United States of America v. Alvin Gaskins

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2021 Decided August 3, 2021
No. 20-3005
UNITED STATES OF AMERICA,
APPELLEE
v.
ALVIN GASKINS ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00379-6)
Daniel Hornal argued the cause and filed the briefs for
appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Elizabeth
Trosman and James S. Sweeney, Assistant U.S. Attorneys.
Before: SRINIVASAN , Chief Judge, HENDERSON and
PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
Dissenting opinion filed by Circuit Judge HENDERSON.

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PILLARD, Circuit Judge: Alvin Gaskins seeks a certificate
of innocence under 28 U.S.C. § 2513. A certificate of
innocence is not only a formal declaration of innocence but also
a prerequisite to a claim against the United States for
compensation for wrongful conviction and imprisonment.
Gaskins served almost eight years of a twenty-two-year
sentence of imprisonment on a narcotics conspiracy charge
before we reversed his conviction on direct appeal for
insufficient evidence. See United States v. Gaskins, 690 F.3d
569, 576 (D.C. Cir. 2012). At his criminal trial, Gaskins had
invoked his constitutional right not to testify. But, after this
court reversed his conviction, he sought limited discovery and
a chance to testify in support of his motion for a certificate of
innocence. The government opposed the certificate of
innocence but not Gaskins’ procedural requests. The district
court denied the certificate of innocence without acting on
Gaskins’ motion for discovery and a hearing.
A failure to prove criminal culpability beyond a reasonable
doubt requires acquittal but does not necessarily establish an
individual’s innocence. On a motion for a certificate of
innocence, the burden is on the claimant to prove his innocence
by a preponderance of the evidence. Presented with an
acquittal on the ground that the evidence failed as a matter of
law to establish guilt beyond a reasonable doubt, the district
court deciding the innocence question must at least apply the
distinct burden allocation and standard of proof to the relevant
evidence.
We hold that the district court erred by denying Gaskins’
motion for a certificate of innocence without addressing his
procedural motion. The key issue bearing on whether Gaskins
is entitled to the certificate concerns his state of mind, that is,
whether he agreed to work with co-conspirators with the

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specific intent to distribute drugs. The actions the trial
evidence shows he took do not add up to the charged offenses
unless he agreed to join the conspiracy. In the circumstances,
the district court’s sub silentio denial of Gaskins’ unopposed
request for an opportunity to augment the record was error. We
accordingly vacate the denial of the certificate of innocence
and remand for further proceedings.
We deny the request to reassign the case and decline to
reach Gaskins’ merits argument that the existing record
requires an innocence finding. We need not now canvass the
record of Gaskins’ criminal trial to determine whether it alone
might allow, or even require, a finding of innocence. The
precise question whether the district court erred in holding on
the current record that Gaskins was not innocent may be
obviated, depending on how the district court responds to
Gaskins’ requests for limited discovery and an evidentiary
hearing. As for reassignment, trial judges routinely must and
do revisit their own prior rulings with an open mind to redress
errors identified on appeal; we have no reason to think the
district judge will not do so here.
BACKGROUND
1. Statutory Context
Since 1938, Congress has offered relief in the form of
compensation to any innocent person “unjustly convicted of an
offense against the United States and imprisoned.” 28 U.S.C.
§ 1495; see also Act of May 24, 1938, ch. 266, 52 Stat. 438
(codified at 18 U.S.C. §§ 729-732 (1940)). Judging from the
paucity of decided cases, claims for such compensation have
been infrequent. Most of those cases post-date Congress’s
2004 statutory amendment raising the compensation cap from
a $5,000 total to a maximum of $50,000 for each year of

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incarceration, or up to $100,000 per year of incarceration
awaiting a sentence of death. See 28 U.S.C. § 2513(e).
To establish a right to compensation, a claimant must
“allege and prove” certain “requisite facts.” Id. § 2513(a)-(b).
First, the claimant must show that “[h]is conviction has been
reversed or set aside on the ground that he is not guilty of the
offense of which he was convicted.” Id. § 2513(a)(1). Second,
the claimant must establish either that “[h]e did not commit any
of the acts charged” or that “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.” Id. § 2513(a)(2). Finally, he must show that “he
did not by misconduct or neglect cause or bring about his own
prosecution.” Id.
Requisite factual findings must appear in either a
presidential pardon, see id. § 2513(a)(1), (b), (c), or, as relevant
here, a certificate of innocence from a court, id. § 2513(b)—
together with the record, including the acquittal decision itself,
id. § 2513(a)(1). A petition for a judicial certificate of
innocence may be filed “under the existing criminal docket
number” or “as a separate, miscellaneous civil case.” Abu-
Shawish v. United States, 898 F.3d 726, 736 (7th Cir. 2018). A
claimant who succeeds in obtaining such certificate or pardon
may then submit it to the Court of Federal Claims for an award
of compensation from the United States. See 28 U.S.C.
§§ 2513, 1495.
2. Gaskins’ Criminal Case
We described in detail the background of Gaskins’
criminal case in our opinion reversing his conviction, see
Gaskins, 690 F.3d at 571-76, and recount it only briefly here.

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In 2006, “[a] jury convicted Gaskins of being a member of
a conspiracy [to distribute drugs] that was alleged to have
consisted of more than twenty individuals and to have taken
place over a period of five years.” Id. at 571. Gaskins was
tried with three of the other defendants, including the two
alleged leaders of the conspiracy, who were found guilty on
most counts, and an individual charged as a supplier of
phencyclidine (PCP) for the conspiracy, who was acquitted. Id.
at 572, 576. The jury acquitted Gaskins of five of the six counts
against him: four related to using a communication facility to
facilitate a drug trafficking offense in violation of 21 U.S.C.
§ 843(b), and one charging conspiracy to participate in a
racketeer influenced corrupt organization in violation of the
RICO statute, 18 U.S.C. § 1962(d). Id.
The jury found Gaskins guilty on the charge of conspiring
to distribute and possess with intent to distribute heroin, in
violation of 21 U.S.C. § 846. The jury initially returned the
verdict form with “guilty” checked as to the general question
regarding narcotics conspiracy, but “not proven” checked as to
each of the four controlled substances—heroin, cocaine,
cocaine base, and PCP—charged as objects of the conspiracy.
Id. at 576; see also Verdict Form at 48-51, United States v.
Gaskins, No. 04-cr-00379 (D.D.C. Dec. 5, 2006), ECF No.
904. The district court denied Gaskins’ request for a judgment
of acquittal and sent the narcotics conspiracy charge back to
the jury, which again marked “guilty” of narcotics conspiracy,
but this time identified heroin distribution as the “proven”
object of the conspiracy. Gaskins, 690 F.3d at 576; see also
New Verdict Form, United States v. Gaskins, No. 04-cr-00379
(D.D.C. Dec. 5, 2006), ECF No. 905.
In 2008, the district court sentenced Gaskins to 262
months, or nearly twenty-two years, in prison for his role in
conspiring to distribute heroin. Gaskins, 690 F.3d at 576. By

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that time, because he was held without bond before trial, he had
already served nearly three and a half years in prison.
In 2012, on Gaskins’ direct appeal, we overturned his
conviction for evidentiary insufficiency. See id. at 571-72. We
recounted that, during a trial that lasted for three months, see
id. at 576, “the government proffered eight cooperating
witnesses, more than 14,000 intercepted telephone
conversations, visual and video surveillance, and evidence
seized during the execution of search warrants,” id. at 571-72.
The government presumably could have pinned down any
bases for Gaskins’ knowledge of the drug transactions by
asking the cooperators to recount in detail the nature of his
involvement. After all, every cooperator save one faced a life
sentence if he did not obtain a downward departure for
testimony useful to the government. Id. at 573. Given the
depth of the investigation and character of the evidence
amassed, we thought it remarkable that
[n]ot one piece of evidence put Gaskins together
with drugs, or conversations about drugs,
involved in the conspiracy. None of the
cooperating witnesses, many of whom pled
guilty to participating in the conspiracy,
described Gaskins as having any knowledge of
the conspirators’ drug trafficking activities.
None of the recorded telephone conversations
in which Gaskins participated mentioned drugs
or drug transactions, whether in clear or coded
language. Nor did any of the conversations of
any other conspirators mention drugs or drug
transactions in connection with Gaskins. No
surveillance detected Gaskins engaging in drug
transactions, in the presence of drugs, or
engaging in any conspiratorial meetings. And

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despite the execution of multiple search
warrants, including one at the apartment in
which Gaskins lived, the government found no
guns, drugs, or drug paraphernalia associated
with Gaskins. Moreover, although there was
substantial evidence of the wealth amassed by
other conspirators, there was no such evidence
regarding Gaskins. To the contrary, the only
evidence was that he lived in a modest
apartment with his mother.
Id. at 572. We therefore reversed Gaskins’ conviction. We
concluded that, on the evidentiary record, no rational trier of
fact could have found beyond a reasonable doubt that Gaskins
knowingly joined with other individuals with the specific intent
to further the unlawful objective of drug distribution. Id.; see
also id. at 576-77. By then, Gaskins had served nearly eight
years in prison. Id. at 576.
3. Gaskins’ Motion for a Certificate of Innocence
In June 2017, Gaskins filed a motion for a certificate of
innocence pursuant to section 2513. His position all along—in
the criminal case, see id. at 575, and in seeking a certificate of
innocence—has been that he never joined a narcotics
conspiracy, but worked as a “gofer” for Frederick Miller, a
since-convicted leader of the conspiracy, running personal
errands for Miller and carrying out various administrative tasks
for Dream Team Investigations (DTI), Miller’s private
investigations company. Gaskins argued in support of the
certificate that the “absence of inculpatory evidence, occurring
against the background of an extensive investigation and
testimony from many cooperating witnesses who were deeply
involved in all aspects of the conspiracy, was noted by the D.C.
Circuit as strong evidence that [he] did not commit the acts

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charged.” J.A. 19. Gaskins claimed that “[t]he most
reasonable explanation for these inconsistencies is that [he] in
fact had no knowing involvement with the conspiracy nor
intent to further it.” J.A. 19.
As an initial supplement to the trial record, Gaskins
submitted three affidavits in support of his motion for a
certificate of innocence. Gaskins worked for Miller during the
relevant period, and Miller attested that Gaskins “had no role
whatsoever in any conspiracy to distribute narcotics during the
time of his employment at DTI,” which Miller averred was “a
legitimate business.” J.A. 25. The two other affidavits were
from individuals who recounted that they hired DTI as a
legitimate business for lawful tasks. See J.A. 22, 26. Gaskins
submitted the affidavits to corroborate his claim that, while he
worked for DTI, he believed that it was a legitimate
investigative firm doing lawful work, contrary to the
government’s position when it prosecuted Gaskins that he
knew DTI was a front for the narcotics conspiracy, and that his
work was circumstantial evidence of his agreement to the
conspiracy.
For its part, the government in opposing Gaskins’ motion
for a certificate recounted the trial evidence, see J.A. 30-42, and
“quoted the district court’s findings in denying [Gaskins’] post-
trial motion for a judgment of acquittal,” Appellee’s Br. 24
(citing J.A. 45-47). On the key question whether Gaskins
agreed to join the conspiracy with the specific intent to further
its aim of drug distribution, the government took the position
that, “although the government did not prove scienter beyond
a reasonable doubt . . . [t]he direct and circumstantial evidence
presented at trial indicate strongly that the defendant indeed
knowingly participated in this narcotics conspiracy.” J.A. 27.

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The evidence the government saw as persuasive of
Gaskins’ involvement was that:
• Gaskins rented (but did not inhabit) an apartment that
the conspirators used as a “stash house” for drugs and
drug money, J.A. 28; cf. Gaskins, 690 F.3d at 574-75,
578-79;
• Gaskins subscribed to a cellphone that he turned over
to Miller, who used it for drug business, and Gaskins
arranged for quick-turnaround flights for Miller’s
cousin, Charles Brown, a co-defendant who pleaded
guilty to working as a cash courier, J.A. 28; cf. Gaskins,
690 F.3d at 573-75, 579-80; and
• Gaskins performed various financial tasks for DTI that
in fact aided the drug conspiracy, J.A. 28; cf. Gaskins,
690 F.3d at 575-76, 580-81.
In the government’s view, Gaskins “knowingly performed,
under suspicious circumstances, a variety of administrative
tasks that were essential to the conspiracy’s operation,” and it
was “incredible . . . that he performed these functions for a
legitimate business.” J.A. 28.
In his reply brief in support of the motion for a certificate,
Gaskins said that he would “be submitting a motion requesting
a hearing so he may plead his case, and also requesting limited
discovery.” J.A. 52. He attached several redacted documents
he had obtained through FOIA requests, including one that
appears to be a summary of an FBI witness interview with
Miller during a search of his residence. In that interview,
Miller said that Gaskins “handle[d] paperwork for the business,
but that’s it,” yet noted “that it appears like ‘Faggy Alvin’
(ALVIN GASKINS) will get the blame for everything.” J.A.

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69. Wording immediately adjacent to those comments is
redacted from the FOIA copies.
In November 2018, about ten months after he filed his
reply brief, Gaskins filed a “motion for a scheduling
conference,” communicating his expectation that “the Court
would open limited discovery and . . . set a date for an
evidentiary hearing.” J.A. 86 (formatting modified). In that
filing, Gaskins urged that, if the district court did not find his
motion for a certificate of innocence “sufficient” on the
existing record, he “require[d] an evidentiary hearing where
[he] could testify, subject to cross examination, of the
circumstances leading up to his arrest.” J.A. 86. Gaskins noted
that he did “not have the resources to engage in extensive
discovery,” J.A. 87, but stated that “a fair hearing would also
require some limited discovery,” J.A. 86-87. He thus
“request[ed] the right to propound a limited number of requests
for document production and interrogatories.” J.A. 87.
The government never opposed Gaskins’ motion for
limited discovery and an evidentiary hearing. See J.A. 1; Oral
Arg. Tr. 22:5-12. After his motion for a certificate of
innocence had been pending for approximately two years,
Gaskins moved in June 2019 to expedite ruling on his pending
motions. See J.A. 1. Six months later, in December of that
year, the district court denied Gaskins’ motion for a certificate
of innocence. See J.A. 100-07.
The court’s memorandum order began by noting that
Gaskins bore the burden to prove by a preponderance his
entitlement to a certificate of innocence, J.A. 101, emphasizing
that “[e]stablishing a likelihood [of innocence] is a tougher task
than establishing reasonable doubt [of guilt],” J.A. 102. The
court acknowledged that the first requirement, that Gaskins’
conviction was “reversed or set aside on the ground that he is

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not guilty of the offense of which he was convicted,” was met
by our decision on direct appeal. J.A. 102 (formatting
modified). But on the next requirement, the court held that
Gaskins had not established “that he is actually innocent by a
preponderance of the evidence.” J.A. 103 (formatting
modified). “Gaskins does not dispute that he provided
logistical support to the conspiracy but maintains that he did so
unwittingly.” J.A. 103. The court noted that “Gaskins’ failure
to immerse himself more fully in the drug ring paid off in the
form of a reversed conviction,” J.A.103-04, but that “limited
participants in a conspiracy are conspirators nonetheless,” J.A.
104. As the district court saw it, “Gaskins is unlikely to be
innocent” because he “supported the conspiracy for years” by
booking several flights that conspirators took to negotiate or
complete drug transactions, purchasing cellphones under his
name but at the behest of conspirators who used them to
coordinate drug transactions, and leasing an apartment under
his name that conspirators then used as a stash house. J.A. 104.
The court rejected Gaskins’ assertions that he “knew
nothing of the illicit nature of the flights, phones, or apartment”
and provided them thinking they were for DTI, the private
investigations business. J.A. 104. The court pronounced that
“DTI was a front for the drug ring, and hardly pretended to be
an honest enterprise,” pointing to the fact that, as the
government showed at Gaskins’ trial, DTI received no funds
from federal or local courts for investigations on behalf of
indigent defendants. J.A. 105. The court inferred that, “[m]ost
likely, someone closely involved in DTI’s operations would
have known” about its lack of legitimate business and
incoming funds. J.A. 105. The district court did not explain
why payments from federal or local courts were a necessary or
expected incident to a legitimate private investigations
business. Cf. Gaskins, 690 F.3d at 581 (concluding that the
government’s evidence that DTI was not a real business, i.e.,

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“that DTI had not been paid by the public defenders’ offices,”
was “hardly substantial”). The district court likewise
dismissed Gaskins’ attempt “to normalize [his] behavior” of
“consistently signing his name to items and immediately
turning them over to co-conspirators.” J.A. 105. It observed
that Gaskins’ “alternative explanations” were “all possible.
But possible will not win him the day.” J.A. 105-06. The court
underscored that, in its view, “Gaskins is not collateral damage
in a conspiracy he was tricked into participating in—he is a co-
conspirator himself.” J.A. 106-07.
Nowhere in the eight-page order did the district court
mention Gaskins’ motion for limited discovery and an
evidentiary hearing. The court never entered any order, minute
order, or other docket entry addressing it. See J.A. 1. Nor did
the court refer to the three affidavits and redacted FOIA
documents that Gaskins had already submitted in support of his
motion for a certificate of innocence.
This appeal followed. We have jurisdiction under 28
U.S.C. § 1291. See Betts v. United States, 10 F.3d 1278, 1282
(7th Cir. 1993).
DISCUSSION
A claimant seeking a certificate of innocence bears the
burden of proof of the facts required by section 2513(a). See
Rigsbee v. United States, 204 F.2d 70, 72 n.2 (D.C. Cir. 1953)
(citing United States v. Keegan, 71 F. Supp. 623, 635-36
(S.D.N.Y. 1947)). Entitlement to a certificate requires that a
preponderance of the evidence—the default standard in civil
cases—support each of the requisite elements. See United
States v. Abreu, 976 F.3d 1263, 1270 (11th Cir. 2020)
(collecting cases).

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Gaskins urges us to reverse the district court’s denial of his
motion for a certificate of innocence on the ground that “[t]here
is very strong evidence of [his] factual innocence already on
the record, such that he has proven his innocence by a
preponderance.” Appellant’s Br. 5. Alternatively, he seeks
vacatur of the district court’s order and remand for the limited
discovery and evidentiary hearing that he sought. He notes that
“[t]he issues upon which the district judge based his denial of
Mr. Gaskins’ motion were barely developed at trial.” Id.
If we remand for further proceedings, Gaskins argues, we
should reassign the case to a different district judge. He asserts
reassignment is warranted because of both the “structural
concern” inherent in “ask[ing] a judge to determine if evidence
he or she already found to be proof beyond a reasonable doubt
of guilt could, at the same time, be proof by the preponderance
of the evidence of innocence,” id. at 24-25, and what Gaskins
views as signs of bias against him in this case, id. at 29.
We vacate the denial of the certificate of innocence and
remand for further proceedings because the district court
denied Gaskins’ motion for a certificate without
acknowledging or addressing his motion for limited discovery
and a hearing. The district court on remand must rule on
Gaskins’ procedural requests and reconsider his motion for a
certificate of innocence in light of its ruling. However, we see
no basis requiring reassignment of this case to a different
district judge, so deny Gaskins’ request for reassignment on
remand.
1. Gaskins’ Section 2513(a) Certificate-of-Innocence
Claim
All agree that Gaskins has satisfied the first of the three
requirements of section 2513(a)—that “[h]is conviction has
been reversed or set aside on the ground that he is not guilty of

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the offense of which he was convicted.” 28 U.S.C.
§ 2513(a)(1). Our decision on direct appeal overturning his
narcotics conspiracy conviction for insufficient evidence
established that he had not been proven guilty of the heroin
conspiracy charge on which he was convicted. See J.A. 102.
Gaskins acknowledges that, “as a general rule, an opinion
overturning a conviction for lack of evidence is not enough” to
satisfy at least the first of the two ways to meet the second
requirement of section 2513(a), Oral Arg. Tr. 16:21-23: that the
claimant show that he “did not commit any of the acts
charged,” 28 U.S.C. § 2513(a)(2). Cf. Betts, 10 F.3d at 1284
(holding that a prior appellate opinion, which overturned the
claimant’s contempt conviction because the scheduling order
with which he failed to comply was not sufficiently specific to
compel his attendance, “ma[de] clear” that the claimant’s
conduct did not constitute a crime, satisfying the second of the
two ways to meet the second requirement of section 2513(a)).
Even though there are only a handful of appellate decisions on
certificates of innocence, the general point that a finding of
innocence differs from an acquittal seems well established.
In Rigsbee v. United States, the first of only two opinions
from our court applying section 2513, we explained that “there
would be no point in requiring the certificate of the court” if
nothing more than the reversal of a conviction were ever
needed to satisfy section 2513. 204 F.2d at 72 n.2 (quoting
Keegan, 71 F. Supp. at 636). “Had the Congress intended to
authorize suit for damages in the Court of Claims . . . simply
because” a conviction was set aside, id. at 71, it would not have
further required a finding that the claimant “did not commit the
acts charged or that, if he did, his acts were . . . not criminal,”
id. at 72.1 Other circuits concur. In Pulungan v. United States,
1 We also addressed section 2513 in Diamen v. United States, 604
F.3d 653 (D.C. Cir. 2010). But that opinion concerned “a purely

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for example, the Seventh Circuit reiterated its adherence to our
holding in Rigsbee “that, for the purpose of § 2513, acquittal
differs from innocence,” because “[a] conclusion that the
prosecutor did not prove a charge beyond a reasonable doubt
differs from a conclusion that the defendant is innocent in fact.”
722 F.3d 983, 985 (7th Cir. 2013). And, since Rigsbee, “every
later court that has considered the subject has agreed.” Id.; see,
e.g., Abreu, 976 F.3d at 1272. In recognizing the general rule,
we need not address whether certain acquittals might alone
suffice to establish innocence. See Abreu, 976 F.3d at 1273
(reserving the question whether “an appellate decision
reversing a conviction for insufficient evidence can by itself
entitle a person to a certificate of innocence”); see also Betts,
10 F.3d at 1284; Keegan, 71 F. Supp. at 626, 632, 638 (noting
congressional attention to convictions based on mistaken
identity as examples of punishment of persons who were
“entirely innocent”).
The government asserts that Gaskins relies on only the first
of the two routes for satisfying what is often referred to as the
“actual innocence” requirement, i.e., he contends that he did
not in fact commit the acts charged because he lacked the
knowledge and requisite specific intent to further the
conspiracy’s objective, not that his acts constituted no crime.
Appellee’s Br. 36. Gaskins has not directly responded to that
assertion, and we need not resolve the point. For current
purposes, it suffices to say that Gaskins asserts his innocence
on the ground that “[t]here is no evidence” that he “either
legal issue” not presented here: whether the estate of a defendant who
had sought habeas relief but died before the district court could issue
the writ nonetheless could obtain a certificate of innocence. Id. at
655. We held that the estate could not obtain the certificate because
the deceased defendant’s conviction had not first “been reversed or
set aside” as required under section 2513(a)(1). Id. at 654.

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agreed to participate or acted with the specific intent to further
[the conspiracy’s] aims.” Appellant’s Br. 10.2
As noted above, Gaskins does not equate every reversal
for want of evidence with a finding of innocence. See also
Reply Br. 13. Rather, he casts this as the unusual case in which,
even though he bears the burden to establish his innocence, that
burden has already been met. See Oral Arg. Tr. 16:8-20:21.
He appears to make two related arguments to that effect. We
reject the first and decline to reach the second given our
decision that a remand is required in any event.
First, Gaskins contends that, even though not all decisions
vacating criminal convictions for evidentiary insufficiency
necessarily constitute findings of innocence, our earlier
decision in his case does. He highlights our holding that “there
was no affirmative evidence that [he] knowingly joined the
narcotics conspiracy or had the specific intent to further its
aims.” Appellant’s Br. 1; see id. at 4-5 (seeking reversal of the
denial of a certificate on the ground that “the district court’s
order directly contradict[s] this court’s findings,” id. at 5); id.
at 8-9; Oral Arg. Tr. 16:8-18:20. That claim closely parallels
2 The district court noted that “limited participants in a conspiracy
are conspirators nonetheless.” J.A. 104. Of course, conduct that in
fact materially benefits conspirators without the requisite knowledge
of and intent to further the conspiracy is no crime. See, e.g., United
States v. Lorenzo, 534 F.3d 153, 160 (2d Cir. 2008) (holding that
mere “presen[ce] at and participat[ion] in events that furthered the
conspiracy” could not support a narcotics conspiracy conviction
where “there [wa]s insufficient evidence to show” knowledge of and
specific intent to further that conspiracy); see also Gaskins, 690 F.3d
at 580 & n.5 (explaining that mere association with conspirators
could not support the conviction); Appellant’s Br. 10 & n.2 (noting
Delta Airlines’ innocence where it unwittingly aided the narcotics
conspiracy by transporting conspirators). To the extent that the
district court held otherwise, that was error.

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one the Eleventh Circuit rejected in United States v. Abreu, 976
F.3d at 1273, and we likewise hold it unavailing here.
We need go no further than the court did in Abreu: We
hold only that “on the particular facts before us” the prior
appellate decision does not by itself amount to a finding of
innocence. Id. at 1273 n.6. To be sure, we emphasized that
“there was no affirmative evidence that Gaskins knowingly
joined the narcotics conspiracy or had the specific intent to
further its aims.” Gaskins, 690 F.3d at 577. But, again, that
opinion addressed only whether any “reasonable jury could
have found, beyond a reasonable doubt, that Gaskins
knowingly entered into a conspiracy with the specific intent to
further the objective of distributing narcotics.” Id. at 582. We
had no occasion to opine on whether a preponderance of the
evidence from the criminal trial showed Gaskins to be innocent
of the crime on which he was convicted and imprisoned, as
necessary to satisfy the second requirement of section 2513(a).
A record lacking evidence sufficient to prove criminal
culpability beyond a reasonable doubt certainly might also
support a finding of innocence by a preponderance for purposes
of section 2513. But the difference in standards and allocation
of burdens between a criminal trial and a civil proceeding for a
certificate of innocence will generally necessitate a distinct
determination.
Gaskins’ second argument is not so readily dispatched.
Apart from his reliance on what he takes to be a finding of
innocence in our prior opinion, Gaskins contends that the
underlying record—measured against the applicable civil
burden and standard, even without the discovery and
evidentiary hearing he sought—legally entitles him to such a
finding. See Appellant’s Br. 5 (“There is very strong evidence
of Mr. Gaskins’ factual innocence already on the record, such
that he has proven his innocence by a preponderance.”); id. at

-- 17 of 41 --

18
9-18; Oral Arg. Tr. 18:21-20:21. He canvasses the evidence in
the record and argues that it not only fails to support the district
court’s memorandum order but actually requires the opposite
conclusion.
Gaskins’ task on this second theory would be akin to that
of a civil plaintiff seeking judgment in his favor on a fact
question on which he bears the burden of proof. See generally
Fed. R. Civ. P. 50(a); Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co.,
129 F.3d 143, 148-50 (D.C. Cir. 1997) (upholding district
court’s grant of judgment as a matter of law to party bearing
the burden of proof because, on the question whether the
movant acted reasonably, “no reasonable fact-finder could find
that [the movant’s] decision . . . was unreasonable under the
uncontested facts of this case,” id. at 149); Radtke v. Lifecare
Mgmt. Partners, 795 F.3d 159, 165-66 (D.C. Cir. 2015) (stating
that judgment as a matter of law for the party with the burden
of proof “is reserved for those extreme circumstances where
the effect of the evidence is not only sufficient to meet [the]
burden of proof, but is overwhelming, leaving no room for the
jury to draw significant inferences in favor of the other party”
(quoting Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990))).
In Gaskins’ view, even without his testimony directly
denying that he ever agreed with the others to work together to
distribute narcotics, there is no record basis from which a
factual determination might reasonably be made that he did.
“[W]hen you look at the constellation of evidence,” Gaskins
contends, “regardless of what this Court said in its previous
opinion,” the evidentiary record “proves . . . even beyond a
shadow of a doubt” that he was not involved in the drug
conspiracy. Oral Arg. Tr. 19:23-20:3. He reviews in detail and
offers rebuttals to the facts the district court cited as suggesting
that Gaskins knew that Miller and other conspirators were
dealing drugs. See Appellant’s Br. 9-18.

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19
We decline to rule on that claim in the current posture. It
would be premature to do so here, before the record has been
determined to be complete. Because, as we discuss below, we
vacate the district court’s decision to deny the certificate
without ever ruling on Gaskins’ procedural motion, we need
not draw conclusions from the record as it stands. If the district
court gives Gaskins the opportunity he seeks for limited
discovery and to testify under oath, that additional evidence
could affect the court’s assessment of the merits and, in any
event, would pose the issue on a record that differs in ways that
could prove material.
Nor need we reach the third requirement of section
2513(a)—that Gaskins show he “did not by misconduct or
neglect cause or bring about his own prosecution.” 28 U.S.C.
§ 2513(a)(2). That requirement, too, necessitates a factual
determination that any discovery or testimony on remand could
affect. We note only that what counts as bringing about one’s
own prosecution within the meaning of section 2513(a)(2)
remains an open question in our circuit. Compare Betts, 10
F.3d at 1285 (the requirement means that the person seeking a
certificate “must have acted or failed to act in such a way as to
mislead the authorities into thinking he had committed an
offense,” e.g., by “falsely confess[ing] to a crime or
intentionally withhold[ing] exculpatory evidence”), and
United States v. Grubbs, 773 F.3d 726, 732 n.4 (6th Cir. 2014)
(endorsing the Betts approach), with United States v. Graham,
608 F.3d 164, 174 (4th Cir. 2010) (rejecting the Betts approach
and instead reading section 2513(a)(2) to call for an assessment
of “the virtue of a petitioner’s behavior even when it does not
amount to a criminal offense” (internal quotation marks
omitted)).

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20
2. Gaskins’ Procedural Requests
The district court denied Gaskins’ motion for a certificate
of innocence without addressing his unopposed motion for
limited discovery and an evidentiary hearing. Gaskins and the
government agree that abuse of discretion is the appropriate
standard for reviewing the district court’s denial of Gaskins’
procedural requests. Oral Arg. Tr. 8:14-9:7; Appellee’s Br. 47;
see also Abu-Shawish, 898 F.3d at 737.
As discussed above, a certificate of innocence requires
determinations of fact. Section 2513 places the burden to show
innocence—including lack of culpable intent—on a claimant
who in many cases will not have testified at the criminal trial.
The government itself acknowledges that, with “an inchoate
crime like conspiracy, . . . your best evidence” is “[w]hat is in
Mr. Gaskins’ mind.” Oral Arg. Tr. 24:21-22; see id. at 36:14-
15; cf. Gaskins, 690 F.3d at 581 (citing Oral Arg. Rec. 23:12-
22 (government acknowledging that, because Gaskins never
testified, the jury could not infer that he lied about DTI)).
Section 2513 also requires a showing that the claimant did not
bring about his own prosecution by misconduct or neglect—a
matter not explored at all in the typical criminal trial. Before
making those determinations, as to which the claimant bears
the burden of proof and the government shifts to the rebuttal
role, ordinary civil procedure principles suggest that a district
court would generally allow both sides to submit evidence. See
Abu-Shawish, 898 F.3d at 739.
A pair of Seventh Circuit opinions is instructive. In Abu-
Shawish v. United States, the court vacated an order denying a
certificate of innocence and remanded for further proceedings
because “Abu-Shawish received no meaningful opportunity to
be heard.” Id. at 737. The claimant’s “petition was dismissed
without any response from the government, without any

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21
briefing or hearing, and by imposing a pleading standard not
compatible with civil proceedings and without an opportunity
to try to cure the pleading defects identified by the district
court.” Id.3
And that circuit’s decision in Pulungan shows that a need
for an evidentiary hearing can cut the other way. There, the
court reversed and remanded a grant of a certificate of
innocence where the district court “did not hold a hearing.”
722 F.3d at 985. On direct appeal, the court had reversed
Pulungan’s conviction for attempting to export defense articles
without a license because of insufficient evidence that he knew
a license was required, id. at 984; it also held that the district
court had erred in instructing the jury that the riflescopes at
issue were “defense articles” as a matter of law, id. at 985.
Without a hearing, the court of appeals held, the record could
not support the certificate of innocence because, if the
riflescopes Pulungan sought to export met the regulatory
criteria for defense articles—a fact issue never resolved in his
favor because of the erroneous jury instruction, id.—“then as a
practical matter Pulungan could show actual innocence only by
testifying about his knowledge; the judge then could determine
whether he [wa]s telling the truth,” id. at 986.
Cases illustrating a need for an evidentiary hearing on
claims of innocence do not mean that additional evidentiary
3 The dissent points out that Abu-Shawish, unlike Gaskins, did not
have a lawyer. Dissent 9. But the Seventh Circuit focused on that
fact only in relation to the “too stringent a [pleading] standard” that
the district court applied to Abu-Shawish’s petition for a certificate
of innocence, Abu-Shawish, 898 F.3d at 737—and nonetheless said
that, even under the ordinary standard for persons represented by
counsel, see Fed. R. Civ. P. 15(a)(2), the district court would have
erred in denying the petition without leave to replead, see Abu-
Shawish, 898 F.3d at 738.

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22
development will always be sought or needed. If the claimant
“declines to submit additional evidence—by affidavit or
otherwise—the district court could properly resolve the
petition based on the trial records alone.” Abu-Shawish, 898
F.3d at 739. In Abreu, for example, because the claimant
“chose to base her request for a certificate of innocence solely
on” the prior decision vacating the conviction, and neither
sought an evidentiary hearing nor asked for leave to submit
evidence before the district court, the Eleventh Circuit found
no error in the district court’s decision to deny the certificate
without augmenting the record from the criminal trial. 976
F.3d at 1275; see id. at 1266, 1269.
Here, Gaskins expressly requested that, if the court did not
find his motion for a certificate “sufficient” based on the trial
record together with the affidavits and FOIA documents
attached to his motion, it convene “an evidentiary hearing
where [he] could testify, subject to cross examination, of the
circumstances leading up to his arrest.” J.A. 86. He specified
that “a fair hearing would also require some limited discovery.”
J.A. 86-87. The requests were directly aimed at filling
evidentiary gaps, if any there were. He sought, for example,
DTI’s papers, which the government had seized, to help him
support his contention that he did what he believed was
legitimate work for DTI. See J.A. 90; Appellant’s Br. 21-22.
Gaskins also asked to see unredacted versions of the documents
he had received through FOIA requests and attached to his
reply brief on the motion for a certificate. See J.A. 88-89;
Appellant’s Br. 21-22. The government says that Gaskins does
not need access to the unredacted summary of what seems to
be an FBI witness interview with Miller because Gaskins
submitted an affidavit from Miller with his motion for a
certificate and thus “could have had Miller explain his redacted
interview statements.” Appellee’s Br. 52. But the unredacted
summary, as a contemporaneous account, could be a source of

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23
valuable information, beyond any recollection of the interview
that Miller might provide (assuming the document reflected an
interview of Miller and not someone else).
The government opposed Gaskins’ motion for a certificate
of innocence but not his motion for limited discovery and an
evidentiary hearing. See J.A. 1; Oral Arg. Tr. 22:5-12. The
government’s acquiescence to Gaskins’ procedural requests
naturally raises the prospect of their being granted. At a
minimum, the district court must explain their denial.
Before us, the government faults Gaskins for failing to
submit his own affidavit with his motion for a certificate, even
as he submitted affidavits from three other people, see, e.g.,
Oral Arg. Tr. 27:19-28:5—a point never made below. In any
event, Gaskins stated that he was ready and willing to testify.
J.A. 86. His failure to preview his testimony in an affidavit
does not defeat his request. Indeed, given the centrality of
Gaskins’ own credibility to the decision on the motion for a
certificate, there is little chance the district court would have
credited any affidavit Gaskins might have submitted without
affording the government an opportunity to cross-examine
him. If the government or the court thought he should submit
an affidavit either in advance or in lieu of live testimony, it
failed to say so at the time. Gaskins’ request for limited
discovery and a chance to testify explained what he sought and
why. No more was required to preserve his claim to an
opportunity to supplement the record of the criminal trial.
In its memorandum order denying Gaskins’ motion for a
certificate, the district court never acknowledged those
requests. Yet it rejected Gaskins’ arguments on section
2513(a)(2)’s actual-innocence requirement because, while they
were “all possible,” it found “the more likely explanation to be
that Gaskins knew of the conspiracy and participated in it

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24
anyways.” J.A. 105-06. Gaskins’ requests aimed at
developing the key factual issue of his own state of mind. On
this record, we can discern no grounds for implicitly denying
the limited discovery and evidentiary hearing that Gaskins
requested and that could have rendered probable the
acknowledged possibility that Gaskins’ innocence claim is
valid.
When a court vested with discretion makes a decision that
is neither self-explanatory nor supported with any reasoning,
we vacate and remand for explanation rather than guess at its
grounds. See, e.g., EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d
1406, 1410 (D.C. Cir. 1996) (remanding for explanation of
discretionary decision to seal certain documents); Jackson v.
Culinary Sch. of Wash., Ltd., 59 F.3d 254, 255-56 (D.C. Cir.
1995) (remanding for explanation of discretionary decision
whether to grant declaratory relief). “When we review a
district court’s decision for an abuse of discretion, it is
imperative that a district court articulate its reasons.”
McCready v. Nicholson, 465 F.3d 1, 15 (D.C. Cir. 2006)
(formatting modified); see Foman v. Davis, 371 U.S. 178, 182
(1962) (stating that a discretionary decision made by a district
court “without any justifying reason . . . is not an exercise of
discretion” but “merely abuse of that discretion”). In
particular, “[w]ith no evidence from the Government” negating
a requester’s identified need, and “no stated basis [by the court]
for denying discovery on this front, we must remand for further
proceedings so that the District Court may either grant a
‘reasonable opportunity to complete discovery,’ or explain why
discovery is not warranted on other grounds.” McCready, 465
F.3d at 15 (citation omitted) (quoting Khan v. Parsons Glob.
Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir. 2005)). The
absence of explanation for the district court’s decision not to
allow any discovery or evidentiary hearing on the distinct
question of innocence calls for vacatur and remand here.

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25
Our colleague maintains that Rigsbee established a
“uniquely deferential” standard of review for certificate-of-
innocence proceedings that requires affirmance here. Dissent
10. But, in Diamen, we read Rigsbee to require review under
the familiar abuse-of-discretion standard, not a distinct
standard judicially minted for section 2513 claims. See
Diamen, 604 F.3d at 655 (citing Rigsbee, 204 F.2d at 72). And
we noted that other circuits had done the same. See id. (citing
Betts, 10 F.3d 1278); see also Grubbs, 773 F.3d at 731 (citing
Diamen, 604 F.3d at 655-56). We read Rigsbee in that way
notwithstanding its wording that an order denying a certificate
of innocence should stand unless “completely capricious and
without rational basis.” Rigsbee, 204 F.2d at 72. The dissent’s
accusation that we are disregarding our precedent, see Dissent
1, is even further off base given that there was no dispute in
Rigsbee regarding fact development; our review was limited to
the merits of the district court’s denial of the innocence claim,
see Rigsbee, 204 F.2d at 72-73—an issue we do not reach here.
We review a district court’s procedural rulings relating to
a certificate of innocence just as we review them in other
contexts. Congress’s decision not to specify procedural
requirements in section 2513 does not mean that none apply,
nor that a district court’s failure to explain its denial of
requested procedures is less problematic than it otherwise
would be. See Dissent 8. We therefore vacate the district
court’s denial of the certificate of innocence and remand for
further proceedings.
3. Gaskins’ Request for Reassignment
Finally, Gaskins asks that we assign the case to a different
judge on remand. The same district judge presided over
Gaskins’ criminal trial and his motion for a certificate of
innocence, as appears to be the norm in these cases. Gaskins

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26
raises two objections on this score. First, he identifies a
“structural concern” with “ask[ing] a judge to determine if
evidence he or she already found to be proof beyond a
reasonable doubt of guilt could, at the same time, be proof by
the preponderance of the evidence of innocence.” Appellant’s
Br. 24-25. Second, Gaskins contends that this case presents
“ample evidence” that the trial judge did not approach his
motion for a certificate of innocence with an open mind. Id. at
25. Specifically, Gaskins cites statements from the district
court’s memorandum order that he says “could be read as
sarcastic or derogatory,” such as the court’s description of
Gaskins’ story as “remarkable” and its assertion that “Gaskins
is not collateral damage in a conspiracy he was tricked into
participating in—he is a co-conspirator himself.” Id. at 29
(citations omitted).
The government opposes Gaskins’ request for
reassignment, noting that Gaskins cites no case in which an
appellate court ordered, or even considered, reassignment in
the context of a remand for further consideration of a section
2513 motion. See Appellee’s Br. 53. The government argues
that our precedent has “made clear that § 2513 requires the trial
judge to provide his opinion regarding the factors of subsection
(a)(2),” id. at 55, and quotes Rigsbee’s statement that the
decision whether to grant a certificate “is committed to the
discretion of the presiding [trial] judge,” id. at 53 (alteration in
original) (quoting Rigsbee, 204 F.3d at 72).
To the extent that the government argues that the judge
who presided over the trial of the person seeking a certificate
is the only judge authorized to issue the certificate, it
overshoots the mark. To be sure, efficiencies may be gained
from assigning decision on a motion for a certificate of
innocence to a judge already familiar with the trial record. But
section 2513 requires only “a certificate of the court . . .

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27
wherein such facts are alleged to appear,” 28 U.S.C. § 2513(b)
(emphasis added). The statute does not require assignment to
the same judge who presided over the trial.
At the same time, the “structural concern” that Gaskins
raises does not render assignment to the same judge
categorically inappropriate in the context of section 2513.
District judges are routinely entrusted to follow directions on
remand from appellate courts, and they well understand and
embrace their obligation to do so. Reassignments are reserved
for “unusual circumstances,” such as where it appears the judge
would have “substantial difficulty in putting out of his or her
mind the previously-expressed views or findings.” United
States v. Wolff, 127 F.3d 84, 88 (D.C. Cir. 1997) (internal
quotation marks omitted).
Evidence of bias in a particular case could, of course,
necessitate remand to a different judge. But this is not such a
case. Some of the statements cited by Gaskins might have
struck him as dismissive, but they do not exhibit bias or a lack
of an open mind as would meet our high standard for
reassignment. See id. Thus, we decline to remand Gaskins’
motion to another judge.
* * *
For the foregoing reasons, we vacate the district court’s
denial of Gaskins’ motion for a certificate of innocence and
remand for further proceedings.
So ordered.

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KAREN LE C RAFT HENDERSON , Circuit Judge, dissenting:
“The tendency to disregard precedents . . . has become so
strong . . . as, in my view, to shake confidence in the
consistency of decision and leave the courts below on an
uncharted sea of doubt and difficulty without any confidence
that what was said yesterday will hold good tomorrow.”
Mahnich v. S. S.S. Co., 321 U.S. 96, 113 (1944) (Roberts, J.,
dissenting).
Almost 70 years ago, we addressed a certificate of
innocence appeal pursuant to 28 U.S.C. § 2513 and concluded
that “we cannot require [the presiding district judge] 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.” Rigsbee v.
United States, 204 F.2d 70, 72 (D.C. Cir. 1953). We have
addressed § 2513 only one other time, see Diamen v. United
States, 604 F.3d 653 (D.C. Cir. 2010), and Diamen did not
purport to abrogate Rigsbee’s highly deferential standard of
review. Today, the majority nonetheless finds the presiding
district judge abused his discretion when he did not explicitly
rule on Alvin Gaskins’ “motion for a scheduling conference, at
which the Court would open limited discovery and to [sic] set
a date for an evidentiary hearing.” Joint Appendix (J.A.) 86
(capitalization removed). Because I find the majority’s position
inconsistent with our well-settled precedent, I respectfully
dissent.
I.
As the majority notes, see Maj. Op. 4, a petitioner must
allege and prove three requisite facts to satisfy § 2513: (1) as
relevant here “[h]is conviction has been reversed or set aside
on the ground that he is not guilty of the offense of which he
was convicted,” 28 U.S.C. § 2513(a)(1); (2) either “[h]e did not
commit any of the acts charged” or “his acts, deeds, or

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2
omissions in connection with such charge constituted no
offense against the United States, or any State, Territory or the
District of Columbia,” id. § 2513(a)(2); and (3) “he did not by
misconduct or neglect cause or bring about his own
prosecution,” id.
“In 2004, a grand jury returned a 100-count indictment
charging 21 defendants, including Gaskins, with being
members of a conspiracy to distribute narcotics that operated
between 1999 and September 2004, and that spanned Virginia,
the District of Columbia, and Maryland.” United States v.
Gaskins, 690 F.3d 569, 572 (D.C. Cir. 2012). Gaskins was
charged with: “(1) conspiring to distribute and possess with
intent to distribute heroin, cocaine, cocaine base, and PCP, in
violation of 21 U.S.C. § 846 (the ‘narcotics conspiracy’); (2)
conspiring to participate in a racketeer influenced corrupt
organization, in violation of 18 U.S.C. § 1962(d) (the ‘RICO
conspiracy’); and (3) four counts of using a communication
facility to facilitate a drug trafficking offense, in violation of
21 U.S.C. § 843(b) (the ‘telephone counts’).” Id. (footnote
omitted). On December 5, 2006, a jury found Gaskins guilty on
the narcotics conspiracy count, namely, conspiring to distribute
and possess with intent to distribute heroin. The jury acquitted
Gaskins on the RICO conspiracy and the telephone counts.
Gaskins timely appealed and, on April 30, 2012, we
reversed Gaskins’ conviction and remanded the case for entry
of a judgment of acquittal. On August 14, 2012, our opinion on
Gaskins’ direct appeal issued, finding that “no reasonable
juror” could have found “beyond a reasonable doubt, that
[Gaskins] knowingly entered into the conspiracy with the
specific intent to further the unlawful objective of drug
distribution.” Id. At the time of Gaskins’ 2012 release from
incarceration, “[h]e had served nearly eight years of a twenty-

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3
two year sentence.” United States v. Gaskins, No. 04-cr-379,
2019 WL 7758898, at *1 (D.D.C. Dec. 13, 2019).
On June 29, 2017, five years after his release, Gaskins
moved for a certificate of innocence (COI) in district court
pursuant to 28 U.S.C. § 2513. Gaskins’ memorandum in
support argued:
[T]he preponderance of the evidence
demonstrate[d] that (1) [his] conviction was
overturned for the reason that he was not guilty
of the crimes charged, (2) none of his actions
constituted offenses against the United States,
as he did not knowingly enter into the
conspiracy nor intentionally further its aims,
and (3) he did not bring about his own
prosecution through misconduct or neglect.
J.A. 7. For those reasons, Gaskins argued he was entitled to a
COI pursuant to § 2513(a). Notably, Gaskins requested neither
an evidentiary hearing nor discovery in his COI motion.
On October 5, 2017, after the district court granted its
request for an extension of time, the government filed its
opposition to Gaskins’ COI motion. The government argued
“[t]he direct and circumstantial evidence presented at trial
indicate strongly that [Gaskins] indeed knowingly participated
in this narcotics conspiracy” and therefore Gaskins “has not
and cannot meet his burden of showing by a preponderance of
the evidence that he is either actually innocent or that he did
not bring about his own prosecution through his misconduct or
neglect.” J.A. 27.
One day before it was due, Gaskins filed a consent motion
for an extension of time to file his reply from October 12, 2017
to November 12, 2017. On December 29, 2017, the district

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4
court granted Gaskins’ motion and ordered Gaskins to submit
his reply by November 12, 2017, nunc pro tunc. As of
December 29, 2017, Gaskins still had not lodged his reply,
despite requesting the extension only to November 12, 2017.
On January 23, 2018, Gaskins filed a consent motion to file an
untimely reply and attached his untimely reply to the consent
motion. The district court never ruled on Gaskins’ consent
motion to file an untimely reply.
In his untimely reply, Gaskins asserted, for the first time,
that he “will be submitting a motion requesting a hearing so he
may plead his case, and also requesting limited discovery.” J.A.
52. Despite stating he “intend[ed] to submit this motion soon,”
Gaskins did not file a motion until November 19, 2018, nearly
ten months later. J.A. 52 n.1. Gaskins’ November 2018 motion
was titled: “motion for a scheduling conference, at which the
court would open limited discovery and to [sic] set a date for
an evidentiary hearing.” J.A. 86 (capitalization removed). In
his motion for a scheduling conference, Gaskins asserted “that
he has met his burden for the reasons stated in his motion for a
certificate” but “if the court does not find this
sufficient, . . . Gaskins requires an evidentiary hearing where
[he] could testify, subject to cross examination, of the
circumstances leading up to his arrest.” J.A. 86.
On December 13, 2019, the district court denied Gaskins’
motion for a COI. The district court concluded that Gaskins
failed to establish by a preponderance of the evidence that he
met § 2513(a)’s second requirement—that he did not in fact
commit the acts charged. Gaskins, 2019 WL 7758898, at *2.
Specifically, it found “Gaskins’ emphasis on evidentiary gaps
d[id] not negate the inferences that may be drawn from the
evidence against him.” Id. at *3. In this respect, the district
court concluded:

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5
Gaskins supported the conspiracy for years. He
arranged flights for co-conspirators when they
would travel to negotiate drug deals. He
purchased cell phones under his own name and
address, but quickly relinquished them to co-
conspirators who would use them to coordinate
the conspiracy’s next steps. He leased an
apartment under his own name, but likewise
turned the keys over to co-conspirators who
used the apartment as a “stash house.”
Id. The district court rejected Gaskins’ innocent explanation of
the flights, phones and apartment, namely, that Gaskins
believed he was doing work for a legitimate business, Dream
Team Investigations (DTI). The district court found: “DTI was
a front for the drug ring, and hardly pretended to be an honest
enterprise (let alone one thriving enough to justify cross-
country flights and an extra apartment). Most likely, someone
closely involved in DTI’s operations would have known this.”
Id. Although the district court acknowledged that Gaskins’
theory of innocence was “possible,” “possible will not win him
the day.” Id. at *4. The district court concluded that “the more
likely explanation [is] that Gaskins knew of the conspiracy and
participated in it anyways.” Id.
The district court also found that Gaskins failed to meet
§ 2513(a)’s third requirement because Gaskins caused or
brought about his own prosecution by neglect.
In the unlikely event that Gaskins is actually
innocent, he still fails the final clause of the
statute. Each red flag the Court identifie[d]
above should have been readily apparent to
Gaskins over the years of his employment—this
is not a situation where hindsight provides extra

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6
clarity. Under the statute, negligence trumps
innocence, and even under his own theory
Gaskins demonstrated extreme negligence by
failing to detect what was right under his nose.
He provided direct logistical support for the
conspiracy, and either knew about it or should
have known.
Id.
II.
A.
Gaskins and the government agree that the abuse of
discretion standard applies to the district court’s implicit denial
of Gaskins’ motion for a scheduling conference. See Maj. Op.
20. The majority nonetheless vacates the district court’s denial
of Gaskins’ COI motion and remands the case because of the
“absence of explanation for the district court’s decision not to
allow any discovery or evidentiary hearing on the distinct
question of innocence.” Id. at 24. I disagree because, in my
opinion, the district court’s denial was neither “completely
capricious” nor “without rational basis.” Rigsbee, 204 F.2d at
72.
It is of no moment that the district court did not explicitly
deny Gaskins’ motion for a scheduling conference. We have
previously affirmed a district court’s implicit denial of a party’s
procedural motion. See Gaujacq v. EDF, Inc., 601 F.3d 565,
580 (D.C. Cir. 2010) (“We think it is plain that the [d]istrict
[c]ourt meant to deny appellant’s [procedural] motions when it
granted appellees’ motions for summary judgment and
dismissed the case. The [d]istrict [c]ourt did not abuse its
discretion in [implicitly] denying appellant’s motions.”).
Gaujacq involved, inter alia, a motion to compel discovery and

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7
we emphasized that we are “‘especially reluctant to interfere
with district court decisions regarding their own day-to-day
operations,’ particularly the [d]istrict [c]ourt’s ‘broad
discretion in structuring discovery.’” Id. (quoting Hussain v.
Nicholson, 435 F.3d 359, 363 (D.C. Cir. 2006)). The same
conclusion follows here. It is plain that the district court by
necessary implication intended to deny Gaskins’ motion for a
scheduling conference when it denied his COI motion.
Moreover, “we do not find an abuse of discretion based on
whether we, if standing in the [d]istrict [c]ourt’s shoes, would
have granted the motion.” Jeffries v. Barr, 965 F.3d 843, 855
(D.C. Cir. 2020). 1 Simply put, the abuse of discretion standard
is “a rule of appellate restraint, a principle faithful to the reality
that appellate tribunals cannot hope to have the entire range of
considerations as readily at hand as the court charged with the
case in the first instance.” Founding Church of Scientology of
Wash., D.C., Inc. v. Webster, 802 F.2d 1448, 1457 (D.C. Cir.
1986). Our precedent demands even greater deference in the
§ 2513 context than in the run-of-the-mill abuse of discretion
case. See Rigsbee, 204 F.2d at 72 (district court’s COI decision
can be disturbed only “in a case in which the refusal to certify
innocence was completely capricious and without rational
basis.”).2 I believe the majority fundamentally misapplies the
1 See also United States v. Mathis-Gardner, 783 F.3d 1286,
1288 (D.C. Cir. 2015) (“Our review for abuse of discretion does not
permit us to substitute our judgment for that of the trial court, so we
cannot decide the issue by determining whether we would have
reached the same conclusion.” (internal quotations and citation
omitted)); Gomez v. Chody, 867 F.2d 395, 405 (7th Cir. 1989) (“To
find an abuse of discretion, we must conclude that no reasonable man
could agree with the district court.”) (quoting Mumford v. Bowen,
814 F.2d 328, 329 (7th Cir. 1986)).
2 The Fourth and Eighth Circuits have since adopted Rigsbee’s
highly deferential standard of review. See United States v. Graham,

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Rigsbee standard—the district court did not abuse its discretion
in denying by necessary implication Gaskins’ motion for a
scheduling conference.
Granted, we have stated that “[w]hen we review a district
court’s decision for an abuse of discretion, it is imperative that
a district court articulate its reasons.” Maj. Op. 24 (quoting
McCready v. Nicholson, 465 F.3d 1, 15 (D.C. Cir. 2006)
(formatting modified)). As noted, however, we have also
affirmed a district court’s implicit denial of a discovery motion.
See Gaujacq, 601 F.3d at 580. Accordingly, I believe our
precedent is uncertain on this general issue. Especially in the
COI context, I believe it inappropriate to conclude the district
court abused its discretion in implicitly denying Gaskins’
motion for a scheduling conference because “[t]he certificate-
of-innocence statutes do not establish specific procedures for
deciding a petition.” Abu-Shawish v. United States, 898 F.3d
726, 737 (7th Cir. 2018); see also United States v. Grubbs, 773
F.3d 726, 732 (6th Cir. 2014) (“statute is entirely silent as to
what procedure a court should follow in determining whether
608 F.3d 164, 172 (4th Cir. 2010) (“When a district 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.’”
(quoting Rigsbee, 204 F.2d at 72)); United States v. Racing Servs.,
Inc., 580 F.3d 710, 713 (8th Cir. 2009) (“[O]ur review for abuse of
discretion is especially deferential. As the D.C. Circuit
explained . . . : ‘Where, as here, [the trial judge] has exercised that
discretion, 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.’” (quoting Rigsbee, 204 F.2d at 72) (alteration in original)).

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or not a petitioner is entitled to a certificate” (internal
quotations omitted)). Indeed, the Eighth Circuit has found that
a district court’s denial of a request for an evidentiary hearing
was not an abuse of discretion. See Holmes v. United States,
898 F.3d 785, 790–91 (8th Cir. 2018) (“district court did not
abuse its discretion when it chose to rely on the trial record and
other relevant facts presented by affidavits rather than
conducting an evidentiary hearing”).
Although the majority finds a pair of Seventh Circuit
decisions instructive, see Maj. Op. 20–21, those decisions do
not bear on the issue presented here. First, in Abu-Shawish, the
Seventh Circuit vacated and remanded after the district court
denied a petitioner’s pro se COI petition without requiring a
government response or affording the petitioner an opportunity
to replead. See Abu-Shawish, 898 F.3d at 737–38. In contrast,
Gaskins, by counsel, filed a COI motion, the district court
ordered the government to respond to Gaskins’ COI motion
and Gaskins was provided the opportunity to reply—including
tardily—to the government’s opposition. Second, in Pulungan
v. United States, the Seventh Circuit reversed and remanded a
district court’s issuance of a COI because the “district court
treated [the earlier appellate] decision that [Pulungan] is
entitled to an acquittal as equivalent to a decision that he did
not commit a crime.” 722 F.3d 983, 985 (7th Cir. 2013).3 Here,
we all agree that “the prior appellate decision [that overturned
Gaskins’ conviction] does not by itself amount to a finding of
innocence.” Maj. Op. 17. The majority, however, believes
Pulungan supports the need for an evidentiary hearing in
certain COI cases. See id. at 21. I find unconvincing the
3 In the earlier appellate decision, the Seventh Circuit “held that
it had not been proved, beyond a reasonable doubt, that Pulungan
committed the crime. . . . A conclusion that the prosecutor did not
prove a charge beyond a reasonable doubt differs from a conclusion
that the defendant is innocent in fact.” Id.

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majority’s reliance on out-of-circuit dicta regarding the need,
if any, for an evidentiary hearing—especially given the highly
deferential abuse of discretion standard applicable to our
review here. See Jama v. Immigr. & Customs Enf’t, 543 U.S.
335, 351 n.12 (2005) (“Dictum settles nothing, even in the
court that utters it.”).
Although Gaskins did not testify during the three-month
trial—as is his absolute right guaranteed by the Fifth
Amendment to the U.S. Constitution—the burden of proof has
now switched to him in this proceeding. His reliance on others’
affidavits only highlights his failure to tell his own story. The
district judge should not be required to indulge Gaskins’
preference for a step-by-step discovery process regarding his
testimony when he was perfectly able to supply affidavits from
others.4
In sum, because it is pellucid that the district court
intended to deny Gaskins’ motion for a scheduling conference,
that the district court is afforded broad discretion on discovery
issues and that § 2513 does not set forth any procedural
requirements for COI proceedings, I believe we are constrained
to affirm the district court’s implicit denial under Rigsbee’s
uniquely deferential standard of review.5
4 Indeed, Gaskins himself believed he “ha[d] met his burden”
by submitting his motion for a COI with its attachments, J.A. 86,
manifesting—at least to me—an inexplicable reluctance to
“proclaim” his innocence on the record.
5 The majority asserts that “in Diamen, we read Rigsbee to
require review under the familiar abuse-of-discretion standard, not a
distinct standard judicially minted for section 2513 claims.” Maj. Op.
25. Again respectfully, the majority misreads Diamen. Diamen
applied de novo review to the “purely legal issue” decided in that
case. Diamen, 604 F.3d at 655. Accordingly, assuming arguendo the

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B.
The district court also determined that Gaskins failed to
satisfy § 2513(a)’s third requirement—“he did not by
misconduct or neglect cause or bring about his own
prosecution.” 28 U.S.C. § 2513(a)(2); see Gaskins, 2019 WL
7758898, at *4. The majority concludes it need not reach the
third requirement. See Maj. Op. 19. I disagree.
Much of the majority’s reasoning in support of its
procedural remand focuses on the potential importance of
Gaskins’ potential future testimony regarding his knowledge
of the narcotics conspiracy.6 The district court, however, also
found that “even under his own theory Gaskins demonstrated
extreme negligence by failing to detect what was right under
his nose. He provided direct logistical support for the
conspiracy, and either knew about it or should have known.”
Gaskins, 2019 WL 7758898, at *4 (emphases added). The
district court thus provided an independent basis for denying
Gaskins’ COI motion, which judgment was neither
“completely capricious” nor “without rational basis.” Rigsbee,
204 F.2d at 72.
majority’s reading of Diamen is correct, Diamen’s fleeting
description of the Rigsbee standard of review is dicta and does not
dilute Rigsbee.
6 See, e.g., Maj. Op. at 2–3 (“The key issue bearing on whether
Gaskins is entitled to the certificate concerns his state of mind, that
is, whether he agreed to work with co-conspirators with the specific
intent to distribute drugs. . . . In the circumstances, the district
court’s sub silentio denial of Gaskins’ unopposed request for an
opportunity to augment the record was error.”); id. at 24 (“Gaskins’
requests aimed at developing the key factual issue of his own state
of mind.”).

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Although we have not previously addressed § 2513(a)(2)’s
“misconduct or neglect” requirement, I believe the Fourth
Circuit’s decision in United States v. Graham, 608 F.3d 164
(4th Cir. 2010), provides the proper approach as opposed to the
Seventh Circuit’s decision in Betts v. United States, 10 F.3d
1278 (7th Cir. 1993).7 In Betts, the Seventh Circuit held that
“before the petitioner can be said to have caused or brought
about his prosecution within the meaning of section 2513(a)(2),
he must have acted or failed to act in such a way as to mislead
the authorities into thinking he had committed an offense.” 10
F.3d at 1285. In Graham, the Fourth Circuit rejected the
Seventh Circuit’s “narrow reading of subsection (a)(2) because
it effectively reads ‘neglect’ out of the statute.” 608 F.3d at 174.
Instead, the Fourth Circuit found “the statute’s ‘misconduct or
neglect’ language on its face captures noncriminal conduct”;
accordingly it requires “‘courts to assess the virtue of a
petitioner’s behavior even when it does not amount to a
criminal offense.’” Id. (quoting Betts, 10 F.3d at 1285).
I would reject the Seventh Circuit’s interpretation of the
“misconduct or neglect” requirement and adopt the Fourth
Circuit’s for the reasons provided in Graham. 8 Specifically, we
“must strive to interpret a statute to give meaning to every
clause and word.” Donnelly v. FAA, 411 F.3d 267, 271 (D.C.
Cir. 2005). Every example noted in Betts, however, constitutes
“misconduct” rather than “neglect.” See Betts, 10 F.3d at 1285
7 As the majority notes, see Maj. Op. 19, the Sixth Circuit
endorsed the Seventh Circuit’s Betts approach in United States v.
Grubbs, 773 F.3d 726, 732 n.4 (6th Cir. 2014). The Sixth Circuit,
however, provided no explanation for its endorsement of the Betts
approach. See id. No other circuit has addressed § 2513(a)(2)’s
“misconduct or neglect” requirement in a published opinion.
8 At oral argument, the government conceded that its argument
would fail under the Betts approach but would prevail under the
Graham approach. See Oral Arg. Tr. 33:15–34:10.

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(“The clearest example would be the defendant who either
falsely confesses to a crime or intentionally withholds
exculpatory evidence—in common parlance, one who ‘takes
the fall’ for someone else.”); see also id. (quoting “[e]xamples
of the misconduct referred to” in United States v. Keegan, 71
F. Supp. 623, 638 (S.D.N.Y. 1947) (emphasis added)). To
avoid reading “neglect” out of the statute, a court must consider
whether the petitioner’s neglectful conduct—criminal or
noncriminal—caused or brought about his prosecution.
Applying this interpretation of § 2513(a)(2)’s “misconduct
or neglect” requirement, I believe the district court’s
determination that Gaskins “should have known” that he
“provided direct logistical support for the conspiracy,”
Gaskins, 2019 WL 7758898, at *4, was neither “completely
capricious” nor “without rational basis,” Rigsbee, 204 F.2d at
72. The district court found the government’s circumstantial
evidence—the apartment lease agreement in Gaskins’ name
that was used as the narcotics conspiracy’s “stash house,” the
wiretap evidence and airline records showing that Gaskins
arranged flights for a conspirator working as a cash courier,
Gaskins’ subscription to a cell phone that a conspirator used to
conduct drug business and significant questions about whether
DTI conducted legitimate business—demonstrated Gaskins’
“extreme negligence” and that his neglectful conduct led to his
prosecution. Gaskins, 2019 WL 7758898, at *4. “[R]eview for
abuse of discretion does not permit us to substitute our
judgment for that of the trial court” if there are two permissible
inferences from the evidence. See Mathis-Gardner, 783 F.3d at
1288 (internal quotations omitted); cf. Anderson v. City of
Bessemer, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous. This is so even
when the district court’s findings do not rest on credibility
determinations, but are based instead on physical or

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documentary evidence or inferences from other facts.”
(citations omitted)). Accordingly, applying Rigsbee’s discrete
abuse of discretion standard of review, I believe stare decisis
requires that we affirm the district court’s denial of Gaskins’
COI motion.
Because I believe the majority opinion contravenes our
standard of review, I respectfully dissent. On remand, whether
the district court ultimately grants or denies Gaskins’ motion
for a scheduling conference, its conclusion will likely remain
the same—Gaskins “should have known” that he “provided
direct logistical support for the conspiracy.” Gaskins, 2019 WL
7758898, at *4.

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