Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Glaub

United States Court of Appeals, Tenth Circuit

December 18, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GUNTHER GLAUB, Defendant-Appellant.

          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.

          MURPHY, CIRCUIT JUDGE.

         I. Introduction

         Defendant-Appellant, 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 "claim."

         We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Glaub's convictions.

         II. Factual Background

         Glaub was charged by indictment with five counts of violating the criminal provisions of the False Claims Act ("FCA"), 18 U.S.C. § 287.[1] 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 debt."

         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 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.

         In its 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."

         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 § 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.[2]

         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 § 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.

         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 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.

         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 for the crimes charged. The district court denied this motion.

         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 § 287.

         "A 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 Glaub ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.