Petition for Writ of Certiorari — Paul R. Hansmeier, Petitioner v. United States

Supreme Court briefOct 12, 2023

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APP A

No: 23-2436

Paul R. Hansmeier

Petitioner - Appellant

United States of America

Respondent - Appellee

Appeal from U.S. District Court for the District of Minnesota

(0:21 -cv-02751 - JNE)

JUDGMENT

Before LOKEN, BENTON, and GRASZ, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

August 08, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

APf, A

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

United States of America,

Plaintiff,

Case No. 16-cr-334 (JNE) (1)

Case No. 21-cv-2751 (JNE)

ORDER

Paul R. Hansmeier,

Defendant.

A grand jury charged Defendant with one count of conspiracy to commit mail

fraud and wire fraud (count 1), five counts of mail fraud (counts 2-6), ten counts of wire

fraud (counts 7-16), one count of conspiracy to commit money laundering (count 17), and

one count of conspiracy to commit and suborn perjury (count 18). He moved to dismiss

counts 1-17, asserting that “[t]he charging document fails to allege facts that constitute

the charged criminal offenses at issue,” that the “charges are predicated upon a

constitutionally- and legally-invalid theory and prosecution,” and that “the charging

document fails to adequately and fairly inform the accused of the charged offenses.” The

Court denied Defendant’s motion to dismiss. Reserving the right to appeal the denial of

his motion to dismiss, Defendant pleaded guilty to counts 1 and 17. The Court sentenced

him to 168 months’ imprisonment on each count, to be served concurrently, and 2 years’

supervised release on each count, to run concurrently. Defendant appealed. The United

States Court of Appeals for the Eighth Circuit affirmed. United States v. Hansmeier, 988

F.3d 428 (8th Cir.), cert, denied, 142 S. Ct. 262 (2021).

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Within one year after the denial of his petition for a writ of certiorari, Defendant

filed a motion under 28 U.S.C. § 2255; another § 2255 motion that adds three claims

(claims 13-15) to the twelve of his initial § 2255 motion; a supplement, which asserts

another claim (claim 16); and a motion to amend in which he seeks to add six claims,

including claims 13-16, to the twelve of his initial § 2255 motion.^ For the reasons set

forth below, the Court grants his motion to amend. Because the record conclusively

shows that Defendant is not entitled to relief, the Court denies his § 2255 motion without

an evidentiary hearing. See Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.

2013).

Defendant filed several motion after the motion to amend. The Court grants in

part and denies in part his request for judicial notice. The Court denies his motion to

expand the record, motion for leave to take discovery, limited motion to disqualify,

motion for an evidentiary hearing, motion to alter or amend, and motion for a hearing

under Rule 201 (e) of the Federal Rules of Evidence.

Motion to Amend

Defendant moved to amend his § 2255 motion to add six claims. Acknowledging

that the additional claims are “timely without need to relate the claims back to his initial

motion,” the United States asserted that the Court should deny the motion because

Defendant “has not offered any reasons to support his motion to amend.”

“Federal Rule of Civil Procedure 15(a) governs requests to amend § 2255 motions

before the district court enters judgment. A party may amend with the court’s leave,

which should be ‘freely give[n]... when justice so requires.’” United States v. Sellner,

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773 F.3d 927, 931 (8th Cir. 2014) (alterations in original) (citations omitted). In the

absence of any allegations of undue delay or prejudice, the Court grants Defendant’s

motion to amend. See Friedman v. Farmer, 788 F.3d 862, 869 (8th Cir. 2015).

II.

Section 2255 Motion

Section 2255 states:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to vacate, set

aside or correct the sentence.

28 U.S.C. § 2255(a). “A motion under § 2255 is not a substitute for a direct appeal....”

Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Section 2255 “provides a

remedy for jurisdictional and constitutional errors.” Sun Bear v. United States, 644 F.3d

700, 704 (8th Cir. 2011) (en banc). “Beyond that, the permissible scope of a § 2255

collateral attack on a final conviction or sentence is severely limited; ‘an error of law

does not provide a basis for collateral attack unless the claimed emor constituted “a

By granting Defendant’s motion to amend, the Court expresses no opinion on the

merits of claims 13-18. Cf Friedman, 788 F.3d at 869 (stating that leave to amend may

be denied based on futility).

The § 2255 motion that includes claims 13-15 and the supplement, which asserts

claim 16, are construed as motions to amend. See Sellner, 773 F.3d at 931-32; cf. Dyab

v. United States, 855 F.3d 919, 923 (8th Cir. 2017) (“Not every change to a judgment

results in a new sentence or judgment that wipes clean the slate of post-conviction

motions previously filed.”). Because Defendant filed a motion to amend, one that

includes claims 13-16, the Court denies as moot his prior attempts to amend.

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fundamental defect which inherently results in a complete miscarriage of justice.’”” Id.

(quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).

Claim 1

Defendant asserted that “the indictment failed to charge [him] with fraud because

it failed to establish the essential element of ‘intent to harm.’” The United States asserted

that the Court should reject claim 1 for three reasons: (1) “[i]t is not cognizable, absent

exceptional circumstances,” because it “is an attack on the sufficiency of the Indictment,

brought in a Section 2255 motion”; (2) “it was raised and lost on appeal”; and (3) it “fails

on the merits.” In his reply, Defendant maintained that the claim “is cognizable because

it is jurisdictional in nature”; that it is cognizable, even if it is not jurisdictional, because

it asserts the indictment affirmatively shows no federal offense was committed; that he

received ineffective assistance of counsel if the claim is not cognizable; that “the Eighth

Circuit did not decide the issue”; and that the claim “should succeed on the merits.”

“[DJefects in an indictment do not deprive a court of its power to adjudicate a

case.” United States v. Cotton, 535 U.S. 625, 630 (2002). Claim 1 is not jurisdictional.

See United States v. Harcevic, 999 F.3d 1172, 1179-80 (8th Cir. 2021); United States v.

Fogg, 922 F.3d 3 89, 391 (8th Cir. 2019); United States v. Frook, 616 F.3d 773, 777-78

(8th Cir. 2010); United States v. Todd, 521 F.3d 891, 895 (8th Cir. 2008).

“A challenge to the sufficiency of an indictment is not cognizable in a section

2255 action without a showing of exceptional circumstances.” United States v. Shabazz,

657 F.2d 189, 190 (8th Cir. 1981) (per curiam); see Houser v. United States, 508 F.2d

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509, 514-15 (8th Cir. 1974). No such circumstances are present. Claim 1 is not

cognizable.2

Finally, Defendant cannot relitigate the indictment’s adequacy in his § 2255

motion. See Sun Bear, 644 F.3d at 702 (“With rare exceptions, § 2255 may not be used

to relitigate matters decided on direct appeal.”), hr affirming the Court’s denial of

Defendant’s motion to dismiss, the Eighth Circuit stated: “Because the facts in the

indictment, accepted as true, describe a fraudulent scheme prohibited by federal law, [he]

cannot succeed in his claim that it is facially insufficient.” Hansmeier, 988 F.3d at 43839. The Court denies Defendant’s § 2255 motion insofar as it is based on claim 1.

Claim 2

Defendant asserted that “the indictment failed to charge [him] with fraud because

it failed to establish the essential element of materiality.” Defendant acknowledged that

the Eighth Circuit rejected this argument in his direct appeal. The United States argued

that claim 2 should be rejected because “[i]t is a noncognizable attack on the sufficiency

of the Indictment,” “it is an attempt to relitigate issues decided against [him] by the

Eighth Circuit,” and “it is conclusively contradicted and belied by the factual stipulations

in [his] plea agreement” and his “testimony under oath at his plea hearing.” In his reply,

Defendant argued that claim 2 is jurisdictional; that it is cognizable, even if it is not

jurisdictional, because it asserts the indictment affirmatively shows no federal offense

Defendant’s conditional assertion that he received ineffective assistance of counsel

has no merit. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). At his change of plea

• hearing, he stated that nobody made him any promises other than what is contained in the

plea agreement.

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was committed; that he received ineffective assistance of counsel if the claim is not

cognizable; that the law of the case doctrine does not apply because the Eighth Circuit

relied on “knowing material misstatements of law and fact” by the United States; and that

the United States conceded the claim on the merits.

For reasons similar to those set forth above, the Court rejects claim 2. The claim

is not jurisdictional. See, e.g., Harcevic, 999 F.3d at 1179-80; Fogg, 922 F.3d at 391. No

exceptional circumstances are present. Claim 2 is not cognizable. Shabazz, 657 F.2d at

190; see Houser, 508 F.2d at 514-15. The Eighth Circuit rejected the claim. Hansmeier,

988 F.3d at 437 (“The info rmation they misrepresented was also material.”). Defendant

cannot relitigate it in his § 2255 motion. Sun Bear, 644 F.3d at 702. His conditional

assertion that he received ineffective assistance of counsel has no merit. The Court

denies Defendant’s § 2255 motion insofar as it is based on claim 2.

Claim 3

Defendant maintain ;d that “the indictment failed to charge [him] with fraud

because it failed to establish that the object of [his] alleged scheme to defraud was money

or property in the hands of the victim.” He claimed that he raised the issue before this

Court and on appeal and that “it has gone unaddressed.” The United States responded

that claim 3 “is not cognizable for the same reasons claims 1 and 2 are not cognizable.”

In his reply, Defendant asserted that claim 3 is jurisdictional; that it is cognizable, even if

it is not jurisdictional, because it asserts the indictment affirmatively shows no federal

offense was committed; that he received ineffective assistance of counsel if the claim is

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not cognizable; that the law of the case doctrine does not apply to the claim; and that the

claim should succeed on the merits.

For reasons similar :o those set forth above, the Court rejects claim 3. The claim

is not jurisdictional. See, e g., Harcevic, 999 F.3d at 1179-80; Fogg, 922 F.3d at 391. No

exceptional circumstances ire present. Claim 3 is not cognizable. Shabazz, 657 F.2d at

190; see Houser, 508 F.2d it 514-15. The Eighth Circuit rejected the claim. Hansmeier,

988 F.3d at 438 (“In sum, tie conduct recounted in the indictment constitutes a ‘scheme

... for obtaining money or property by means of false or fraudulent pretenses,

representations, or promise?.(citation omitted)). Defendant cannot relitigate it in his

§ 2255 motion. Sun Bear, '644 F.3d at 702. His conditional assertion that he received

ineffective assistance of coinsel has no merit. The Court denies Defendant’s § 2255

motion insofar as it is based on claim 3.

Claim 4

Defendant asserted that “the. indictment failed to charge [him] with fraud because,

at most, it alleged that [he] engaged in fraudulent litigation activity.” He maintained that

he “raised this argument in his appeal, but it went unaddressed.” The United States

responded that “[t]he Eighth Circuit rejected this argument in upholding the Indictment,

but did not specifically address [his] argument that civil litigation activities cannot give

rise to a criminal fraud case.” In his reply, Defendant asserted that the.United States

apparently agrees claim 4 “is properly before the Court” and that the claim should

succeed on the merits.

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For reasons similar to those set forth above, the Court rejects claim 4. The claim

challenges the sufficiency of the indictment. No exceptional circumstances are present.

The claim is not cognizable. Shabcizz, 657 F.2d at 190; see Houser, 508 F.2d at 514-15.

After characterizing the indictment as “identifying] two related litigation strategies that

[Defendant and his co-defendant] employed between late 2011 and 2013 and that form

the basis of the government’s fraud allegation,” the Eighth Circuit stated, “Both meet the

elements of a fraudulent scheme.” Hansmeier, 988 F.3d at 437. Later, the court of

appeals stated that “the facts in the indictment, accepted as true, describe a fraudulent

scheme.prohibited by federal law.” Id. at 438-39. Defendant cannot relitigate the issue

here. Sun Bear, 644 F.3d at 702. Insofar as it is based on claim 4, the Court denies

Defendant’s § 2255 motion.

Claim 5

Defendant restated his challenge to the indictment’s sufficiency:

At the change of plea hearing, [Defendant] and

prosecutors went through a script that consisted of a subset of

the facts contained in the indictment. In Claims 1 -4, supra,

[he] identified the essential elements that are missing from the

indictment. Because the indictment failed to establish the

essential elements of the offenses subject to [his] plea, the

subset of the facts presented at the change of plea hearing also

failed to establish the essential elements of [his] offenses.

The United States responded that claim 5 is not cognizable “because it is based upon his

argument that the Indictment should have been dismissed, which he lost in the Eighth

Circuit,” and because the claim is “completely meritless.” In his reply, Defendant

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asserted that claim 5 is cognizable, that he received ineffective assistance of counsel if it

is not cognizable, and that it should succeed on the merits.

Claim 5 challenges the sufficiency of the indictment. No exceptional

circumstances are present. Claim 5 is not cognizable. Shabazz, 657 F.2d at 190; see

Houser, 508 F.2d at 514-15. The Eighth Circuit concluded “the facts in the indictment,

accepted as true, describe a fraudulent scheme prohibited by federal law.” Hansmeier,

988 F.3d at 438-39. Defendant cannot relitigate its conclusion in his § 2255 motion. Sun

Bear, 644 F.3d at 702. His conditional assertion that he received ineffective assistance of

counsel has no merit. The Court denies Defendant’s § 2255 motion insofar as it is based

on claim 5.

Claim 6

Defendant maintained that “the statutes defining the fraud dependent changes in

the indictment (the ‘Challenged Statutes’) violate the First Amendment under the NoerrPennington doctrine.”3 He asserted that the Court should “conclude that, at a minimum,

the Challenged Statutes violate the First Amendment as applied to the first scheme

alleged in the indictment.”4 Defendant stated that he “raised these issues to this Court

and in his appeal”; that the Court “evaluat[ed] the scheme alleged in the indictment as a

United Mine Workers ofAm. v. Pennington, 381 U.S. 657 (1965); E. R.R.

Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).

, 4

The Eighth Circuit observed that the “indictment identifies two related litigation

strategies that [Defendant and his co-defendant] employed between late 2011 and 2013

and that form the basis of the government’s fraud allegation. Both meet the elements of a

fraudulent scheme.” Hansmeier, 988 F.3d at 437.

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single scheme (versus two schemes, as the Eighth Circuit did)” and “held that the

allegations in the indictment triggered the sham exception to Noerr-Pennington

immunity”; and that the Eighth Circuit “did not address [his] argument.” The United

States responded that Defendant “raised this issue in his motion to dismiss before this

Court,” that the Court “ruled against [him],” that “[t]he Eighth Circuit did not reverse or

criticize this Court’s rejection of [his] petition clause argument on direct appeal,” that he

“cannot relitigate the issue in this Section 2255 motion,” and that “the claim is meritless.”

In his reply, Defendant stated that claim 6 is properly before the Court and that the claim

should succeed on the merits.

In denying Defendant’s motion to dismiss, the Court stated that “[c]ourts have

applied the Noerr-Pennington doctrine to bar civil claims outside the antitrust area of

law, including in cases involving civil pre-litigation demand letters”; that Defendant

“cite[d] no authorities for applying the doctrine in criminal cases”; that the cases he cited

“do not support his contention that allowing the prosecution of a fraudulent scheme

would be unconstitutional just because the scheme involves civil litigation”; that “the

activities alleged in the Indictment extend beyond aggressive litigation tactics and include

deceptive, predatory acts”; and that, “[e]ven assuming that the Noerr-Pennington doctrine

applies in the criminal prosecution context, the Court might find that the alleged activities

place [his] civil litigation efforts under the sham exception to that doctrine, thus not

constitutionally protected from prosecution.” On appeal, he asserted that the case against

him criminalized his pursuit of meritorious civil litigation and “threatens to chill the

process of civil litigation.” In affirming the Court’s denial of Defendant’s motion to

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dismiss, the Eighth Circuit stated that his “indictment identifies two related litigation

strategies .. . that form the basis of the government’s fraud allegation,” that “[b]oth meet

the elements of a fraudulent scheme,” and that “the facts in the indictment, accepted as

true, describe a fraudulent scheme prohibited by federal law.” Hansmeier, 988 F.3d at

437-39. The Court rejects Defendant’s attempt to relitigate the rejection of his NoerrPennington arguments. See Sun Bear, 644 F.3d at 702; United States v. Barnes, 585 F.

Supp. 3d 332, 334 (W.D.N.Y. 2022). Insofar as it is based on claim 6, the Court denies

Defendant’s § 2255 motion.

Claim 7

Defendant claimed that “the Challenged Statutes violate the First Amendment as

applied to the first scheme” and that the issue of whether “they violate the First

Amendment as applied to the second scheme does not need to be decided at this stage.”

He maintained that the Challenged Statutes are subject to strict scrutiny because they “are

a content-based restriction on speech, expressive activity, petitioning activity and

associational activity,” and because they “target political speech on issues of public

concern.” According to Defendant, the Challenged Statutes cannot survive strict

scrutiny. The United States asserted that claim 7 is procedurally defaulted and meritless.

In his reply, Defendant argued that the claim is properly before the Court and that it

should succeed on the merits.

Defendant procedurally defaulted claim 7. See Anderson, 25 F.3d at 706. He has

not demonstrated cause to excuse the default. See id.; United States v. Morgan, 230 F.3d

1067, 1071 (8th Cir. 2000). Insofar as Defendant’s 2255 motion is based on claim 7, the

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Court denies the motion. See Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th

Cm 2014).

Claim 8

Defendant asserted that “[t]he Challenged Statutes are void because, as applied to

the first scheme alleged in the indictment, they are ‘(1) so [vague] that they fail to give

ordinary people fair notice of the conduct they punish, or (2) so standardless that they

invite arbitrary enforcement.’” The United States responded that “this new,

constitutional attack on the Indictment cannot be raised in a Section 2255 motion”; that

Defendant “could have raised his vagueness argument on direct appeal, but did not”; that

the claim is apparently a facial challenge to the mail and wire fraud statutes, and the

statutes “have never been invalidated as facially void-for-vagueness”; that the claim, if it

is an “as-applied” challenge, has been “effectively rejected” by this Court and the Eighth

Circuit; and that “[t]he government did not use unconstitutionally vague fraud statutes to

rewrite the law of copyright in this case.” In his reply, Defendant asserted that he did not

procedurally default claim 8, that he received ineffective assistance of counsel if it “is not

properly preserved for review” in his § 2255 motion, and that the claim should succeed

on the merits.

Defendant procedurally defaulted claim 8. See Anderson, 25 F.3d at 706. He has

not demonstrated cause to excuse the default. See id.; Morgan, 230 F.3d at 1071. His

conclusory assertion that he received ineffective assistance of counsel does not excuse his

procedural default. SeeFordv. United States, 983 F.2d 897, 898-99'(8th Cir. 1993). It

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has no merit. The Court denies Defendant’s § 2255 motion insofar as it is based on

claim 8.

Claim 9

Defendant argued that the Challenged Statutes, as applied to him, “impermissibly

intrude upon Congress’ copyright power and the Judiciary’s power to interpret the law.”

“[Accepting the facts on the face of the indictment as true,” he argued, his “statements

and omissions were consistent with the law governing copyright enforcement and judicial

interpretations thereof.” The United States responded that he “failed to raise this

constitutional argument on appeal, and it is not cognizable in this Section 2255

proceeding”; that the claim “effectively argues that the Indictment does not state an

offense,” an issue resolved adversely to him by the court of appeals; and that the claim is

meritless. In his reply, Defendant stated that the issue of “[wjhether Claim 9 is properly

before the Court as a standalone claim is unimportant to [him]” and that the claim should

succeed on the merits.

Defendant procedurally defaulted claim 9. See Anderson, 25 F.3d at 706. He has

not demonstrated cause to excuse the default. See id.-, Morgan, 230 F.3d at 1071. The

claim challenges the sufficiency of the indictment. No exceptions circumstances are

presented. The claim is not cognizable. Shabazz, 657 F.2d at 190; see Houser, 508 F.2d

at 514-15. The Eighth Circuit Concluded “the facts in the indictment, accepted as true,

describe a fraudulent scheme prohibited by federal law.” Hansmeier, 988 F.3d at 438-39.

Defendant cannot relitigate its conclusion in his § 2255 motion. Sun Bear, 644 F.3d at

702. The Court denies Defendant’s § 2255 motion insofar as it is based pn claim 9.

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Claim 10

Defendant claimed that prosecutors violated his rights under the Fifth and Sixth

Amendments by making material misstatements and omissions. Throughout these

proceedings, prosecutors have, according to Defendant, misstated copyright law,

concealed appellate decisions, and misrepresented the merits of the claims he pursued.

The United States responded that claim 10 is “preposterous,” that “[t]he government did

not mislead the Court,” and that the allegedly concealed cases were cited by Defendant

himself. In his reply, Defendant maintained that claim 10 is properly before the Court

and should succeed on the merits.

For the reasons set forth in the discussion of claim 12, Defendant’s conclusory

assertion in claim 10 that “prosecutors’ misrepresentations and omissions deprived [him]

of the effective assistance of counsel” has no merit. Insofar as Defendant asserted the

denial of effective assistance of counsel in claim 10, the Court denies his § 2255 motion.

Defendant asserted that he “corrected prosecutors’ misunderstanding of copyright

: law” in his motion to dismiss and “[i]n his opening appellate brief.” The allegedly

concealed cases were disclosed in memoranda that he filed. Defendant’s argument that

the government’s alleged misstatements and omissions violated his rights under the Fifth

Amendment essentially asserts that the Court erroneously denied his motion to dismiss

and that the Eighth Circuit erroneously concluded that “the facts in the indictment,

accepted as true, describe a fraudulent scheme prohibited by federal iaw.” Hansmeier,

988 F.3d at 438-39; cf. id. at 437-38 (“And the courts’ skepticism about Hansmeier and

Steele’s level of personal involvement and financial interest in the litigation would have

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been likely even if, as Hansmeier argues, their claims did involve actionable copyright

infringement.”). Defendant cannot relitigate the Eighth Circuit’s conclusion. See Sim

Bear, 644 F.3d at 702. The Court denies his § 2255 motion insofar as it is based on

claim 10.

Claim 11

Defendant asserted that the Court should not have presided over his criminal case

because it presided over Five civil actions “described in the first5 scheme alleged in the

indictment,” Defendant maintained that the Court “would reasonably be perceived as a

victim of the first scheme alleged in the indictment” (capitalization removed) and that,

even if the Court was not a victim, it was a material witness and would have been called

to testify at trial. The United States responded that Defendant “cannot raise for the first

time in this Section 2255 motion his assertion that this Court was not impartial”; that

“[h]e could have raised this issue directly with the Court during the pendency of his case

and he could have raised it on appeal”; and that the Court was not required to recuse.

“[M]ost matters relating to judicial disqualification [do] not rise to a constitutional

level.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (second alteration in

original) (quoting FTC v. Cement Inst, 333 U.S. 683, 702 (1948)). If claim 11 is not

constitutional, Defendant cannot raise it in his § 2255 motion because he could have

raised it on direct appeal but did not. See Anderson, 25 F.3d-at 706. Even if claim 11 is

constitutional, Defendant has not excused his procedural default. See id. The Court

denies Defendant’s § 2255 motion insofar as it is based on claim 11.

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Claim 12

Defendant contended that “[prosecutors’ material misstatements and omissions

constructively denied [him] the effective assistance of counsel.” He claimed that

“prosecutors misled [his] counsel regarding the law of copyright enforcement”; that,

“[f]or some period of time, [his] counsel were unaware that prosecutors were fabricating

counsel] could not have provided [him] with effective assistance”; that “prosecutors’

failure to correct their false statements of law required [his] counsel to devote [scarce]

briefing resources towards providing prosecutors and the Court with remedial instructions

regarding the law of copyright enforcement”; that, “once it became clear that the

prosecutors’ deception was successful, there was nothing [his] counsel could do but

advise [him] to plead guilty to charges he was innocent of’; and that “prosecutors’ theory

of fraud created a conflict of interest between [him] and his counsel.” Defendant

explained that “[t]he centerpiece of prosecutors’ first scheme was that [he], as an

attorney, committed fraud by alleging that defendants to his claims had downloaded

copyrighted works ‘without authorization’” and that the government’s “theory of fraud

forced [his] counsel into a position where they had two choices: (1) resist the prosecutors’

misapprehension of the law of copyright enforcement and face fraud charges of their

own; or (2) bypass such arguments or pursue such arguments less zealously than they

might have in the absence of a conflict.” The United States responded that Defendant’s

claim of constructive denial of the effective assistance of counsel is meritless because his

“arguments about government ‘fraud’ in this case are completely meritless.” In his reply,

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Defendant stated that “[t]he Government’s response is limited to a syllogism that if Claim

10 is meritless, then so too is Claim 12”; and that his “counsel had substantially less

resources to spend defending [his] interests” because “the Government was unable to be

honest about the law of copyright enforcement.”

Defendant was represented by appointed counsel in this Court and on appeal.

Through appointed counsel, Defendant filed a motion to dismiss the indictment, filed a

60-page memorandum of law in support of the motion, objected to the recommended

denial of the motion, and prepared for trial. With appointed counsel, Defendant

conditionally pleaded guilty to two counts, appealed, and unsuccessfully petitioned for a

writ of certiorari. Defendant’s claim of constructive denial of the effective assistance of

counsel has no merit. See Raymond v. Weber, 552 F.3d 680, 684-85 (8th Cir. 2009);

Freeman v. Graves, 317 F.3d 898, 901 (8th Cir. 2003). The Court denies Defendant’s

§ 2255 motion insofar as it is based on claim 12.

Claim 13

Defendant claimed that “[t]he Challenged Statutes violate the First Amendment as

applied to [his] litigation activity under the test established in Bruen.”5 In Bruen, the

Supreme Court held “that the Second and Fourteenth Amendments protect an

individual’s right to carry a handgun for self-defense outside the home.”. 142 S. Ct. at

2122. According to Defendant, the Supreme Court “announced a new test for assessing

restrictions on enumerated constitutional rights” in Bruen. After “reiterating] . .. the

N.Y. State Rifle & Pistol Ass % Inc. v. Bruen, 142 S. Ct. 2111 (2022).

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standard for applying the Second Amendment,” the Supreme Court stated that “[t]his

Second Amendment standard accords with how we protect other constitutional rights”:

■ Take, for instance, the freedom of speech in the First

Amendment, to which Heller repeatedly compared the right

to keep and bear arms. In that context, “[w]hen the

Government restricts speech, the Government bears the

burden of proving the constitutionality of its actions.” In

some cases, that burden includes showing whether the

expressive conduct falls outside of the category of protected

speech. And to carry that burden, the government must

generally point to historical evidence about the reach of the

First Amendment’s protections.

Id. at 2129-30 (alteration in original) (citations omitted).6 Defendant maintained that the

“[t]he plain text of the petition clause covers petitioning the courts for relief,” that “the

government must justify the Challenged Statutes by demonstrating that the application of

the Challenged Statutes to [his] petitioning activity is consistent with the Nation’s

historical tradition of regulating litigation conduct,” and that “[t]he government has no

chance of doing so.”

The United States responded that Defendant “continues to mischaracterize the

nature of his fraud convictions as being based on his legitimate civil litigation tactics”;

that he “was convicted of executing a scheme to defraud”; that “[h]e used litigation as

part of his scheme, but he was not convicted of filing lawsuits”; that the mail and wire

fraud statutes do not restrict his “access to courts in any way”; and that “Bruen has no

application whatsoever to this context.” The United States maintained that claim 13 “is

simply a repackaging of the arguments [he] presented on appeal”; that, “on appeal, [he]

District of Columbia v. Heller, 554 U.S. 570 (2008).

- CASE 0:16-cr-00334-JNE-KMM Doc. 283 Filed 05/09/23 Page 19 of 32

argued that the charges against him criminalized his right to bring lawsuits”; that “his

arguments fell flat because his scheme involved much more than bringing lawsuits—it

involved concocting ‘fake evidence’ ..., and it involved making material lies and

omissions to victims to pressure them under false pretenses to pay a so-called

‘settlement’ fee”; that “courts have not immunized litigation from fraud charges”; that

“Bruen does nothing to change that”; and that he “cannot circumvent the relitigation bar

simply by repackaging tired claims and citing an inapplicable Supreme Court case.”

, In his reply, Defendant asserted that “[t]he government’s arguments can be

ignored because they are irrelevant to the Bruen framework,” that “it is irrelevant whether

[his] litigation tactics were ‘legitimate’ in a federal prosecutor’s view,” and that “the

Challenged Statute [s’] criminalization of the litigation activity in this case violates the

First Amendment.” If the United States’ assertion that the Challenged Statutes do not

restrict his access to courts is true, he wondered why he has been imprisoned. Defendant

maintained that “presenting evidence and engaging in settlements are ordinary parts of

bringing lawsuits,” that courts have immunized litigation from fraud charges, and that the

relitigation bar does not apply.

Defendant’s claim that “[t]he Challenged Statutes violate the First Amendment as

applied to [his] litigation activity under the test established in Bruen” merely

recharacterizes his previously rejected claim that the indictment is based on a

constitutionally invalid theory. “A rejected claim does not merit rehearing on a different,

but previously available, legal theory.” United States v. Nyhuis, 211 F.3d 1340,1343

CASE 0:16-cr-00334-JNE-KMM Doc.283 Filed 05/09/23 Page 20 of 32

(11th Cir. 2000). The Court denies Defendant’s § 2255 motion insofar as it is based on

claim 13.

Claim 14

Defendant characterized “the first litigation strategy alleged in the indictment and

discussed in the Eighth Circuit’s opinion, i.e., the copyright trolling strategy,” as “a pure

fraud by omission scheme.” He maintained that “[t]he indictment failed to charge [him]

with omitting information that he was under a duty to disclose.” “As a result of this

failure,” he continued, “the indictment fails to charge fraud, this Court lacks jurisdiction

and [his] constitutional rights were violated in this proceeding.” The United States

responded that claim 14 is “barred by the relitigation doctrine”; that Defendant

“mischaracterizes his scheme and focuses on a single component rather than the scheme

as a whole”; and that Defendant “misconstrues the nature of the scheme by characterizing

it as one of omission, even if he were not barred from relitigating this attack.” In his

reply, Defendant contended that “the government resorts to mischaracterizing the first

litigation strategy as something more than fraud by omission,” that “the Eighth Circuit

did not consider the ‘duty to disclose’ issue,” that “the Eighth Circuit only considered the

facts alleged in the indictment,” and that “[t]he government does not contest [his] point

that this issue is jurisdictional.”

Claim 14 is not jurisdictional. See, e.g., Harcevic, 999 F.3d at 1179-80; Fogg, 922

F.3d at 391. It is not cognizable. Shabazz, 657 F.2d at 190; see Houser, 508 F.2d at 51415. After stating that the “indictment identifies two related litigation strategies that

[Defendant and his co-defendant] employed between late 2011 ,and 2013 and that form

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the basis of the government’s fraud allegation,” the Eighth Circuit stated, “Both meet the

elements of a fraudulent scheme.” Hansmeier, 988 F.3d at 437. Later, the court of

appeals concluded that “the facts in the indictment, accepted as true, describe a fraudulent

scheme prohibited by federal law.” Id. at 438-39. Defendant cannot relitigate the issue

here. Sun Bear, 644 F.3d at 702. Insofar as it is based on claim 14, the Court denies

Defendant’s § 2255 motion.

Claim 15

Defendant asserted that his sentence exceeds the statutory maximum. Citing

United States v. R.L.C., 915 F.2d 320 (8th Cir. 1990), he maintained that he was

convicted of Class C offenses and that, according to 18 U.S.C. § 3581(b), the statutory

maximum sentence for a Class C offense is 12 years. Asserting that Defendant ignored

18 U.S.C. § 3559(b), which states that “an offense classified under subsection (a) carries

all the incidents assigned to the applicable letter designation, except that the maximum

term of imprisonment is the term authorized by the law describing the offense,” the

United States responded that claim 15 is “meritless.” The government’s response is apt:

claim 15 has no merit. See, e.g., United States v. Simpson, 796 F.3d 548, 552-53 (5th Cir.

2015); Taylor v. Fikes, Case No. 20-cv-1364, 2021 WL 363855, at *4 &n.6 (D.Minn.

Feb. 3, 2021) fR.L.C. interpreted the juvenile-delinquency statute, 18 U.S.C. § 5037(c),

and is not instructive on the inteiplay between § 3559 and § 3581. In fact, the Eighth

Circuit stated in R.L.C. that § 3559(b) establishes ‘that no matter what letter classification

an offense is given, the maximum term of imprisonment a judge can impose is the term

listed in the statute defining the offense! For Taylor, that term is 20 years.” (citation

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omitted)). Insofar as it is based on claim 15, the Court denies Defendant’s § 2255

motion.

Claim 16

Defendant asserted that the Department of Justice exceeded its authority under the

mail and wire fraud statutes. He relied on West Virginia v. EPA, 142 S. Ct. 2587 (2022),

which considered “whether the ‘best system of emission reduction’ identified by EPA in

the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of

the Clean Air Act.” 142 S. Ct. at 2615-16. “[T]he answer,” the Supreme Court stated,

“is no.” Id. at 2616. Defendant relied on the Supreme Court’s statement that “something

more than a merely plausible textual basis for the agency action is necessary” in “certain

extraordinary cases.” Id. at 2609. The United States responded that Defendant “failed to

exhaust this claim by raising it sooner” and that he “has not attempted to overcome that

procedural default.” The United States also argued that West Virginia v. EPA “has no

application to this context.” In his reply, Defendant asserted that “[t]he procedural

default doctrine has no application to the jurisdictional error asserted in Claim 16.” He

also asserted that “the Supreme Court has applied the [major questions] doctrine to the

Attorney General.”

Claim 16 is not jurisdictional. See Harcevic, 999 F.3d at 1179-80. Defendant

procedurally defaulted it. See Anderson, 25 F.3d at 706. He has not demonstrated cause

to excuse the default. See id. Insofar as it is based on claim 16, the Court denies

Defendant’s § 2255 motion.

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Claim 17

Defendant maintained that “[t]he judgment of conviction should be vacated

because the Court failed to adjudicate all of the issues in [his] criminal proceeding,

rendering the judgment of conviction void.” According to Defendant, “[a] review of the

record reveals that the Court did not adjudicate all of the issues raised in [his] motion to

dismiss the indictment.” “Because the [C]ourt did not address these claims,” he argued,

“the judgment of conviction is a non-final judgment and the Court has no discretion but

to vacate the judgment and consider the unresolved claims.” The United States

responded that claim 17 is “not cognizable in a § 2255 motion” because Defendant “does

not seek to be released or to be resentenced,” that claim 17 “fails on procedural default

grounds,” and that claim 17 “fails on the merits.” In his reply, Defendant asserted that he

is seeking to be released in claim 17, that “[t]he procedural default doctrine has no

application to jurisdictional attacks,” that “there has been no ruling on [certain]

substantial issues.”

Claim 17 has no merit. Defendant moved to dismiss the indictment. The Court

denied the motion. Defendant conditionally pleaded guilty to counts 1 and 17. See Fed.

R. Crim. P. 11(a)(2); Harcevic, 999 F.3d at 1180 n.4; United States v. Limley, 510 F.3d

825, 827 (8th Cir. 2007). The Court imposed a 168-month sentence. “Final judgment in

a criminal case means sentence. The sentence is the judgment.” Burton v Stewart, 549

U.S. 147, 156 (2007) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). The

Court denies Defendant’s § 2255 motion insofar as is it based on claim 17.

CASE 0:16-cr-00334-JNE-KMM Doc.283 Filed 05/09/23 Page 24 of 32

Claim 18

Defendant argued that the government engaged in outrageous conduct. He

' asserted that “counsel for the government used the mails and wires to obtain money from

[him] (in the form of a restitution judgment, MYRA payment and other money) using a

series of planned, material misrepresentations and omissions to the Court and the Eighth

Circuit.” He offered the following examples: “counsel lied and told this Court and the

Eighth Circuit that courts started dismissing [his] copyright enforcement claims and

sanctioning him once they learned of [his] use of the Olan Mills copyright enforcement

method and his interest in his clients”;7 “counsel resorted to entirely fabricated statements

of the law of copyright enforcement and attorney duties in copyright enforcement

litigation”; “[t]he government concealed the essential elements of mail and wire fraud

from the Court, including the Eighth Circuit’s decision in Jain, and concealed [its]

knowledge that the indictment does not even meet these elements”;8 the government

concealed “obvious ... constitutional problems with [its] theory of fraud”; and “[t]he

government constructed a theory of fraud based on an entirely botched theory of the law

of copyright enforcement and failed to come clean once [its] error was exposed.” The

United States responded that his claim of outrageous government conduct “is

procedurally defaulted,” that the claim fails on the merits, and that “there was no

government misconduct.-’ In his reply,-Defendant asserted that “the government’s

Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345 (8th Cir. 1994).

United States v. Jain, 93 F.3d 436 (8th Cir. 1996).

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scheme to defraud is ongoing” and that “[procedural default has no application to

conduct that postdates the appeal.” He claimed that “[t]he government’s resort to

criminal activity to obtain and defend a conviction is the most serious misconduct

imaginable,” disputed the government’s denial of his claim that it lied, took issue with the

United States’ reference to the adversarial system of adjudication, and maintained the

decisions of this Court and the Eighth Circuit “would have come out differently had the

government refrained from conduct that the Court has deemed to be fraud.”

“Outrageous government conduct that shocks the conscience can require dismissal

of a criminal charge, but only if it falls within the narrow band of the most intolerable

government conduct.” United States v. Morse, 613 F.3d 787, 792-93 (8th Cir. 2010)

(quoting United States v. Boone, 437 F.3d 829, 841 (8th Cir. 2006)); see United States v.

Williams, 720 F.3d 674, 686 (8th Cir. 2013) (“[T]he level of outrageousness needed to

prove a due process violation is quite high, and the government’s conduct must shock the

conscience of the court.” (quoting United States v. King, 351 F.3d 859, 867 (8th Cir.

2003))). Defendant was aware of the government’s alleged misconduct when he

appealed. He procedurally defaulted claim 18. See Anderson, 25 F.3d at 706; cf. United

States v. Henderson-Durand, 985 F.2d 970, 973 (8th Cir. 1993) (“We believe that on thefacts here presented, Arnold’s failure to raise the outrageous government conduct claim

until his posttrial motions constitutes waiver of that claim.”). Defendant has not

demonstrated cause to excuse the default. See Anderson, 25 F.3d at 706. The claim

essentially asserts that the Eighth Circuit erroneously concluded that “the facts in the

indictment, accepted as true, describe a fraudulent scheme prohibited by federal law.”

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Hansmeier, 988 F.3d at 438-39. Defendant cannot relitigate its conclusion here. Sun

Bear, 644 F.3d at 702. Insofar as Defendant’s 2255 motion is based on claim 18, the

Court denies the motion.

HI.

Request for Judicial Notice

Defendant filed a request for judicial notice. Insofar as he asked the Court to take

judicial notice of the records of this case, the records of the Eighth Circuit in his appeal,

and Jain, the Court grants the request. See Mclvor v. Credit Control Servs., Inc., 773

F.3d 909, 914 (8th Cir. 2014); United States v. Jackson, 640 F.2d 614, 617 (8th Cir.

1981). The request is otherwise denied. See Fed. R. Evid. 201(c)(2); Taylor, 2021 WL

363855, at *5,

IV.

Motion to Expand the Record

Citing Rule 7 of the Rules Governing Section 2255 Proceedings for the United

States District Courts, Defendant moved to expand the record with an excerpt of an

attorney profile from the website of a law firm. The excerpt contains a description of this

case. Because the record conclusively shows that Defendant is not entitled to relief, the

Court denies his motion to expand the record.

Motion for Leave to Take Discovery

Citing Rule 6 of the Rules Governing Section 2255 Proceedings for the United

States District Courts, which provides that “[a] judge may, for good cause, authorize a

party to conduct discoveiy,” Defendant sought authorization “to propound one

interrogatory to the U.S. Attorney for the District of Minnesota.” The proposed

interrogatory states: “Identify via legal citation all cases in which Hansmeier was

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sanctioned or his claims were dismissed because he failed to disclose his investigative

methods or his financial interest in the plaintiff.” Defendant asserted that “[t]he

requested discovery is relevant to Claims 10 and 18.” According to Defendant, in

holding that the first litigation strategy satisfied the materiality requirement, the Eighth

Circuit “relied exclusively on the government’s representation that courts sanctioned

[him] and dismissed his claims when they learned that about [his] investigative methods

and financial interest in the plaintiff.”

“The ‘good cause’ that authorizes discovery under Rule 6(a) requires a showing

‘that the petitioner may, if the facts are fully developed, be able to demonstrate that he is

... entitled to [habeas] relief.’” Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009)

(alteration in original) (quoting Bracy v. Gramley, 520 U.S. 899, 909 (1997)) (applying

Rule 6(a) of the Rules Governing Section 2254 Proceedings for the United States DistrictCourts). Defendant mischaracterized the Eighth Circuit’s opinion. See Hansmeier, 988

F.3d at 437-38. He has not demonstrated “good cause” to authorize discovery. The

Court denies Defendant’s motion for leave to take discovery.

VI.

Limited Motion to Disqualify

Defendant “move[d] the Court to disqualify itself from deciding Claims 10 and

18.” See 28 U.S.C. § 455. He relied on § 455(b)(1), which requires disqualification if

the judge has “personal knowledge of disputed evidentiary facts concerning the

proceeding”; on § 455(b)(5)(iv), which requires disqualification if the judge “[i]s to the

judge’s knowledge likely to be a material witness in the proceeding”; and on § 455(a),

CASE 0:i6-cr-00334-JNE-KMM Doc.283 Filed 05/09/23 Page 28 of 32

which requires disqualification “in any proceeding in which [the judge’s] impartiality

might reasonably be questioned.”

Defendant filed the limited motion to disqualify several months after he moved to

amend his § 2255 motion by adding claims 13-18. The limited motion to disqualify is

untimely, see United States v. Rnbashkin, 655 F.3d 849, 858 (8th Cir. 2011), and

meritless.

Relying on § 455(b)(1), Defendant maintained that “[t]he Court has personal

knowledge of whether [the government’s alleged] misstatements and omissions were

material to it and must recuse itself from deciding” claims 10 and 18. The Court need not

disqualify itself: ‘“personal knowledge’ must arise outside of the judicial function.”

United States v. Carlton, 534 F.3d 97, 101 & n.4 (2d Cir. 2008).

Next, Defendant asserted that claims 10 and 18 require an evidentiary hearing and

that “[t]he Court cannot preside over an evidentiary hearing at which it will be the key

witness.” Notwithstanding Defendant’s assertion, an evidentiary hearing is not required.

No showing has been made that the Court is “likely to be a material witness in the

proceeding.” Disqualification under § 455(b)(5)(iv) is not required. See United States v.

Rivera, 802 F.2d 593, 601 (2d Cir. 1986).

Finally,.Defendant asserted that disqualification under § 455(a) is required

because the Court identified Andrew Luger as co-counsel in a case tried approximately

30 years ago in a list of significant litigated matters submitted to the Senate Judiciary

Committee. According to Defendant, “Luger’s role in the Court’s confirmation to the

federal bench gives rise to a political and professional debt.” Defendant continued:

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“Luger is one of the attorneys whom [Defendant] alleges has lied to the Court; indeed, as

the U.S. Attorney who brought charges against [Defendant], Luger is the architect of the

government’s case. The Court’s political and professional debt to Luger would cause an

ordinary person to question the Court’s partiality.”

“Recusal is within the sound discretion of the district court, and that decision is

reviewed for an abuse of discretion. The test for recusal is ‘whether the judge’s

impartiality might reasonably be questioned by the average person on the street who

knows all of the relevant facts of a case.’” United States v. Aldridge, 561 F.3d 759, 764

(8th Cir. 2009) (citations omitted). Disqualification is not warranted based on the

identification of Mr. Luger as co-counsel in the case tried approximately 30 years ago in

the list that was submitted to the Senate Judiciary Committee, Mr. Luger’s position as

U.S. Attorney when Defendant was prosecuted, and Defendant’s allegations that the

government made misstatements and omissions during its prosecution of him. See

United States v. Mendoza, 468 F.3d 1256, 1263 (10th Cir. 2006). The Court denies

Defendant’s limited motion to disqualify.

VII.

Motion for an Evidentiary Hearing

Defendant moved for an evidentiary hearing. Because the record conclusively

shows that Defendant is not entitled to relief, the Court denies the motion. See Thomas,

737 F.3d at 1206.

VJUUL Motion to Alter or Amend

Defendant filed a motion for a preliminary injunction in his criminal case. Noting

that he is subject to a filing restriction and citing Devose v. Herrington, 42 F.3d 470 (8th

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Cir. 1994) (per curiam), the Court denied the motion. Defendant filed a motion to alter or

amend under Rule 59(e) of the Federal Rules of Civil Procedure. His assertion that the

Court manifestly erred in denying his motion for a preliminary injunction has no merit.

The Court denies his motion to alter or amend.

EX.

Motion for a Hearing Under Fed. R. Evid. 201(e)

Defendant moved for a hearing on the propriety of taking judicial notice of the

filing restriction, see Fed. R. Evid. 201(e), and for “an order refusing to take judicial

notice” of the filing restriction. No hearing is necessaiy. See Amadasu v. Christ Hosp.,

514 F.3d 504, 508 (6th Cir. 2008). Through his written submissions, Defendant has been

heard. The Court denies the motion.

Certificate of Appealability

An appeal cannot be taken from a final order denying a motion under § 2255

without a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App.P.

22(b)(1). A com! cannot issue a certificate of appealability unless the applicant has made

a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

“Where a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district

court denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a [certificate of appealability] should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

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Doc. 283 Filed 05/09/23 Page 31 of 32

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Here,

Defendant has not shown that reasonable jurists would find the rejection of his claims

debatable or wrong. Thus, the Court declines to issue a certificate of appealability.

XI.

Conclusion

Based on the files, records, and proceedings herein, and for the reasons stated

above, IT IS ORDERED THAT:

Defendant’s motion to amend [Docket No. 248] is GRANTED.

Defendant’s motions to amend [Docket Nos. 235 & 239] -are DENIED AS

MOOT.

Defendant’s § 2255 motion [Docket No. 209], as amended to include

claims 1-18, is DENIED.

Defendant’s request for judicial notice [Docket No. 268] is GRANTED IN

PART and DENIED IN PART.

Defendant’s motion to expand the record [Docket No. 273] is DENIED.

Defendant’s motion for leave to take discovery [Docket No. 274] is

DENIED.

Defendant’s limited motion to disqualify [Docket No. 275] is DENIED.

8. .

Defendant’s motion for an evidentiary hearing [Docket No. 276] is

DENIED.

Defendant’s motion to alter or amend [Docket No. 278] is DENIED.

10.

Defendant’s motion for a hearing under Fed. R. Evid. 201(e) [Docket

No. 279] is DENIED.

CASE 0:16-cr-00334-JNE-KMM Doc. 283 Filed 05/09/23 Page 32 of 32

11.

A certificate of appealability is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 9, 2023

s/Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

CASE 0:16-cr-00334-JNE-KMM Doc.76 Filed 09/08/17 Page 1 of 6

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 16cr334 (JNE/KMM) (1)

ORDER

PAUL R. HANSMEIER,

Defendant.

The Indictment in this criminal case against Defendant Paul R. Hansmeier charges him in

18 counts, including one count of conspiracy to commit mail fraud and wire fraud, five counts of

mail fraud, ten counts of wire fraud, one count of conspiracy to commit money laundering, and

one count of conspiracy to commit and suborn perjury. Hansmeier moves pursuant to Federal

Rule of Criminal Procedure 12(b) to dismiss the Indictment in all counts except the perjury

count. Dkt. No. 48; see also Def.’s Br. 4 n.l, Dkt. No. 49. After holding a hearing on the

motion, in a Report and Recommendation dated July 24, 2017, Dkt. No. 66 (“R&R”), the

Honorable Katherine Menendez, United States Magistrate Judge, recommended denying

Hansmeier’s motion. Hansmeier objected to the Report and Recommendation. Dkt. No. 73

(“Objs.”). The Government responded to Hansmeier’s objections. Dkt. No. 75. The Court must

determine de novo any part of the Report and Recommendation that has been properly objected

to. D. Minn. L.R. 72.2(b)(3); see also 28 U.S.C. § 636(b)(1).

First, Hansmeier objects that the Report and Recommendation’s statement of the relevant

standard for deciding the motion to dismiss was incomplete, because the indictment must allege

facts with more particularity than usual. “An indictment is normally sufficient if its language

tracks the statutory language.” United States v. Steffen, 687 F.3d 1104, 1113 (8th Cir. 2012)

(quoting United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008)). “However, where an

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indictment alleges a scheme to defraud under the bank, mail, or wire fraud statutes,” as in this

case, “it must specify facts ‘not merely in the general words of the statute, but with such

reasonable particularity ... as will... apprise [the defendant], with reasonable certainty, of the

nature of the accusation . . . and as will enable the court to say that the facts stated are sufficient

in law to support a conviction.” Id. (quoting Brown v. United States, 143 F. 60, 62 (8th Cir.

1906)). In other words, the indictment should “describe the scheme or artifice to defraud which

had been devised, with such certainty as would clearly inform the defendants of the nature of the

evidence to prove the existence of the scheme to defraud, with which they would be confronted

at the trial.” Id. (quoting Stewart v. United States, 119 F. 89, 94 (8th Cir. 1902)). Hansmeier

asserts that the Indictment in this case is amorphous and does not clearly set forth any theory of

fraud. To the contrary, as recounted in detail in the Report and Recommendation, see R&R 2-4,

the Indictment is replete with factual allegations describing the scheme allegedly deployed by

Hansmeier and his co-defendant John L. Steele.

The allegations, which must be accepted as true on a motion to dismiss, see Steffen, 687

F.3d at 1107 n.2, can be briefly summarized as follows. See, e.g., Ind’t fflf 17-24. Beginning in

2011, Hansmeier and Steele caused pornographic videos, as to which sham entities that they

controlled owned copyrights, to be uploaded to a website that they knew was used for file

sharing, BitTorrent. They then applied to federal courts around the country for early, ex parte

discovery in order ascertain the likely identities of persons who downloaded the files that had

been uploaded at Hansmeier and Steele’s direction. In moving for early discovery, the

defendants knowingly made or caused to be made to the courts multiple misrepresentations and

statements that were misleading by omission in order to obtain the desired information through

court-approved subpoenas. And once they had obtained individuals’ personal information,

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Hansmeier and Steele sent letters to the individuals threatening to bring and pursue civil

settlement fees quickly. These allegations, which are pleaded in much greater detail in the

Indictment, sufficiently inform Hansmeier of the nature of the proof the Government will seek to

offer at trial.

Next, Hansmeier objects that the facts alleged fail to state a legally cognizable criminal

fraudulent charge. His primary tactic is to isolate particular allegations and argue that, viewed

alone, an alleged act is not fraudulent or illegal. The Court agrees with the Magistrate Judge’s

decision to view the allegations as a whole in evaluating the sufficiency of the Indictment. Cf.

United States v. Boykin, 794 F.3d 939, 946 (8th Cir. 2015) (noting that “an indictment’s

sufficiency should be judged by practical, and not by technical, considerations”) (citation and

internal punctuation omitted). Hansmeier cites no authority for the theory that every step in a

scheme to defraud must be illegal or objectionable. To the contrary, although a scheme to

defraud “must involve some sort of fraudulent misrepresentations or omissions reasonably

calculated to deceive persons of ordinary prudence and comprehension,” it “need not be

fraudulent on its face.” United States v. Goodman, 984 F.2d 235, 237 (8th Cir. 1993) (citation

omitted); 8th Cir. Crim. Jury Instr. § 6.18.1341 (2014); see also United States v. Bishop, 825

F.2d 1278, 1280 (8th Cir. 1987) (rejecting defendants’ characterization of their actions as mere

“hard bargaining” and finding that the indictment alleged acts that could constitute a fraudulent

scheme within the meaning of the mail fraud statute). And as to the conspiracy allegations, it is

well established that acts in furtherance of a conspiracy need not be illegal acts. See, e.g., United

States v. Donahue, 539 F.2d 1131, 1136 (8th Cir. 1976) (“[A]n overt act performed in order to

effect the object of a conspiracy may be perfectly innocent in itself. Obviously, the successful

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carrying out of a conspiracy to defraud by use of the mails . .. may involve the commission of a

number of acts of various kinds and having different purposes . . .

Hansmeier further objects that the allegations cannot state a claim based on fraud because

the alleged misstatements to the courts could not be material to the individuals’ decisions to

settle. He does not cite any binding precedent for the proposed rule that a misrepresentation

directed to a third party cannot be material when another is harmed, and at oral argument he

conceded that Eighth Circuit case law does not recognize such a rule. See Tr. 29:17-30:16, Dkt.

No. 65. The Court concurs in the Magistrate Judge’s rejection of that argument. See R&R 12.

Similarly, Hansmeier objects that the people who paid out settlement fees were not defrauded

because they knew that they did download the file as accused in the letters sent by Hansmeier

and his associates, and they willingly decided to settle the case rather than face litigation. This

objection fails because, first, the Indictment alleges that Hansmeier and his associates made

misleading statements directly to these individuals. Second, again, explicit misrepresentations

made directly to the victims are not a necessary element of mail or wire fraud. See, e.g., Steffen,

687 F.3d at 1112-13. In addition, this argument appears to assume facts not alleged in the

Indictment.

Hansmeier also objects to the Magistrate Judge’s rejection of his theory that it violates

the Constitution to prosecute a person for “bringing meritorious litigation.” Objs. 13. The

Magistrate Judge correctly rejected Hansmeier’s broader argument that a criminal prosecution

may not be based on civil litigation activity. See R&R 7-9. To the extent that the Report and

Recommendation did not specifically reject the argument that such a prosecution would be

unconstitutional, such an omission was not error. Hansmeier cites several cases establishing as a

general matter the right to access the courts. Objs. 13-14; see Christopher v. Harbury, 536 U.S.

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403, 413-15 (2002) (describing two categories of claims for denial of access to courts); Prof.

Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56-57 (1993)

(recognizing, in the antitrust context, under the so-called Noerr-Pennington doctrine, the right to

file lawsuits that may interfere with competition as long as the litigation is not a “sham”);

NAACP v. Button, 371 U.S. 415, 429 (1963) (recognizing the right to pursue litigation efforts to

enforce civil rights). Courts have applied the Noerr-Pennington doctrine to bar civil claims

outside the antitrust area of law, including in cases involving civil pre-litigation demand letters.

See Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 645 (9th Cir. 2009) (discussing Sosa v.

DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006)); Select Comfort Corp. v. Sleep Better Store, LLC,

838 F. Supp. 2d 889, 896 (D. Minn. 2012) (collecting cases). But Hansmeier cites no authorities

for applying the doctrine in criminal cases. The cases cited by Hansmeier do not support his

contention that allowing the prosecution of a fraudulent scheme would be unconstitutional just

because the scheme involves civil litigation. He urges that the possibility of criminal prosecution

for aggressive civil litigation techniques could chill access to the courts. But although criminal

prosecution for perjury in civil litigation could likewise arguably chill civil litigants’ use of the

courts, he sensibly does not challenge perjury prosecutions as unconstitutional. Cf. Nix v.

Whiteside, 475 U.S. 157, 173 (1986) (“Whatever the scope of a constitutional right to testify, it is

elementary that such a right does not extend to testifying falsely."). Nor does he convincingly

explain why prosecuting a charge other than perjury should alter the constitutional analysis.

Further, the activities alleged in the Indictment extend beyond aggressive litigation tactics and

include deceptive, predatory acts, including alleged fraud on the courts. Even assuming that the

Noerr-Pennington doctrine applies in the criminal prosecution context, the Court might find that

the alleged activities place Hansmeier’s civil litigation efforts under the sham exception to that

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doctrine, thus not constitutionally protected from prosecution. See Porous Media Corp. v. Pall

Corp., 186 F.3d 1077, 1080 n.4 (8th Cir. 1999) (“Only ‘sham’ lawsuits fall outside the NoerrPennington cloak of immunity, that is, ‘only where a defendant’s resort to the courts is

accompanied or characterized by illegal and reprehensible practices such as perjury, fraud,... or

misrepresentation, or is so clearly baseless as to amount to an abuse of process......’”) (quoting

Razorback Ready Mix Concrete Co. v. Weaver, 761 F.2d 484, 487 (8th Cir. 1985)); Kearney, 590

F.3d at 646-47.

Last, Hansmeier objects to the Magistrate Judge’s analysis of 7.5. Joseph Co. v. J.

Lauritzen A/S, 751 F.2d 265 (8th Cir. 1984), and United States v. Pendergraft, 297 F.3d 1198

(11th Cir. 2002). He raises no new arguments concerning the interpretation of those cases, and

the Court agrees with the analysis in the Report and Recommendation.

The Court accordingly overrules each of Hansmeier’s objections and adopts the

reasoning and recommendation of the Report and Recommendation, as supplemented above.

Based on the files, records, and proceedings herein, and for the reasons stated above, IT

IS ORDERED THAT:

Defendant Paul R. Hansmeier’s Motion to Dismiss [Dkt. No. 48] is DENIED.

s/ Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

Dated: September 8, 2017

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.