UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GUNTHER GLAUB, Defendant - Appellant.
No. 17-1182
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
December 18, 2018
MURPHY, Circuit Judge.
PUBLISH. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 1:16-CR-00184-RM-1)
Laura B. Wolf (Siddhartha H. Rathod with her on the briefs), Rathod | Mohamedbhai LLC, Denver, Colorado, for Appellant.
James C. Murphy, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colorado, for Appellee.
Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.
I. Introduction
Defendant-Appellant, Gunther Glaub, was convicted of violating the criminal provisions of the False Claims Act.
We have jurisdiction pursuant to
II. Factual Background
Glaub was charged by indictment with five counts of violating the criminal provisions of the False Claims Act (“FCA“),
Glaub filed a pre-trial motion seeking to have the FCA charges dismissed, asserting he had a first amendment right to freedom of speech and to petition the government for redress of grievances. He claimed his speech involved an expression of “his genuine view that the federal government is or should be liable for its citizens’ private debts.” Accordingly, Glaub‘s argument continued, his act of submitting the bills and invoices was speech protected by the First Amendment. Glaub also argued that
In its written response to Glaub‘s motion, the government first noted that the question of whether the evidence was sufficient
The district court held a hearing on the motion. At the hearing, Glaub argued the indictment should be dismissed because his conduct was not unlawful for two reasons. First, he argued the documents he mailed to the USDA were not claims, as that term is used in
Glaub also presented his first amendment argument at the hearing. He asserted the documents he sent to the USDA were merely the expression of his viewpoint on the government‘s obligation to pay the private debts of its citizens and, as such, his conduct was speech protected by the First Amendment. Glaub also argued
The matter eventually proceeded to trial. The government called five witnesses, each of whom was cross-examined by Glaub. At the close of the prosecution‘s case, Glaub moved for judgment of acquittal pursuant to
The jury found Glaub guilty of five counts of submitting false claims to the government. Two weeks later, Glaub filed a written Rule 29(c) motion for judgment of acquittal. He, again, argued the prosecution presented no evidence the claims he submitted were false, fictitious, or fraudulent. Glaub also argued the evidence was insufficient to meet the mens rea requirements
III. Discussion
A. Sufficiency of the Evidence
Glaub raises numerous challenges to the district court‘s rulings. Specifically, he argues the district court erred by refusing to dismiss the charges against him, erred by failing to acquit him, and erred by “expanding the reaches of the False Claims Act.” These issues are all based on Glaub‘s assertion that he has a first amendment right to petition the government for the payment of his private debts. The Supreme Court, however, has held that the submission of a false claim to the government is not protected by the First Amendment. Alvarez, 567 U.S. at 723 (“Where false claims are made to effect a fraud or secure moneys or other valuable considerations . . . it is well established that the Government may restrict speech without affronting the First Amendment.“); see also United States v. Stevens, 559 U.S. 460, 468 (2010) (listing the following categories of speech as those that are not protected by the First Amendment: obscenity, defamation, fraud, incitement, and speech used as an integral part of conduct in violation of a valid criminal statute). This court has likewise held that “the First Amendment provides no protection for knowingly fraudulent or frivolous claims.” United States v. Ambort, 405 F.3d 1109, 1117 (10th Cir. 2005). In other words, “speech is not protected by the First Amendment when it is the very vehicle of the crime itself.” United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970). Accordingly, the First Amendment does not protect Glaub‘s speech if, by sending his private bills to the USDA, he knowingly filed a false claim in violation of
“A claim is false or fictitious within the meaning of
Although Glaub‘s appellate arguments focus primarily on first amendment legal principles, the first amendment issues arising in this FCA criminal prosecution hinge on the factual question of intent. Because that question was properly submitted to the jury, Glaub is not entitled to reversal of his convictions under any of the numerous first amendment theories he raises unless he first shows the government‘s evidence on the intent element was insufficient. See Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 n.9 (2003) (holding the goverment bears “the burden of proving that the speech it seeks to prohibit is unprotected“). Glaub‘s argument on this point begins with a single sentence in his reply brief that reads: “The government makes no showing . . . of how [his] speech could be considered ‘fraudulent.‘” Appellant Reply Br. at 2. His subsequent argument, like this sentence, is not accompanied by any citation to the record or any discussion of the evidence
In a more focused argument on sufficiency, Glaub asserts the prosecution failed to show his claims were false, fictitious, or fraudulent because it did not present evidence that he altered any of the information on the documents he submitted to the USDA. This argument is not persuasive. The statutory language is clear on its face—it is the claim that must be false, fictitious, or fraudulent.
Here, the prosecution‘s evidence showed that Glaub sent multiple bills and invoices to the specific address of a government agency; the bills and invoices were addressed to a federal employee with authority to pay claims and disburse funds (see
permit a reasonable jury to find that (1) by submitting the bills and invoices to the USDA, Glaub was making a false, fictitious, or fraudulent statement that the government had an obligation to pay them and (2) Glaub knew the government had no obligation to pay the bills. See United States v. Abbott Washroom Sys., Inc., 49 F.3d 619, 624 (10th Cir. 1995) (stating the essential elements of a
Glaub also argues the prosecution was required to prove an actual risk of loss to the government. Glaub does not state whether he raised this issue before the district court or whether he asked the court to instruct the jury on this additional
In short, Glaub makes no reasoned argument as to how the evidence was insufficient to support the jury‘s finding that he knowingly submitted a request to the government seeking payments to which he knew he was not entitled.
Accordingly, Glaub is not entitled to relief under any of the various first amendment theories he presents.
B. Constitutional Challenges
Glaub also makes two constitutional challenges to his conviction. He first asserts he was prosecuted because of his political associations or viewpoints. Glaub does not indicate in his opening brief whether or when this issue was raised before the district court and, if so, how the district court resolved it. This court has searched the record and determined Glaub did not expressly seek to dismiss the indictment on the basis of selective prosecution, making no mention of
Although Glaub does not set it out in his opening brief, the standard applicable to a selective prosecution claim is “a demanding one.” United States v. Armstrong, 517 U.S. 456, 463 (1996). “The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.” Id. at 465 (quotation omitted). Because Glaub does not cite the relevant standard, he makes no attempt to show how he meets it. Most obvious is the lack of any argument on discriminatory effect. Accordingly, the issue is waived. Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998) (“[A]rguments not set forth fully in the opening brief are waived.“).
Glaub further argues
C. Jury Instructions
Glaub raises several challenges to the jury instructions given by the district court. A district court‘s refusal to give a jury instruction is reviewed for abuse of discretion. United States v. Gonzales, 456 F.3d 1178, 1181 (10th Cir. 2006). “In assessing whether the district court properly exercised its discretion, we review the instructions de novo to determine whether, taken as a whole, they accurately
state the governing law.” Id. “A defendant is entitled
1. First Amendment Theory
Glaub first argues the district court abused its discretion by refusing to instruct the jury on his first amendment theory of defense. The instructions Glaub proposed would have required the jury to consider whether Glaub “was engaging in lawful speech and association, including the lawful petition of the government for redress, protected by the First and Fourteenth Amendments to the United States Constitution.” The district court declined to give the instruction on the grounds it was argumentative and not supported by the evidence. The court further ruled it was “not up to the jury to decide whether this conduct is protected by the First Amendment. Ultimately, what happens is, [Glaub] is guilty or not guilty. If it‘s a false claim, it‘s not protected by the First Amendment.” The district court, however, did instruct the jury that: “It is the theory of the defense that Gunther Glaub‘s political associations and beliefs have colored the perceptions of his actions. Mr. Glaub maintains that at no time did he intend to defraud the United States and that he did not ever submit a false, fictitious or fraudulent claim against the government.”
There was no abuse of discretion in refusing to give Glaub‘s instruction because the question of whether Glaub‘s conduct is protected by the First Amendment is one of law and not one for the jury. Glaub misreads United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999), for the proposition that the question of whether speech falls within the protections of the First Amendment is a factual one for the jury. In Viefhaus, 168 F.3d at 395-397, this court held that the factual question of whether the defendant‘s statement was a true bomb threat was one for the jury. Because the jury found it was a true threat, it was not protected by the First Amendment. Id. at 395, 396 (“The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability.“). The same process was followed by the district court in this matter. The factual question of whether the documents Glaub sent to the USDA were false claims was submitted to the jury. Because the jury found they were false claims, Glaub‘s speech was not protected by the First Amendment. Thus, the instruction given by the district court, not the one requested by Glaub, was the correct statement of the law.5
Related to his jury-instruction challenge is Glaub‘s complaint, made during oral argument in this matter, that he was not permitted to present a first amendment defense but was limited to an “intent based” defense. Because, as the district court correctly recognized, the first amendment issue hinged on Glaub‘s state of mind, there are no relevant differences between these two defenses. Glaub does not direct this court to any portion of the trial transcript supporting his allegations of thwarted attempts to elicit testimony relevant to his first amendment defense.6
During opening arguments, the first statement made by Glaub‘s counsel to the jury was as follows: “False, fictitious, fraudulent. To be criminal, a claim must be false, fictitious or fraudulent, that is because the right to petition the government is implicit and the very idea of our republican form of government.” Counsel then proceeded to tell the jury that Glaub was targeted because of his unpopular beliefs even though those beliefs are “protected by the First Amendment of the United States Constitution.” After describing the conduct charged in the indictment, counsel then stated: “Yet, you have a constitutional
right to petition the government. You have a right to send your personal debts to the government and ask the government to pay them.”
Glaub did not testify and he did not call any witnesses. Consistent with his opening statement, however, Glaub extensively cross-examined Special Agent Alex Zappe, the FBI agent who conducted the investigation. Glaub questioned Agent Zappe on the beliefs of the sovereign citizen movement and whether Glaub was a member of the movement even though these matters were not discussed by Agent Zappe during direct examination.7 Glaub‘s counsel represented to the district court that this line of cross-examination was within the scope of direct because it was relevant to Glaub‘s intent. The record, thus, shows the district court was extremely permissive in allowing Glaub to challenge the government‘s evidence of intent.
2. Definition of Claim
Glaub next argues the district court erred when it refused to give the instruction he sought on the definition of “claim.” His proposed instruction defined a claim as “a demand for money or property to which an individual asserts a right against the Government based upon the Government‘s own liability to the individual.” This instruction was derived from the Supreme Court‘s
opinion in United States v. Cohn, 270 U.S. 339 (1926). In Cohn the Court stated: “the provision [of the False Claims Act] relating to the payment or approval of a ‘claim upon or against’ the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government‘s own liability to the claimant.” Id. at 345-46. The district court ruled the statement from Cohn was not actually a definition of the term “claim” and that the issue addressed in Cohn had “nothing to do with” the issues in Glaub‘s case. Concluding the Cohn language was confusing, the district court gave the following instruction instead: “A ‘claim’ is a demand for money, property, credit or reimbursement.”
Glaub argues the instruction given was erroneous for two reasons. First, it expanded the definition of a claim by eliminating the requirement that the claim must be made “upon or against the United States.” He argues the Cohn Court expressly considered and rejected the notion that “claim” (in the context of a criminal prosecution under the False Claims Act) simply means “a demand of some matter as of right, made by one person upon
This law makes it a crime to knowingly make a false, fictitious or fraudulent claim against any department or agency of the United States. The Department of Agriculture is a department or agency of the United States within the meaning of this law.
To find the defendant guilty of a violation of this statute, as charged in each count of the indictment, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: The defendant knowingly made and presented to the Department of Agriculture a false, fictitious or fraudulent claim against the United States, . . .
. . .
It is sufficient if the defendant submits the claim to a third party knowing that the third party will submit the claim or seek reimbursement from the United States or a department or agency thereof.
Read as a whole, the instructions clearly required the jury to find that the claims were made upon or against the United States.
Glaub further argues the instruction was erroneous because it permitted the jury to find him guilty without finding that the claims were premised on the government‘s liability to him. See Cohn, 270 U.S. at 345. According to Glaub, by stating that a claim must be “based upon the Government‘s own liability to the claimant,” Cohn requires that false claims, in the context of a criminal prosecution, must involve a request for a disbursement for work done, reimbursement for purchases made on behalf of the government, or payments based on the government‘s actual duty to make such payments. See id. at 345.
That situation, he argues, is not present here because he submitted bills for private expenses, not requests for disbursements from government programs or reimbursements for services he provided to the government.
The Supreme Court rejected Glaub‘s reading of Cohn in United States v. Neifert-White Co., 390 U.S. 228 (1968). There, the respondent supplied false information to support its application for a loan from a federal agency. Id. at 229. Respondent took the “position that the term ‘claims’ in the [FCA] must be read in its narrow sense to include only a demand based upon the Government‘s liability to the claimant.” Id. at 230. The Court disagreed, distinguishing Cohn as follows:
Cohn involved a criminal proceeding under an earlier version of the present False Claims Act. It concerned a fraudulent application to obtain the release of merchandise which did not belong to the United States and which was being held by the customs authorities as bailee only. The case did not involve an attempt, by fraud, to cause the Government to part with its money or property, either in discharge of an obligation or in response to an application for discretionary action. The language in the Court‘s opinion upon which respondent relies cannot be taken as a decision upon a point which the facts of the case did not present.
Id. at 230-31 (footnotes omitted). Although Neifert-White did not involve a criminal prosecution, the Court‘s explanation of why Cohn does not supply a
Glaub raises two additional challenges to the jury instructions. He argues his convictions must be set aside if the claim instruction is upheld because he was not sufficiently on notice that his conduct was criminal. His assertion that the Supreme Court‘s decision in Cohn “was the only fair warning regarding what lines may not be crossed,” is unpersuasive in light of the Court‘s subsequent holding in Neifert-White. He also relatedly argues the district court‘s claim instruction “expanded the reach” of the FCA to criminalize constitutionally protected speech. This argument, though cast as a challenge to the jury instructions, ignores the intent element of the crime and is no different than Glaub‘s unsuccessful argument that his speech is protected by the First Amendment.
D. Motion for Continuance
Prior to jury selection, Glaub moved for a continuance of the trial, arguing his defense was based on Cohn and the district court‘s refusal to give the claim instruction he requested meant his counsel could not provide an adequate defense. A district court‘s denial of a continuance motion is reviewed for abuse of discretion and the court‘s ruling will be reversed only if it was “arbitrary or unreasonable and materially prejudiced the defendant.” United States v. McKneely, 69 F.3d 1067, 1076-77 (10th Cir. 1995) (quotation and alteration omitted). Based on Glaub‘s erroneous assertion the district court‘s ruling should be reviewed de novo, he appears to be presenting an ineffective assistance of counsel claim. See United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997) (involving a federal post-conviction motion filed pursuant to
IV. Conclusion
Glaub‘s convictions are affirmed.