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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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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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.