Petition for Writ of Certiorari — Clarence Hoffert, Petitioner v. United States

Supreme Court briefJul 9, 2020

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 19-1720

________________

UNITED STATES OF AMERICA

v.

CLARENCE HOFFERT,

Appellant

________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2-18-cr-00073-001)

District Judge: Honorable Christopher C. Conner

______________

Argued: November 13, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

(Filed: February 11, 2020 )

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Quin M. Sorenson [Argued]

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Jonathan P. Cantil [Argued]

Wei Xiang

Office of United States Attorney

138 Delaware Avenue

Buffalo, NY 14202

Counsel for Appellee

________________

OPINION

________________

SCIRICA, Circuit Judge

Clarence Hoffert appeals his convictions and sentences

under 18 U.S.C. § 1521 for filing false liens against five federal

officers who were involved in denying Hoffert’s requests to be

released from prison, where he is currently serving a lengthy

sentence for prior convictions. 1 Hoffert challenges both the

1

Hoffert was convicted and sentenced by the Court of

Common Pleas of Lebanon County, Pennsylvania for

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validity of § 1521—contending it is unconstitutionally vague

and an overbroad restriction of protected speech—as well as

the sufficiency of the evidence presented at his trial. The trial

court rejected both challenges, concluding the statute is neither

unconstitutionally vague nor overbroad and that the evidence

could rationally support a guilty verdict. We will affirm.

I.

This case is the latest entry in a long and confusing saga

relating to Clarence Hoffert’s current incarceration at SCIAlbion for convictions arising out of the Court of Common

Pleas of Lebanon County, Pennsylvania in 2003. It has its roots

in requests that Hoffert made for documents from various

governmental entities years after he began serving his

sentence. In September 2012, Hoffert asked the Clerk of Court

for the Lebanon County Courthouse to provide him a copy of

his original sentencing order, explaining that prison officials at

SCI-Albion allegedly had difficulty “keeping their records in

order” and that Hoffert, in his words, “would like to be able to

prove to them what my minimum [sentence] is when the time

comes that I shall be eligible for parole.” App’x 323. The Clerk

of Court quickly responded with a copy of the sentencing

order, but noted that “[i]f the SCI needs your paperwork to be

resent to them, they must make the request by e-mail or fax.”

App’x 325.

Shortly after getting a copy of his sentencing order,

consecutive counts of rape (9 ½ to 20 years), corruption of

a minor (2 ½ to 5 years), and endangering the welfare of

children (40 months to 7 years), for a cumulative total of

approximately 15 to 32 years in prison.

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Hoffert filed a request with the Right-to-Know Office of the

Pennsylvania Department of Corrections under Pennsylvania’s

Right-to-Know Law, 65 Pa. Stat. Ann. § 67.101 et seq., asking

for the Department of Corrections to produce a sentencing

order with a “seal stamped upon it,” along with other

associated documents. App’x 342. The request was denied

with the explanation that such records “do not currently exist.”

App’x 344. Hoffert appealed to the Pennsylvania Office of

Open Records, the Department of Corrections again searched

its records and found nothing, and the Office of Open Records

concluded in a final determination that “no responsive records

exist within the Department’s possession, custody or control.”

App’x 357–58. Hoffert was advised that he could appeal to the

Commonwealth Court of Pennsylvania if he disagreed with the

final determination.

Hoffert then filed a pro se § 1983 complaint in the

United States District Court for the Western District of

Pennsylvania, attaching as exhibits several documents relating

to his right-to-know request, including the final determination

denying his request. Hoffert asserted that he “ha[d] been

incarcerated now for over ten years without the proper ‘Sealed’

documentation,” sought damages of $3,500 per day for his

“initial and continued illegally held confinement,” and

demanded his “unbiased and immediate release” from custody.

App’x 362. His complaint was dismissed in a report and

recommendation adopted by the trial court, which held that

(1) Eleventh Amendment immunity prevented Hoffert from

seeking damages from the Commonwealth of Pennsylvania;

and (2) claims for immediate release from illegal detention are

not cognizable under 42 U.S.C. § 1983 and must instead be

addressed through a habeas corpus petition. See Hoffert v.

Pennsylvania, No. 13-162, 2014 WL 4262166 (W.D. Pa. Aug.

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27, 2014). We affirmed. See Hoffert v. Pennsylvania, No. 143947 (3d Cir. Jan. 6, 2015) (non-precedential).

Following the dismissal of his complaint, Hoffert filed

an administrative tort claim with the Torts Branch of the

United States Department of Justice’s Civil Division, seeking

$7,396,800,000 ($1.6 million per day) for his allegedly

unlawful incarceration, which he claimed was “beyond the

lawful Decrees of the Laws of Commerce and without use of a

compact/contract/agreement between the Claimant and the

U.S. Inc.’s subcorporation, PENNSYLVANIA.” App’x 386–

93. An “affidavit” associated with the administrative tort claim

elaborated on who was purportedly responsible for these

damages by providing a long list of state and federal entities

that had interacted with Hoffert, from the date of his arrest

many years before to the more recent denial of his § 1983

complaint.

The Torts Branch denied Hoffert’s administrative tort

claim. It determined that Hoffert’s claim was not compensable

because the claim alleged wrongful acts or omissions by

employees of the Commonwealth of Pennsylvania, who were

not federal employees and therefore fell outside the scope of

the Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1);

Couden v. Duffy, 446 F.3d 483, 499 (3d Cir. 2006) (“The

FTCA waives the federal government’s sovereign immunity as

to negligent or wrongful actions by its employees within the

scope of their official duties . . . .” (emphasis added)). Hoffert

was informed that if he was dissatisfied with this decision, he

could timely file suit in an appropriate United States District

Court. Instead, Hoffert wrote a letter to the director of the Torts

Branch disputing the decision and threatening to “add your [the

director’s] name and Agency to my Form 95 Administrative

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Tort Claim and file it to the superiors of the United States Inc.

at the United Nations.” App’x 412. This letter was returned to

Hoffert by a legal assistant at the Torts Branch with a brief

explanation that the Torts Branch was no longer involved in

the matter because it had denied the claim. 2

Things came to a head soon after. On August 4, 2017,

Hoffert filed a “Claim of Commercial Lien Affidavit [and]

Notice of Non-Judicial Proceeding” in the Office of the

Recorder of Deeds, Erie County, Pennsylvania, in which he

named five federal officials as lien debtors: (1) the magistrate

judge who recommended dismissal of his § 1983 complaint;

(2) the district court judge who adopted that recommendation

and dismissed that complaint; (3) one member of the Third

Circuit Court of Appeals panel that affirmed the dismissal of

the complaint; (4) the director of the Civil Division’s Torts

Branch involved with the denial of Hoffert’s administrative

tort claim; and (5) the legal assistant who responded to

Hoffert’s letter disputing the denial of his administrative tort

claim. 3 These individuals were “now being liened for a

2

During this time, Hoffert also submitted various filings to

the Secretary of the Treasury of Puerto Rico, such as an

“Affidavit Notice Demanding Setoff of Account,” in which

he requested the Secretary’s “most expedient intervention

at correcting the record by paying the bond to setoff the

account charged against the legal fiction U.S. vessel

Clarence Hoffert by the Lebanon County Court of Common

Pleas,” among other things. The record does not indicate

whether Hoffert ever received a response to these

entreaties.

3

Two Pennsylvania state officials were also named.

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minimum amount of $650,000 U.S. Dollars each” because they

had allegedly failed to comply with Pennsylvania law, “chose

to ignore the un-Constitutional sanctions imposed against

[Hoffert],” committed “treason,” and had engaged in other

purported transgressions. App’x 426. The liens were “intended

to seize all real and movable property of the [seven] Lien

Debtors,” as well as the property of their spouses and children.

Id. Hoffert claimed that each of these individuals was liable for

$8,000,000 in damages, for a total of $56 million. Hoffert

appears to have reached this sum through his interpretation of

18 U.S.C. § 3571, which permits a court to fine defendants

found guilty of a misdemeanor or felony offense. In his cover

letter to the Recorder’s Office, Hoffert specifically requested

that the liens be filed “as a Public Record.” App’x 423.

A few months after mailing the liens to the Recorder’s

Office, Hoffert asked the United States Marshals Service to

“serv[e] each lien debtor with a Distraint Warrant and to begin

collection/liquidation of all their movable assets.” App’x 511.

In response to this request, two marshals interviewed Hoffert

on January 30, 2018, to discuss the various papers he had

submitted with his liens and subsequent requests for service.

During this interview, which was recorded, Hoffert

acknowledged that he wanted the marshals to seize and

liquidate the property of the lien debtors.

Nearly two months later, a federal grand jury indicted

Hoffert, charging him with five counts of filing or attempting

to file a false lien or encumbrance against the real or personal

property of an officer or employee of the federal government,

in violation of 18 U.S.C. § 1521. Hoffert moved to dismiss the

indictment, contending § 1521 was an unconstitutionally vague

and overbroad restriction of protected speech. The trial court

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denied the motion in a careful and thorough opinion.

At trial, the jury was presented with evidence showing

that the document filed by Hoffert at the Recorder’s Office

was, and was intended to be, a false lien or encumbrance.

Jurors heard testimony from each named victim confirming

that they did not know Hoffert, had no financial dealings with

Hoffert, and did not owe Hoffert any amount of money. Hoffert

also took the stand at trial, explaining that he had chosen not to

file a habeas corpus petition because he had “watched guys sit

ten years in court and their habeas corpus never came up.”

App’x 219. He thus pursued a different strategy: “I just wanted

the notoriety. I really wasn’t looking to get any type of

monetary value out of anything. . . . I just wanted to show that

we’re still being held without the proper paperwork.” App’x

220. Hoffert also indicated that although he sought damages of

$8 million from each victim under his reading of 18 U.S.C. §

3571, which permits a court to impose criminal penalties, he

nonetheless understood that only the government could bring

criminal charges against a person.

The jury convicted Hoffert on all five counts. He moved

for a judgment of acquittal, arguing the evidence was not

sufficient to sustain his convictions. The trial court denied his

motion, concluding that the record contained sufficient

evidence to support the jury’s guilty verdict, and sentenced

Hoffert to 48 months of imprisonment consecutive to the

sentences he was already serving. He now appeals, arguing that

18 U.S.C. § 1521 is unconstitutional and that there was

insufficient evidence to support his convictions.

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II.

Section 1521 makes it illegal to file a false lien against

federal officials for the performance of their official duties:

Whoever files, attempts to file, or

conspires to file, in any public record or

in any private record which is generally

available to the public, any false lien or

encumbrance against the real or personal

property of an individual described in

section 1114, on account of the

performance of official duties by that

individual, knowing or having reason to

know that such lien or encumbrance is

false or contains any materially false,

fictitious, or fraudulent statement or

representation, shall be fined under this

title or imprisoned for not more than 10

years, or both.

18 U.S.C. § 1521. Hoffert asserts § 1521 is unconstitutional

because the scienter requirement “knowing or having reason to

know” is vague and overbroad. As Hoffert challenges the

constitutionality of this criminal statute, our review is de novo.

See United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011).

We have jurisdiction over the final decision of the trial court

under 28 U.S.C. § 1291.

A.

We begin with Hoffert’s vagueness challenge to § 1521.

A conviction violates due process if a criminal statute on which

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the conviction is based “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously

discriminatory enforcement.” United States v. Williams, 553

U.S. 285, 304 (2008). “For the criminal context in particular,

vagueness challenges ‘may be overcome in any specific case

where reasonable persons would know their conduct puts them

at risk of punishment under the statute.’” United States v.

Ferriero, 866 F.3d 107, 124 (3d Cir. 2017) (quoting United

States v. Moyer, 674 F.3d 192, 211 (3d Cir. 2012)). A criminal

statute need only give “fair warning” that certain conduct is

prohibited, Ferriero, 866 F.3d at 124, and “one who

deliberately goes perilously close to an area of proscribed

conduct shall take the risk that he may cross the line,” Boyce

Motor Lines v. United States, 342 U.S. 337, 340 (1952).

Section 1521’s scienter requirement, or one quite

similar to it, is ubiquitous in the criminal law, see, e.g., United

States v. Saffo, 227 F.3d 1260, 1268 (10th Cir. 2000)

(collecting statutes), and has withstood numerous vagueness

challenges. In Gorin v. United States, the Supreme Court

considered a vagueness challenge to the Espionage Act, which

criminalized certain conduct when a defendant had “intent or

reason to believe” that certain information would “be used to

the injury of the United States, or to the advantage of any

foreign nation.” 312 U.S. 19, 27–28 (1941). In rejecting the

challenge, the Court found “no uncertainty in this statute which

deprives a person of the ability to predetermine whether a

contemplated action is criminal,” and focused in particular on

the “obvious delimiting words” of the scienter requirement,

which “require[d] those prosecuted to have acted in bad faith.”

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Id. 4 We think it clear that if the scienter requirements

challenged in Gorin and many other cases were not vague, then

neither is § 1521.

Hoffert nonetheless contends that § 1521 is

unconstitutionally vague because “entirely innocent persons”

could be convicted under a “reason to know” standard.

Appellant Br. at 15. We disagree. Rather than permitting the

conviction of innocent persons, § 1521 has a scienter

requirement that defines the level of culpability for the offense

and which has a settled legal meaning. A person has “reason to

know” of a certain fact when “a person of ordinary intelligence

. . . would infer that the fact in question exists or that there is a

substantial enough chance of its existence that, if the person

exercises reasonable care, the person can assume the fact

exists.” See Reason to Know, Black’s Law Dictionary (11th ed.

2019). As courts have uniformly recognized, a criminal statute

4

Following Gorin, the courts of appeals have consistently

rejected vagueness challenges to similar scienter

requirements. See, e.g., Saffo, 227 F.3d at 1270 (rejecting

challenge to “reasonable cause to believe” standard because

the defendant could only have understood it to proscribe the

sale of illegal pseudoephedrine); Casbah, Inc. v. Thone,

651 F.2d 551, 561 (8th Cir. 1981) (rejecting challenge to

statute criminalizing the sale of items that a seller

“reasonably should know” will be used as drug

paraphernalia); United States v. Featherston, 461 F.2d

1119, 1121–22 (5th Cir. 1972) (rejecting challenge to 18

U.S.C. § 231’s “knowing or having reason to know”

requirement because the statute was “sufficiently definite

to apprise men of common intelligence of its meaning and

application”).

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employing a “reason to know” standard requires an individual

to proceed with reasonable care and to “open his eyes to the

objective realities” of a given course of conduct. Casbah, 651

F.2d at 561; see also Fla. Businessmen for Free Enter. v. City

of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“The

‘reasonably should know’ standard does not punish innocent

or inadvertent conduct. . . .”). With respect to § 1521, the only

court of appeals to have so far construed the statute has

similarly held that “[u]nder § 1521, . . . a defendant can be

guilty even if he honestly believed that he filed a proper lien so

long as the belief was not a reasonable one.” United States v.

Williamson, 746 F.3d 987, 994 (10th Cir. 2014). So instead of

being vague, § 1521’s use of “reason to know” reveals nothing

more complicated than that Congress intended for lien filers to

proceed with reasonable care as to the falsity of a lien.

Further undermining Hoffert’s vagueness challenge is

that § 1521 limits criminal liability to those situations where

someone knows or has reason to know of a lien’s falsity, which

makes the statute less vague, not more. A person who files a

lien is protected from criminal sanction if he or she acted

reasonably under the circumstances as to its falsity, thus

allowing individuals to conform their conduct accordingly. See

Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526

(1994) (“[A] scienter requirement may mitigate a law’s

vagueness, especially with respect to the adequacy of notice

. . . that [the] conduct is proscribed.”) (quoting Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499

(1982)). For similar reasons, we must also reject Hoffert’s

contention that § 1521’s use of a “reason to know” standard is

vague because it relies on a “reasonableness” standard. “The

mere fact that a penal statute is so framed as to require a jury

upon occasion to determine a question of reasonableness is not

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sufficient to make it too vague to afford a practical guide to

permissible conduct.” United States v. Ragen, 314 U.S. 513,

523 (1942). 5

Finally, Hoffert argues that his conduct—in contrast to,

say, espionage—is not “inherently unlawful in some way,”

because filing liens is a normal part of everyday commercial

activity. Reply Br. at 4–5. Hoffert’s premise is flawed—he did

not just file a lien, but rather a false, retaliatory lien against

federal officials—but whatever the case, this distinction is

immaterial. The dispositive question for whether a statute is

unconstitutionally vague is not the “inherent” lawfulness of

certain conduct, but whether “reasonable persons would know

their conduct puts them at risk of punishment under the

statute.” Ferriero, 866 F.3d at 124. We find that nothing in the

statute prevented Hoffert from knowing that his course of

conduct put him at risk of punishment. Section 1521 is not

vague, and any individual “desirous of observing the law will

have little difficulty in determining what is prohibited by it.”

Omaechevarria v. Idaho, 246 U.S. 343, 348 (1918).

B.

We now turn to Hoffert’s other facial challenge under

the First Amendment. “In the First Amendment context, . . . a

law may be invalidated as overbroad if ‘a substantial number

5

Because § 1521’s scienter requirement is clear in its

language and provides a guide to conduct, Hoffert’s

argument about whether the trial court erred when it

instructed the jury on a “good faith” defense is irrelevant.

Regardless of whether the defense is available under §

1521, the statute is not vague either way.

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of its applications are unconstitutional, judged in relation to the

statute’s plainly legitimate sweep.’” Ferriero, 866 F.3d at 125

(quoting United States v. Stevens, 559 U.S. 460, 473 (2010)).

A law must be “substantially overbroad” to be

unconstitutional, Williams, 553 U.S. at 303, and the “mere fact

that one can conceive of some impermissible applications of a

statute is not sufficient to render it susceptible to an

overbreadth challenge,” Members of City Council of L.A. v.

Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Invalidation

for overbreadth is “‘strong medicine’ that is not to be ‘casually

employed.’” Williams, 553 U.S. at 293 (quoting L.A. Police

Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39

(1999)).

Determining whether a statute is unconstitutionally

overbroad is a two-step process. “The first step in overbreadth

analysis is to construe the challenged statute,” followed by the

second step of evaluating whether the statute, as construed,

“criminalizes a substantial amount of protected expressive

activity.” Williams, 553 U.S. at 293, 297. Section 1521’s

construction is straightforward: it is illegal to file a false lien

against federal officials on account of the performance of their

official duties when the filer knows or has reason to know the

lien is false. Section 1521 thus prohibits a relatively narrow

band of activity.

Although Hoffert must show § 1521 criminalizes a

substantial amount of protected speech, he cites no authority or

evidence to indicate that it does. 6 Indeed, there is much cutting

6

Hoffert cites Tyler v. University of Arkansas Board of

Trustees, 628 F.3d 980 (8th Cir. 2011), and Augustin v. City

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against it. “[T]he First Amendment does not shield fraud,”

Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538

U.S. 600, 612 (2003), and we have previously remarked on the

“unique problem” that false liens pose, which allow the

perpetrator to “file the lien with relative ease” while requiring

the victim to “go through a complicated ordeal, such as to seek

judicial action, in order to remove the lien.” Monroe v. Beard,

536 F.3d 198, 209 (3d Cir. 2008) (per curiam) (rejecting First

Amendment challenge to confiscation of prisoner legal

materials used to file false liens). Given the fraudulent nature

of false liens and the low social value of filing them, we

conclude that § 1521 does not restrict a substantial amount of

protected speech.

III.

Hoffert also challenges the sufficiency of the evidence

to sustain his conviction, which we review de novo. See United

States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014). “[T]he

critical inquiry on review of the sufficiency of the evidence to

support a criminal conviction . . . is whether, after viewing the

evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Caraballo-Rodriguez, 726 F.3d 418, 424–25

of Philadelphia, 897 F.3d 142 (3d Cir. 2018), in support of

this argument. But Tyler involves the filing of a claim with

the Equal Employment Opportunity Commission, not a

false lien, and Augustin addresses municipal liens and does

not involve the First Amendment. Both cases fall far short

of showing § 1521 criminalizes a substantial amount of

protected speech.

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(3d Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). A jury’s verdict must be upheld unless it falls below

the threshold of “bare rationality.” Coleman v. Johnson, 566

U.S. 650, 656 (2012).

Hoffert’s sufficiency challenge again centers on the

mens rea element of § 1521. He asserts his conviction is

unsupported by the record because “[n]o witness testified and

no evidence showed that Mr. Hoffert knew that the lien was

false when filed.” Appellant Br. at 18. But as the trial court

noted, Hoffert had engaged in an extensive course of conduct

to challenge his state convictions, repeatedly ignored advice to

file habeas corpus petitions, sought $7.3 billion in damages for

his confinement, and even threatened to “add” the director of

the Tort Branch to his administrative tort claim after it was

denied. As for the lien itself, it sought $8 million from each of

five federal officials under Hoffert’s calculation of criminal

penalties under 18 U.S.C. § 3571, even though he conceded

that only the government could seek to impose such penalties.

And when asked why he filed the liens, Hoffert responded that

he did not file them to recover money but rather to expedite

what he perceived to be an unduly slow habeas corpus process.

He even went so far as to state that he “just wanted the

notoriety,” “wasn’t looking to get any type of monetary value

out of anything,” and “just wanted to show that we’re still

being held without the proper paperwork.” App’x 220.

Given the circumstantial evidence of Hoffert’s

intentions and his own admissions at trial about his mental

state, we conclude that the jury could have rationally

concluded that Hoffert filed the liens “knowing or having

reason to know that such lien[s] or encumbrance[s] [were]

false.” 18 U.S.C. § 1521; see also Caraballo-Rodriguez, 726

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F.3d at 432 (“Unless the jury’s conclusion is irrational, it must

be upheld.”). Accordingly, we will not disturb the jury’s

verdict.

IV.

For the foregoing reasons, we will affirm the trial

court’s judgment of convictions and sentences.

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 19-1720

________________

UNITED STATES OF AMERICA

v.

CLARENCE HOFFERT,

Appellant

________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2-18-cr-00073-001)

District Judge: Honorable Christopher C. Conner

______________

Argued: November 13, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

________________

JUDGMENT

________________

This cause came to be considered on the record from the United States District

Court for the Western District of Pennsylvania and was argued on November 13, 2019.

On consideration whereof, it is now hereby

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ORDERED and ADJUDGED by this Court that the judgment of the District Court

entered March 18, 2019, be, and the same is hereby AFFIRMED. All of the above in

accordance with the opinion of this Court.

ATTEST:

s/Patricia S Dodszuweit

Clerk

DATED: February 11, 2020

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

CLARENCE HOFFERT,

Defendant

:

:

:

:

:

:

:

CIVIL ACTION NO. 2:18-CR-73

(Chief Judge Conner)

MEMORANDUM

Presently before the court in the above-captioned action is a motion (Doc. 26)

to dismiss the indictment by defendant Clarence Hoffert (“Hoffert”). Hoffert seeks

dismissal of all charges against him pursuant to First and Fifth Amendments to the

United States Constitution. For the reasons that follow, the court will deny

Hoffert’s motion.

I.

Factual Background & Procedural History

Hoffert is currently serving a 15 to 34 year sentence for convictions arising

out of the Court of Common Pleas of Lebanon County, Pennsylvania. (See Doc. 261 at 2; Doc. 26-3 at 2). Beginning in September 2012, Hoffert sought copies of his

original sentencing order and other documents associated with his conviction and

commitment to the Pennsylvania Department of Corrections. (See Doc. 26-1 at 2).

In October 2012, Hoffert requested a copy of his sentencing order with the court

seal affixed from the Pennsylvania Office of Open Records. (Id. at 6). That office

denied Hoffer’s request on the ground that the record Hoffert sought did not exist.

(Id. at 8-9). Hoffert’s appeal of this decision was denied. (Id. at 11; Doc. 26-2 at 8-9).

Hoffert also corresponded with the Pennsylvania Bureau of Contracts e-Library at

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the Treasury Department, seeking any contractual documents between himself and

the Commonwealth of Pennsylvania that might justify his incarceration. (Doc. 26-2

at 11-12). The Treasury Department responded that “no contracts [were found]

between [Hoffert] and any government agency or the Commonwealth of

Pennsylvania.” (Id. at 14-15).

On June 19, 2013, Hoffert filed a pro se civil rights complaint in the Western

District of Pennsylvania pursuant to 42 U.S.C. § 1983, seeking “compensation for

[his] confinement and immediate unbiased release from confinement.” (Doc. 26-3

at 2-4). Hoffert claimed that state officials failed to comply with Pennsylvania law

requiring an inmate’s correctional institution to receive, inter alia, a written, sealed

sentencing order and sentencing colloquy from the county court. (Id. at 22-24

(citing 42 PA. CONS. STAT. § 9764(b)). Hoffert sought damages of $3,500 per day for

each day of alleged unlawful confinement. (Id. at 23). The court denied Hoffert’s

motion for protection from abuse and then dismissed his complaint for various

pleading deficiencies. (Id. at 46); Hoffert v. Pennsylvania, No. 13-162, 2014 WL

4262166 (W.D. Pa. Aug. 27, 2014). The Third Circuit Court of Appeals denied

Hoffert’s petition for writ of mandamus, see In re Hoffert, 588 F. App’x 105 (3d Cir.

2015) (per curiam), and affirmed the dismissal of Hoffert’s complaint on appeal,

Hoffert v. Pennsylvania, No. 13-162, Doc. 42 (W.D. Pa. Jan. 6, 2015).

Hoffert next submitted an “Affidavit Notice Demanding Setoff of Account”

dated March 26, 2015 to the Secretary of the Treasury in San Juan, Puerto Rico.

(Doc. 26-4 at 32-33). He requested the secretary’s “intervention at correcting the

record by paying the bond to setoff the account charged against the legal fiction

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U.S. vessel CLARENCE HOFFERT by the Lebanon County Court of Common

Pleas.” (Id. at 33; see id. at 35). On August 27, 2015, Hoffert filed a claim for

damage, injury, or death with the United States Department of Justice, Civil

Division, Torts Branch, seeking $7,396,800,000.00 ($1.6 million per day) for his

alleged unlawful incarceration. (Doc. 26-5 at 2). The civil division denied Hoffert’s

administrative tort claim, observing that alleged wrongful acts by state employees

are not compensable under the Federal Tort Claims Act. (Id. at 11).

On August 4, 2017, Hoffert submitted a “Claim of Commercial Lien Affidavit

[and] Notice of Non-Judicial Proceeding” to the Erie County Recorder of Deeds.

(Id. at 19). This document identified five federal officials and employees—each of

whom was connected to Hoffert’s various judicial and administrative filings—who

were “being liened for a minimum of $650,000.00 U.S. Dollars each” for failure to

comply with Pennsylvania law and ignoring alleged unconstitutional sanctions

imposed on Hoffert. (Id. at 20). This purported commercial lien document was

“intended to seize all real and movable property of the [five federal] Lien Debtors.”

(Id.) The document concluded by claiming that each of the five individuals is

individually liable for $8,000,000.00 in damages for a combined settlement value of

$56,000,000.00.1 (Id. at 22). On November 14, 2017, Hoffert asked the United States

Marshals Service to “serv[e] each lien debtor with a Distraint Warrant and to begin

collection/liquidation of all of their movable assets.” (Doc. 26-6 at 9). On January

1

The document identified seven individuals by name, but only five of them

were federal officials or employees pursuant to 18 U.S.C. §§ 1114 and 1521. (Doc. 265 at 19).

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30, 2018, two marshals interviewed Hoffert to discuss the various papers he

submitted in conjunction with his commercial lien document and subsequent

request for service of “distraint warrants.” (See Doc. 26-6 at 19). Hoffert sent the

marshals a letter thanking them for meeting with him regarding the liens. (Id.)

On March 20, 2018, a federal grand jury sitting in Pittsburgh, Pennsylvania,

returned an indictment against Hoffert, charging him with five counts of filing or

attempting to file a false lien or encumbrance against the real or personal property

of an officer or employee of the federal government, in violation of 18 U.S.C. § 1521.

Hoffert filed the instant motion (Doc. 26) to dismiss the indictment. The motion is

fully briefed and ripe for disposition.

II.

Legal Standard

A motion to dismiss a criminal indictment may be brought at any time before

trial. See FED. R. CRIM. P. 12(b)(3). A motion to dismiss the indictment may allege a

defect in instituting the prosecution, including improper venue, violation of the

constitutional right to a speedy trial, or selective prosecution. See FED. R. CRIM. P.

12(b)(3)(A). A motion to dismiss may also be premised on perceived substantive

deficiencies, including duplicity or multiplicity in the indictment, lack of specificity,

improper joinder, or failure to state an offense. See FED. R. CRIM. P. 12(b)(3)(B). In

the context of a motion to dismiss, the court is obliged to test the sufficiency of the

government’s allegata but not the sufficiency of the government’s probata. United

States v. Huet, 665 F.3d 588, 594-95 (3d Cir. 2012). The court must decide every

pretrial motion before trial unless good cause exists to defer its ruling. See FED. R.

CRIM. P. 12(d).

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III.

Discussion

Congress enacted Section 1521 of the Court Security Improvement Act of

2007 to “penalize individuals who seek to intimidate and harass Federal judges and

employees by filing false liens against their real and personal property.” H.R. Rep.

No. 110-218, pt. 1, at 17 (2007). Under Section 1521, it is unlawful for anyone to

file[], attempt[] to file, or conspire[] to file, in any public

record or in any private record which is generally

available to the public, any false lien or encumbrance

against the real or personal property of [any officer or

employee of the United States], on account of the

performance of official duties by that individual, knowing

or having reason to know that such lien or encumbrance

is false or contains any materially false, fictitious, or

fraudulent statement or representation.

18 U.S.C. § 1521; see id. § 1114. Hoffert contends that Section 1521’s scienter

requirement offends the First Amendment’s overbreadth doctrine and the statute is

therefore unconstitutional on its face and as applied to him. He also argues that the

statute is unconstitutionally vague as pertains the scienter and property elements.

The court will address these arguments seriatim.

A.

Unconstitutionally Overbroad

Courts may invalidate legislation restricting free speech as overbroad when

“a substantial number of its applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473

(2010) (internal quotation marks omitted) (quoting Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 449 n.6 (2008)); see also Erznoznik v. City of

Jacksonville, 422 U.S. 205, 216 (1975). Invalidation of a statute as overbroad is

“strong medicine” and “is not to be casually employed.” United States v. Williams,

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553 U.S. 285, 293 (2008) (internal quotation marks and citations omitted); see also

Wash. State Grange, 552 U.S. at 449 n.6. A court conducting an overbreadth

analysis first construes the challenged statute and then determines if the statute, as

construed, “criminalizes a substantial amount of protected expressive activity.”

Williams, 553 U.S. at 293, 297.

An individual violates Section 1521 when he or she files a false lien or

encumbrance “knowing or having reason to know that such lien or encumbrance is

false or contains any materially false, fictitious, or fraudulent statement or

representation.” 18 U.S.C. § 1521. Hoffert claims that inclusion of the “having

reason to know” mental state permits a conviction under a purely objective,

“reasonable person” standard. (Doc. 27 at 13-14). He avers that the “reasonable

person” standard is a constitutionally infirmed criminal mens rea that proscribes a

substantial amount of protected speech. (Id. at 14-15).

The Third Circuit has not considered the constitutionality of Section 1521’s

mental state requirement, nor has it addressed the reason-to-know mens rea more

broadly. The parties’ arguments concenter on United States v. Williamson, 746 F.3d

987 (10th Cir. 2014), and the case law referenced therein. In Williamson, the Tenth

Circuit held that the “having reason to know” standard encompassed a subjective

and objective component. Id. at 994. Under this standard, the court stated that a

jury may convict a defendant of violating Section 1521 “if a reasonable person who

possessed the information possessed by the defendant would have the requisite

knowledge of falsity.” Id. (citing United States v. Munguia, 704 F.3d 596, 602-03 (9th

Cir. 2012); United States v. Saffo, 227 F.3d 1260, 1268-69 (10th Cir. 2000)).

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Multiple circuits have similarly interpreted the reason-to-know standard in

the context of our controlled substance statute, 21 U.S.C. § 841.2 In United States v.

Saffo, 227 F.3d 1260 (10th Cir. 2000), the Tenth Circuit held that the reason-to-know

standard is a constitutionally sufficient mens rea requirement “involv[ing] a

subjective inquiry,” which focuses on what facts the defendant knew. Saffo, 227

F.3d at 1268. Relying on Saffo, the Ninth Circuit likewise determined that the

reason-to-know standard tasked the jury with “evaluat[ing] scienter through the

lens of the particular defendant on trial,” not what the hypothetical person would

have reason to know. Munguia, 704 F.3d at 603 (citations omitted). Both courts

clarified that the reason-to-know standard, sometimes referred to as constructive

knowledge, is akin to actual knowledge. Munguia, 704 F.3d at 603 (quoting United

States v. Johal, 428 F.3d 823, 828 (9th Cir. 2005)); Saffo, 227 F.3d at 1269.

We are persuaded by the ratio decidendi of the Saffo and Munguia decisions.

The reason-to-know standard comports with the requirement that a defendant act

in bad faith or possess a “guilty mind” to be found criminally liable. See Saffo, 227

F.3d at 1269 (quoting Gorin v. United States, 312 U.S. 19, 27-28 (1941)). Under this

standard, a jury must be instructed to “consider the knowledge and sophistication

of the particular defendant on trial, not that of a hypothetical reasonable person.”

Munguia, 704 F.3d at 603. In other words, we apply a hybrid standard: a jury may

convict the defendant under Section 1521 if a reasonable person, having the

2

Congress frequently employs the “knowing or having reason to know”

scienter standard in criminal statutes. See Saffo, 227 F.3d at 1268 (collecting

statutes). Some statutes employ the synonymous phrase “knowing, or having

reasonable cause to believe.” See, e.g., 21 U.S.C. § 960(d)(3) (emphasis added).

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defendant’s characteristics—in essence, standing in the defendant’s shoes—would

have the requisite knowledge that the liens or encumbrances at issue were false.

See Munguia, 704 F.3d at 602-603 (citing Saffo, 227 F.3d at 1268-69); see also

Williamson, 746 F.3d at 994.

Hoffert asseverates that this reading of the reason-to-know standard

criminalizes his conduct regardless of whether he acted in bad faith. (Doc. 27 at 1314). In support of this position, Hoffert points to the Williamson decision, wherein

the Tenth Circuit noted that a defendant can be found guilty under Section 1521

“even if he honestly believed that he filed a proper lien so long as the belief was not

a reasonable one.” See Williamson, 746 F.3d at 994. The court rejected a good-faith

instruction as “inconsistent with the objective component of the having-reason-toknow requirement.” Id. at 994. We decline to adopt the Tenth Circuit’s reasoning

on this narrow issue. Inherent in the reason-to-know standard is the requirement

that the government prove that the defendant acted in bad faith. See Saffo, 227

F.3d at 1268 (quoting Gorin, 312 U.S. at 27-28). We find that a good-faith-defense

instruction is consistent with the reason-to-know mens rea standard and that such

an instruction will further encourage the jury to consider the knowledge and

sophistication of the particular defendant on trial.

Section 1521 does not burden a substantial amount of protected speech.

Hoffert’s concerns that the statute penalizes individuals—specifically incarcerated

persons—who are “not . . . sophisticated in the law” are squarely addressed by our

construction of the statute’s scienter requirement and by the availability of a goodfaith-defense instruction. (See Doc. 27 at 14; Doc. 36 at 8 & n.2). Moreover, fraud is

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not protected speech under the First Amendment. See Illinois, ex rel. Madigan v.

Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003). Section 1521 clearly

proscribes the knowing filing of false or fraudulent liens to target federal employees

for performing their official duties and is not facially overbroad.

Hoffert also argues that the statute is overbroad as applied to him. Under the

overbreadth doctrine, a litigant may “benefit from the statute’s unlawful application

to someone else” even if the statute could be constitutionally applied to the litigant.

Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483 (1989). An as-applied

overbreadth claim is not cognizable under the First Amendment because such a

claim is “inherently facial.” Stoltzfoos v. Sec’y of Pa. Dep’t of Corr., 733 F. App’x 34,

39 (3d Cir. 2018) (nonprecedential) (citing Fox, 492 U.S. at 482-83); cf. Nat’l

Taxpayers Union v. U.S. Soc. Sec. Admin., 302 F. App’x 115, 118 (3d Cir. 2008)

(nonprecedential). We will deny Hoffert’s as-applied overbreadth challenge to

Section 1521.

B.

Unconstitutionally Vague

The vagueness doctrine is borne of the Due Process Clause of the Fifth

Amendment. See Williams, 553 U.S. at 304. It requires the government to advise

precisely what conduct is impacted so that the public may tailor its behavior

accordingly. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498-99 (1982). Legislation falls short of this mandate when it “fails to

provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory

enforcement.” FCC v. Fox TV Stations, Inc., 567 U.S. 239, 253 (2012) (quoting

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Case 2:18-cr-00073-CCC Document 58 Filed 10/04/18 Page 10 of 13

Williams, 553 U.S. at 304); United States v. Fullmer, 584 F.3d 132, 152 (3d Cir. 2009);

see also Vill. of Hoffman Estates, 455 U.S. at 498. The possibility that an

incriminating fact may “sometimes be difficult to determine” does not render a

statute vague; rather, “the indeterminacy of precisely what that fact is” will void a

statute for vagueness. Williams, 553 U.S. at 306. When free speech is implicated,

the Constitution demands “rigorous adherence” to these due process requirements.

FCC, 567 U.S. at 253-54. Hoffert identifies two statutory elements that purportedly

render Section 1521 void for vagueness, to wit: the scienter requirement and the

real or personal property element.

Section 1521 clearly criminalizes the conduct of a person who files a false lien

or encumbrance against the property of a federal official for performance of that

official’s duties, knowing or having reason to know that such lien or encumbrance is

in fact false or contains materially false or fraudulent representations.3 See 18

U.S.C. § 1521. The reason-to-know standard “requires those prosecuted to have

acted in bad faith,” thereby exempting innocent or inadvertent conduct from

criminal prosecution. See Gorin, 312 U.S. at 27-28; see also Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 822–23 (9th Cir. 2003); United States v. Featherston, 461 F.2d

1119, 1121 (5th Cir. 1972) (quoting Gorin, 312 U.S. at 27-28); Nat’l Mobilization

3

Hoffert directs the court to United States v. Moyer, 674 F.3d 192 (3d Cir.

2012), which concerned a vagueness challenge to 18 U.S.C. § 1519. In Moyer, the

Third Circuit held that Section 1519 was not unconstitutionally vague because a

defendant could only be convicted for acting “knowingly and with the purpose of

doing that which the statute prohibits.” Id. at 211-12. Hoffert’s reliance on Moyer is

misplaced. Section 1519 does not contain a reason-to-know standard. See 18 U.S.C.

§ 1519. Consequently, the Moyer court had no occasion to address whether the

reason-to-know standard was unconstitutionally vague.

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Comm. to End War in Viet Nam v. Foran, 411 F.2d 934, 937 (7th Cir. 1969). As

discussed supra, the reason-to-know standard tasks a jury with first determining

the defendant’s knowledge and sophistication, and then whether a reasonable

person possessing that knowledge and sophistication would have reason to know

the at-issue lien or encumbrance was false. Section 1521’s mens rea requirement is

sufficiently definite to place a person of ordinary intelligence on fair notice of what

is prohibited.

An individual violates Section 1521 by filing a false lien or encumbrance

“against the real or personal property” of a federal official or employee. 18 U.S.C.

§ 1521 (citing 18 U.S.C. § 1114). Hoffert contends that the absence of a statutory

definition of “real or personal property” renders Section 1521 unconstitutionally

vague. (Doc. 27 at 18-20). When interpreting a statute, courts assign a term its

ordinary meaning absent a statutory definition, Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560, 566 (2012) (citation omitted), and consider the relevant words “in

reference to the statutory context, structure, history, and purpose,” Abramski v.

United States, 573 U.S. __, 134 S. Ct. 2259, 2267 (2014) (citation omitted).

Real property and personal property have well-settled legal definitions.

Personal property constitutes “[a]ny movable or intangible thing that is subject to

ownership and not classified as real property.” Property, BLACK’S LAW DICTIONARY

(10th ed. 2014). Real property, by contrast, is “[l]and and anything growing on,

attached to, or erected on it” including incorporeal rights such as easements. Id.

The Supreme Court recognized that when Congress uses the term “property”

broadly, it “aims to reach every species of right or interest protected by law and

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having an exchangeable value.” Drye v. United States, 528 U.S. 49, 56 (1999)

(internal quotation marks omitted) (quoting Jewett v. Commissioner, 455 U.S. 305,

309 (1982)); see also United States v. Monsanto, 491 U.S. 600, 607 (1989).

The liens at issue in the matter sub judice state that the federal employees

are each individually liable for $8 million, for a combined total of $56 million. (Doc.

26-5 at 22). Defense counsel contends that this request is “completely nonsensical”

and cannot be construed as “the ‘real or personal property’ of a federal employee.”

(Doc. 27 at 18). We disagree. Multiple circuit courts have recognized that Section

1521 criminalizes the filing, attempted filing, or conspiracy to file documents that

create false liens or liens containing materially false information against federal

employees “without regard to the validity or existence of the identified collateral in

such documents.” United States v. Neal, 776 F.3d 645, 654 (9th Cir. 2015); see also

United States v. Reed, 668 F.3d 978, 984-85 (8th Cir. 2012). We are persuaded by the

Ninth Circuit’s reasoning that the “real and personal property” element limits the

scope of the class of documents prohibited by Section 1521 without regard to any

technical deficiencies, or the validity of the collateral identified in said documents.

Neal, 776 F.3d at 653-54 (citing Reed, 668 F.3d at, 984-85); see also United States v.

Jordan, 851 F.3d 393, 397-98 (5th Cir.), cert. denied, 138 S. Ct. 137 (2017) (quoting

Neal, 776 F.3d at 653-54). The term “real or personal property” as used in Section

1521 is not unconstitutionally vague.

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Case 2:18-cr-00073-CCC Document 58 Filed 10/04/18 Page 13 of 13

IV.

Conclusion

The court will deny Hoffert’s motion (Doc. 26) to dismiss the indictment. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated:

October 4, 2018

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Case 2:18-cr-00073-CCC Document 59 Filed 10/04/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

CLARENCE HOFFERT,

Defendant

:

:

:

:

:

:

:

CRIMINAL NO. 2:18-CR-73

(Chief Judge Conner)

ORDER

AND NOW, this 4th day of October, 2018, upon consideration of the motion

(Doc. 26) to dismiss the indictment by defendant Clarence Hoffert, and the parties’

respective briefs in support of and opposition to said motion (Docs. 27, 31, 36), and

for the reasons stated in the accompanying memorandum, it is hereby ORDERED

that:

1.

The motion (Doc. 26) to dismiss the indictment is DENIED.

2.

The government may submit supplemental points for charge in light of

the court’s reasoning set forth in the accompanying memorandum.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

33a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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