FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. NO. 1:16-CR-00184-RM-1)
B. Wolf (Siddhartha H. Rathod with her on the briefs), Rathod
Mohamedbhai LLC, Denver, Colorado, for Appellant.
C. Murphy, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Denver, Colorado, for Appellee.
TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.
MURPHY, CIRCUIT JUDGE.
Gunther Glaub, was convicted of violating the criminal
provisions of the False Claims Act. 18 U.S.C. § 287. He
challenges those convictions, arguing his act of submitting
personal bills and invoices to the United States for payment
was protected by the First Amendment. He also challenges the
jury instructions given in his trial on the basis that they
failed to set forth the correct definition of the term
jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm Glaub's convictions.
was charged by indictment with five counts of violating the
criminal provisions of the False Claims Act
("FCA"), 18 U.S.C. § 287. The indictment
alleged Glaub sent personal bills and invoices to the
Director of the Finance Office, United States Department of
Agriculture ("USDA") seeking payment, despite
knowing the debts were owed by him. The invoices related to
purchases of expensive vehicles; the bills related to the
payment of a student loan debt owed by Glaub to the United
States Department of Education and a debt owed by Glaub to
Bellco Credit Union. The documents were all accompanied by a
note from Glaub which stated: "Thank you for paying this
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 18 U.S.C. § 287
is unconstitutional as applied to his activities. In the
alternative, he argued there was insufficient evidence to
support the charges.
written response to Glaub's motion, the government first
noted that the question of whether the evidence was
sufficient to secure a conviction was one for the jury and
could not be resolved in a motion to dismiss an indictment.
As to Glaub's constitutional arguments, the government
asserted the First Amendment does not protect the submission
of false claims to the government. See United States v.
Alvarez, 567 U.S. 709, 723 (2012) ("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."). The goverment also argued that
§ 287 is not unconstitutionally overbroad because it
criminalizes only the submission of certain claims, i.e.,
those that are "false, fictitious, or fraudulent."
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 § 287, because there is no actual
program or policy pursuant to which the United States
government pays a citizen's personal debts. Glaub also
argued the indictment was legally insufficient because the
documents he submitted to the USDA were not false,
fictitious, or fraudulent on their face. The district court
concluded these questions could not be decided until trial,
after a full evidentiary record was developed.
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 § 287 is unconstitutionally
overbroad if it reaches his conduct. The district court
rejected these arguments, concluding that if Glaub intended
to make a false claim against the United States by sending
his bills to the USDA, his conduct was not protected by the
First Amendment. See Alvarez, 567 U.S. at 723.
Because the intent element involved a jury finding, the
question of whether Glaub's speech was constitutionally
protected could not be determined as a matter of law before
trial. See Fed. R. Crim. P. 12(b)(1) and
12(b)(3)(B)(v) (providing that a pre-trial motion alleging a
defect in the indictment can be made only if the issue
presented "can be determined without a trial on the
merits"). Accordingly, the district court refused to
dismiss the charges. See id. As to the issue of
whether the statute was overbroad, the court concluded there
was no legal support for Glaub's position.
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 Fed. R. Crim. P. 29. He
challenged the sufficiency of the evidence, arguing,
inter alia, there was no testimony showing the
claims he submitted were false, fictitious, or fraudulent.
The district court denied the motion.
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 for the crimes charged. The
district court denied this motion.
Sufficiency of the Evidence
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 § 287.
claim is false or fictitious within the meaning of § 287
if untrue when made, and then known to be untrue by the
person making it or causing it to be made. A claim is
fraudulent if known to be untrue, and made or caused to be
made with the intent to deceive the Government agency to whom
submitted." United States v. Irwin, 654 F.2d
671, 683 n.15 (10th Cir. 1981) (quotations omitted),
overruled on other grounds by United States v.
Daily, 921 F.2d 994, 1005 (10th Cir. 1990). Thus, as the
district court correctly concluded, the first amendment issue
could not be resolved before trial because it involved
factual questions relating to Glaub's state of mind. If