioned this Court for a certificate of innocence, we denied it because he failed to demonstrate he did not commit any of the “acts charged” and that he failed to demonstrate that he “did not by misconduct or neglect cause or bring about his own prosecution.” McMurry possessed heroin on a date several days prior to the offense of which he was convicted, and while he did not know the exact location of the heroin when he wanted to sell it, he permitted his roommate to hide it in his barracks room.

D. Analysis

In exercising our discretion in this case, we keep in mind that 28 U.S.C. § 2513 is to be strictly construed ²⁹ because it is a statute that creates a claim against the government and “[relaxes] traditional governmental immunity” for liability.³⁰

Petitioner satisfies the first prong of the statute because his conviction was reversed not on some technical or procedural grounds, but due to the factual or legal insufficiency of his guilt.³¹

Next, Petitioner must show either that he “did not commit any of the acts charged” or that his “acts, deeds, and omissions, in connection with such charge were not an offense” against the United States, any other State, etc. Petitioner fails on the first predicate because he is unable to demonstrate his actual innocence as to the sexual assault. Petitioner relies upon the language from this Court's opinion indicating our finding that the Government had not proven Petitioner's guilt beyond a reasonable doubt. We did, in fact, say that “we are not persuaded the Government proved its case beyond a reasonable doubt.³² ” But that is all we said. Moreover, that is all we are authorized by Article 66 to say. For factual sufficiency, we are only given the options of finding guilt beyond a reasonable doubt and affirming, or not finding guilt beyond a reasonable doubt and setting aside the conviction. “A reversal of a conviction for insufficient evidence does not automatically entitle a person to a certificate of innocence.”³³ One Eleventh Circuit judge writes persuasively in a concurrence that an appellate court in reviewing the sufficiency of the evidence would be engaging in an “ultra vires ․ act of judicial overreach” if it opined that a defendant “did not commit the crime with which she was charged.”³⁴

Even if Petitioner could somehow rely solely on our opinion based on the evidence contained in the record of trial for his court-martial, when we examine that record, we do not find he has met his burden. The key difference here is between “innocent” as compared to (merely) “not guilty.” Petitioner must prove by a preponderance of the evidence that he did not sexually assault MIDN KS. What is often the problem for the Government in alcohol facilitated “he said-she said” cases is now Petitioner's problem. The fact is that no one other than Petitioner and MIDN KS were in that room in Bancroft Hall, and both were intoxicated, or tired, or both, to some level. Both had strong motivations to deem the interaction, respectively, as consensual or non-consensual. Based on the information and evidence in the closed criminal case, we do not find that Petitioner can show by preponderance of the evidence that he did not commit the acts charged. Thus, he fails on this part of the statute.

Because the statute is disjunctive in this portion, Petitioner could satisfy the first part of the second prong by showing the acts, deeds, omissions in connection with the charge were not an offense. Of course, the act—sexual assault—is an offense and Petitioner fails on this part of the statute.

We interpret this portion of the statute to be used to deny a petitioner's claim when the acts for which he was convicted did not amount to the crime for which he was charged, but were actually committed, and constitute a crime in some other jurisdiction or a crime under some other federal law. For example in United States v. Keegan,³⁵ the district court judge, writing the first significant opinion concerning certificates of innocence, denied the petition. This was because while Keegan's conviction for conspiring to counsel evasion of the Selective Service Law was overturned, his underlying conduct, for which he was not charged, still clearly amounted to “the crime of counseling evasion of the Selective Service law, that is, the substantive offense, as distinguished from conspiracy.”³⁶

Finally, despite finding Petitioner failed the first part of the second prong, due to the uniqueness of this issue and the dearth of statutory construction, particularly in military cases, we briefly discuss the second part of the second prong. This part requires that Petitioner did not “by his own misconduct or neglect bring about his own prosecution.” In McMurry III, we interpreted this part of the statute to refer to actions that border on criminal behavior and, in following CAAF's predecessor, we stated “the unjust conviction statute does not require such misconduct to amount to a crime.”³⁷ That being said, we do not discern any misconduct or neglect on Petitioner's part as considered by the statute. Having sex in Bancroft Hall (the Midshipmen's dormitory) is not a criminal offense under the UCMJ, but merely a conduct offense under Naval Academy administrative regulations.³⁸ Therefore, we do not consider it to be misconduct akin to the uncharged drug possession in McMurry III. In considering what constitutes “neglect” under the statute, we agree with Keegan that lists actions taken, or not taken, by an accused to essentially make law enforcement believe he may be guilty,³⁹ such as “an attempt to flee, a false confession, 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.”⁴⁰ We decline to broadly interpret “neglect” in such a way as to essentially sit in personal judgment of any petitioner who might “not have been charged had he comported himself in a more upstanding fashion.”⁴¹

Petitioner is unable to satisfy the requirements of the statute. Though this Court reversed his conviction for factual insufficiency, he has not demonstrated that his circumstance is one of the rare cases qualifying for a certificate of innocence.

III. Conclusion

After careful consideration of the Petition and the record of trial, the Petition is DENIED.

FOOTNOTES

2.   10 U.S.C. § 920 (2016).

3.   As in our original opinion, we refer to the witness as MIDN “KS.”

4.   United States v. Gilpin, No. 201900033, 2019 WL 7480783, 2019 CCA LEXIS 515 (N.M. Ct. Crim. App. Dec. 30, 2019) (unpublished) [Gilpin I].

5.   McMurry v. United States, 15 M.J. 1054, 1055 (N.M.C.M.R. 1983) [McMurry III]. See also Forrest v. United States, 2 M.J. 870 (A.C.M.R. 1976) [Forrest I] (citing Osborn v. United States, 322 F.2d 835 (5th Cir. 1963)); McLean v. United States, 73 F. Supp. 775 (W.D.S.C. 1947); Roberson v. United States, 129 Ct. Cl. 581, 124 F.Supp. 857 (Ct. Cl. 1954); Cox v. United States, 112 F. Supp. 494 (N.D. Cal. 1953).

6.   Forrest v. United States, 3 M.J. 173, 175 (C.M.A. 1977) [Forrest II] (citing Rigsbee v. United States, 204 F.2d 70 (D.C. Cir. 1953); United States v. Brunner, 200 F.2d 276 (6th Cir. 1952)).

7.   See Rob Warden, Andrew Toth, The Nat'l Registry of Exoneration, https://www.law.umich.edu/special/exoneration/Pages/casedetailprep1989.apsx?caseid=334. See also United States v. Keegan, 71 F. Supp. 623, 626 (S.D.N.Y 1947).

8.   McMurry III, 15 M.J. at 1056 (citing Forrest II, 3 M.J. at 173; Rigsbee, 204 F.2d at 70).

9.   Id. (citing Keegan, 71 F. Supp. at 628).

10.   28 U.S.C. § 2513 (e) caps damages at “$100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death” and “$50,000 for each 12-month period of incarceration for any other plaintiff.”

11.   Those who are retried and subsequently found not guilty or those who have been pardoned “upon the stated ground of innocence and unjust conviction” also qualify under this portion of the statute. 28 U.S.C. § 2513(a)(1).

12.   28 U.S.C. § 2513(a)–(b).

13.   Hernandez v. United States, 888 F.3d 219 (5th Cir. 2018) (affirming denial of certificate of innocence because, despite underlying facts appearing that petitioner was the wrong person prosecuted, her conviction was reversed because of ineffective assistance of counsel).

14.   United States v. Mills, 773 F.3 563 (4th Cir. 2014).

15.   Keegan, 71 F. Supp. at 638.

16.   United States v. Graham, 608 F.3d 164 (4th Cir. 2010).

17.   Betts v. United States, 10 F.3d 1278, 1285 (7th Cir. 1993).

18.   McMurry III, 15 M.J. at 1056.

19.   2 M.J. at 870.

20.   Id. at 873.

21.   Id.

22.   Id. at 874 (O'Donnell, J., dissenting).

23.   3 M.J. at 173.

24.   4 M.J. 603 (A.C.M.R. 1977).

25.   7 M.J. 929, 931 (A.C.M.R. 1979). This raises a procedural issue. Civilians are entitled to a hearing in U.S. District Court (often in front of the judge who presided over the case or even conducted the bench trial) where under the Federal Rules of Civil Procedure, they have an opportunity to demonstrate their innocence. Service-members only have the opportunity for a service criminal court of appeals to review the record of a closed criminal case. We very much doubt, absent CAAF's direction, or legislative action, that we have authority under Article 66(f) to direct a trial judge to conduct a civil proceeding to determine whether a petitioner is entitled to a certificate of innocence. Moreover, we also doubt whether we would have the authority to review that trial judge's decision, even if we might arguably have jurisdiction to consider the petition de novo.

26.   15 M.J. at 1054.

27.   United States v. McMurry, No. 76 0012 (N.M.C.R. 8 July 1976) (unpublished) [McMurry I].

28.   United States v. McMurry, 6 M.J. 348 (C.M.A. 1979) [McMurry II].

29.   See Vincin v. United States, 199 Ct. Cl. 762, 766, 468 F.2d 930 (Ct. Cl. 1972).

30.   Keegan, 71 F. Supp. at 636.

31.   In McMurry III, we cited to the legislative history, specifically to the House Judiciary Committee's statement that a petitioner will not qualify under the statute when his “innocence is based on technical or procedural grounds, such as lack of sufficient evidence ․” 15 M.J. at 1056 (citing H.R. Rep. No. 75-2299 (1938)). But, based on the statute, a reversal for factual insufficiency most certainly satisfies the first prong. It is the statute, and not the legislative history, which has meaning and the force of law. Use of legislative history, to quote Justice Robert Jackson, wanders into the realm of “psychoanalysis of Congress” and “not interpretation of a statute but creation of a statute.” United States v. Public Utilities Com., 345 U.S. 295, 319, 73 S.Ct. 706, 97 L.Ed. 1020 (1953) (Jackson, J., concurring). See Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring) (“The greatest defect of legislative history is its illegitimacy. We are governed by laws, not the intentions of the legislators.”). McMurry III should not be read in any way to be an endorsement of the notion that a reversal for factual insufficiency does not satisfy the first prong of the statute. At best, this appears to be a statement that such a reversal alone does not necessarily entitle a petitioner to relief.

32.   Gilpin I, 2019 WL 7480783 at *6, 2019 CCA LEXIS 515 at *17.

33.   United States v. Abreu, 976 F.3d 1263, 1273 (11th Cir. 2020).

34.   Id. at 1277 (Newson, J., concurring).

35.   71 F. Supp. at 623.

36.   Id. at 638.

37.   15 M.J. at 1056 (citing Forrest I, 2 M.J. at 870; Weiss v. United States, 95 F. Supp. 176 (S.D.N.Y. 1951)).

38.   See Commandant of Midshipmen Instruction 5400.6T dated Aug. 2, 2016.

39.   Betts v. United States, 10 F.3d at 1285 (petitioner “must have acted or failed to act in such a way as to mislead the authorities into thinking he had committed an offense.”).

40.   Keegan, 71 F. Supp. at 638.

41.   Betts, 10 F.3d at 1285.

STEPHENS, Senior Judge:

Senior Judge STEPHENS delivered the opinion of the Court, in which Chief Judge MONAHAN and Senior Judge HOLIFIELD joined.