910 F.3d 1334
10th Cir.2018Background
- Defendant Gunther Glaub mailed personal bills and vehicle buyer’s orders to the USDA’s Finance Office addressed to an official authorized to pay claims, each accompanied by notes like “Thank you for paying this debt.”
- Indicted on five counts under the criminal False Claims Act, 18 U.S.C. § 287; one related mailing count was dismissed by the government before trial.
- Glaub moved pretrial to dismiss, arguing his submissions were protected First Amendment speech/petitioning and that the documents were not “claims” under § 287; the district court denied dismissal, citing factual issues of intent for the jury.
- At trial the government presented testimony and documentary evidence (including wiring instructions and buyer’s orders for expensive vehicles); Glaub cross-examined witnesses but did not call his own.
- The jury convicted Glaub on five counts; post-trial Rule 29 motions and other challenges were denied, and Glaub appealed arguing First Amendment protection, insufficiency of evidence, selective prosecution, improper jury instructions (definition of “claim”), and denial of a continuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment protection | Government: submission of false claims is not protected speech where used to effect fraud. | Glaub: mailing bills was petitioning/speech protected by First Amendment; statute unconstitutional as applied. | Court: Speech that knowingly constitutes a false claim is unprotected; intent was a factual issue for jury, so convictions stand. |
| Sufficiency of evidence (mens rea/falsity) | Government: evidence (addressing, addressee authorized to pay, notes, wiring instructions) permits jury to infer knowing false claims. | Glaub: documents were unaltered and thus not shown to be false; no proof of intent or actual risk of loss. | Court: Statute requires falsity/intent, not alteration or actual loss; evidence sufficient to support guilty verdicts. |
| Definition of “claim” / jury instruction | Government: FCA reaches any fraudulent attempt to cause the Government to pay; broader reading consistent with precedent. | Glaub: "claim" requires a right against the government based on government’s own liability (Cohn); instruction was overbroad and gave inadequate notice. | Court: Jury instructions, read together, correctly required presentation to a government agency and are consistent with Neifert-White rejecting a narrow Cohn reading. |
| Selective prosecution / continuance | — | Glaub: prosecuted for political beliefs; denial of continuance prejudiced defense preparations. | Court: Claim waived/lacking proof of discriminatory effect; continuance denial not an abuse—no identified prejudice or witnesses; convictions affirmed. |
Key Cases Cited
- United States v. Alvarez, 567 U.S. 709 (false claims made to effect fraud are not protected speech)
- United States v. Stevens, 559 U.S. 460 (categories of unprotected speech include fraud and speech integral to criminal conduct)
- United States v. Ambort, 405 F.3d 1109 (10th Cir.) (First Amendment does not protect knowingly fraudulent or frivolous claims)
- United States v. Varani, 435 F.2d 758 (6th Cir.) (speech is not protected when it is the vehicle of the crime)
- United States v. Irwin, 654 F.2d 671 (10th Cir.) (falsity and intent elements for § 287 explained)
- United States v. Daily, 921 F.2d 994 (10th Cir.) (later Tenth Circuit discussion of related issues)
- United States v. Abbott Washroom Sys., Inc., 49 F.3d 619 (10th Cir.) (elements of a § 287 claim)
- United States v. Armstrong, 517 U.S. 456 (standard for selective prosecution claims)
- United States v. Viefhaus, 168 F.3d 392 (10th Cir.) (distinguishing factual issues of truth that go to jury from legal First Amendment question)
- United States v. Cohn, 270 U.S. 339 (1926) (earlier interpretation of ‘‘claim’’ in FCA context)
- United States v. Neifert-White Co., 390 U.S. 228 (1968) (FCA reaches fraudulent attempts to cause the Government to pay; rejects overly narrow Cohn reading)