the government has taken the position in this case that the false claims act allows for prosecution even when there is no risk of harm whatsoever to the government or reading that would render the false claims act unconstitutional our first amendment jurisprudence is founded on the notion that there need be a nexus of speech to harm or significant risk of harm in order to regulate his will is it important for us to have an understanding of exactly what the viewpoint is that was being expressed i don't believe it's necessary to have a understanding of the viewpoint in order to decide on this question of whether there needs to be some nexus of speech to harm  there is also viewpoint discrimination component to this case separate from that well what if we decide that it is important for us know what the viewpoint is what was the grievance for which he sought redress what was the viewpoint there was no i don't know if there was agreements in particular your honor it was simply a request that the government pay a private debt and so our position is that even an unwelcome petition or even a questionable petition is still protected under the first petition so the case of united states postal service versus hustler magazine is a case that talks about the right of hustler magazine to send copies of their magazine to members of congress as a as a right to petition and those requests are the those magazines were not being s government liability to mr but that's mixing into that other issue i am still looking for each year for which first amendment protection to action at the message is essentially that a student loan debt and we see that every single day in this country there are actual clinics at the harvard law school they have a clinic specifically geared towards filing lawsuits for students discharge their student loan debt and that's precisely what m isn't about political speech it's simply about the right to petition the government for redress regardless of the value of the speech or the questioning you know whether or not this relief would have ever been granted we have the right to make the request and that's where the if you want to see it as a content base restriction essentially what i'm saying is that the government's position is that we cannot have speech of a financial nature made to the government without some absolute right of entitlement to that financial amount before speaking which would mean that for example any student who loses one of their cases where they're asking to discharge student loan debt is now liable for prosecution under the false claims act let me get let me ask you this isn't part of the problem with having no record on  the charges in the indictment and i'm not sure i fully understand the question but essentially what had happened was mr guy was left with saline intent based defense in this case and the government even took the position saying that he essentially was left with no no recourse except to take the stand and to discuss his beliefs which he chose not to do not to to persuade the district court that this truly is a first amendment thing and that ought to be injected in the case is it necessary to state what the viewpoint is counsel at trial was that that was the request that you made however i don't believe that mr would have needed to speak about his viewpoints or his intent because ultimately for example there was nothing false about this claim with a truck or alternately did i said that what is false about the  is simply that the claim is being made while mr glad knows that the bills were his to pay and michael and our position is essentially that the first amendment protects our right to say i know that this is my debt but i would like the government to pay and as long as you're not doing so in a false manner or fraudulent attaching a private bill is is such a clumsy effort to defraud that i don't believe we can see fraud within these claims itself i mean that's the other concern in this case your honor is the fact that the court allowed the mens rea element of knowing to the collapse of the actus reus of sending  their position that intent could be inferred through the submission of the letter itself and so alternately write a point now that any time a person asks the government to pay a private debt simply by asking in this case by sending the letter the the burden is on them as the defendant to take the stand and prove their own innocence and that's the concern with the first amendment i don't know i don't know if you have some if you have more questions on the first amendment but i do also want to why why would somebody submit a private that  s incurred to the government in the first place every citizen has a right to ask the government to pay their debts for example of a citizens house was flooded during a hurricane and they believe that they had the right to ask for additional money more than they were given and do we give citizens the right to ask for that money if the citizen says i believe my house is actually worth this much the damage was of this much value you know five hundred thousand dollars for the value not one hundred thousand dollars and i like to help me pay that off because i can't afford to be sent his car bill to the united states department of agriculture which i think just goes to showing it's an irrational assertion and that because the government knew there was no risk of harm they exert exercised overreach separate or i believe a separate from a prosecutorial or selective prosecution argument however outside of that we know from cases like bridges versus california united states supreme court case that we cannot we might look at the facts of every case to determine whether there's any clear and present danger of harm before we prosecute and should there be a prosecution even lawful under the statute it cannot move forward because if there was no clear and present danger of harm then it's constitutional overreach by the government which is precisely what happened in this case the government admitted three times in their briefs that there'd me not be a risk of harm for them to prosecute the trial court made a finding during sentencing that there was no risk of harm these amounts of repeat out however the government still prosecuted mr gubb solely because of the speech and i should also be noted with the jury instruction issue there was a significant error with the jury instruction in this case which was that the jury or excuse me the trial court instructed the the jury we're taking a broader definition of claim under the false claims act is that me for a white your honor yes so neither way it was actually interpreting like the civil false claims act whereas cohen has interpreted in the criminal fos claims act new for white did not reject has since amended the civil fos claims act to define the term claim and to have other limiting definitions such as a materiality requirement congress has never defined the term claim within the criminal false claims act which is what was being decided upon in united and further it's not only the affirmative definition from cohen that we're looking at it's also the rejection in cohen they specifically this from her specifically rejected the idea that claim could simply mean a demand for something of value and in this case the trial court instructed the jury that claim only meant a demand for something of value and essentially that the only reasons given where that the trial court thought the supreme court got it wrong was the quote and also that the context between the cases were different and we know from but if there was a problem with that claims instruction was it corrected by another instruction that include the words that had been knowingly false claim  uses the expression against the government that's in a later instruction is it's in the same instruction is that claim is a claim upon or against the government and i think the position of the government is that simply submitting the claim to the government is the claim upon are again and the demand for payment is all you need to do to submit a claim upon or against whereas a girl in a jury instructions not placed exactly where you want to want to be placed there is a reference that it must be a false claim quote against the united states yes that is the actual definition in eighteen u s c two eighty seven however claim upon or against the government is defined that term itself is defined in common as stating it must be based on the government's own liability and so th three and the court said no that the court was simply not going to respond to that question and the request that was made was essentially not concretely define for the jury the difficulties were not swept away as we know in bowen bo versus united states we must we play those difficulties of the jury by answering their questions concretely and accurately and we know by decisions of this core and fitzpatrick that we must fairly answer juror questions so we know that jurors were struggling with this definition and yet they were given no additional guidance on take care of the problem i don't believe it does your honor because of all we're saying is that all you need to do is make a demand against the united states i make a demand to the united states and that was the argument made by the government in this case that we're in a situation that any time you make  ts that the government deems as no liability for you may be prosecuted under the false claims act on it i could reserve the rest of my time and i know you may think it's here from the u s all members of the court you murphy representing the united states counsels argued that her client could not be prosecuted unless there was a significant risk of harm to the united states there are a number of things that could be said to that but the dispositive response i think is that congress wrote the statute and they did not require a risk of harm in fact they seem to consider something that close to it and went the other direction said the claim need not be material and the government need not actually be to be to true here here's my car payment bill the it truly is my car feigning ill i'm sending it to you thank you for paying us what is false in false non false statement doesn't know but all of them had very detailed information that wasn't just a buyer's envoys or a bill he had detailed wire information with ro done well i could send you a letter with my bank account and say thank you for depositing you know five hundred thousand in my account nothing about that's false if you did it i'd be thankful i think of also it needs to be considered in light of his state of mind is there really an intent to deceive or is he really it's really just a political expression saying i don't think i should have to pay this there are such detail here your honor that it could deceive for somebody to send their car payment to the united states got the department of agriculture i mean that's just that's crazy maybe a tractor painted when you get the idea tractor it might have been i can't imagine why i need five felony convictions for someone use sending things that aren't false they're silly they're irrational nobody i mean i i i find this very puzzling convict prosecution and well when the jury heard all the evidence if found that the evidence we don't know their exact reasoning but there is sufficient detail with all of these excess aris that cost the amount that he said it cost and if the government would be nice enough to pay it he would be grateful what in that is false i mean i think the i mean i issue he was charged with making a false claim and there was a threshold a trauma nation that if it's a call to plan if it's a false claim there is no first amendment protection and so the only thing left is is it or isn't it and that was a jury question well the good i've been asking you about has to do with whether it states a claim under the false claims act without even getting to the first amendment argument if it's not false i don't know how you can have a fal been addressed at half time actually it was they've said the evidence was insufficient the judge that i don't i'm sort of right there isn't that exactly what's necessary it's a motion for acquittal because the evidence is insufficient in following up judge killer saying the insufficiency is there was no evidence of an intent to defraud there was no evidence of falsity and they were certain certainly free to argue that they did not  turning to the first amendment issue how under united states versus cruise our decision from one nine hundred eighty six on we made it pretty clear that that the defendant there was intitled to tell the jury about his first amendment defense and to explain the basis of his views and what he was doing in week i forget the factual situation improves your honor but it was threats against the guy the president that he told a nurse that he wanted to he was going to kill i think president reagan i'm getting confused on my president and on we ruled that he was intitled to put on a defense in terms of whether it was a truth that did threat and if you could make exactly the same argument if it's a true threat it's not protected by the first amendment we didn't say you first try whether it's a truth threat without ever telling the jury that he's claiming he was making a political statement we said it was proper to put it all in in front of the jury i understand your honor and when we're dealing with a public figure and words directed to public figures we do get into a difficult area is this really a threat or are they just saying i really don't like you mr bush to me that we're not in that area now judge but if the interest would be greater to protect the public figure from a truth for a threat right then praise pay my personal bill it seems like if you're balancing the interest of the government against the interest of speech the interests of governments pretty low here as opposed to where you might have a threat against the president of the united states judge of any portion of this a mission contain an expression a person all political ideological belief i think we would be closer to that territory it's still a jury question but we're not there's not a single thing here that can be deemed as political protest or criticism of the government it's just financial all these details why are the money here government thank you very much it isn't isn't i mean somewhere creeping into these filings here was was the concept of paper terrorism is i did i don't recall that i may well be their paper terrorism yeah inundating the government with a bunch of garbage so that they have to address that waste time i don't think it certainly wasn't arjuna trial that i can recall and any prosecutor pretty much stuck to the know i i don't like the government and this is my my way of protests seems to me that would be you know a political first amendment protected type of statement or conduct but the court would not have let that in nor there i was just trying to imperil the government that's because i don't like the government and don't really consider it my government that wasn't a trial our honor it's because the child court wouldn't let him put in any evidence of his first amendment claim he was told repeatedly this isn't a first amendment claim case if you get convicted under the false claims act it's therefore not speech therefore your first amendment claims are irrelevant i think the court said that with regard to their jury instructions and some of their arguments on the first amendment which seemed to be urging the jury if they decide a legal question i don't recall that offering any evidence that the court rejected on the grounds th just his personal belief the court repeatedly told them even when they tried to get jury instructions in the court repeatedly told them you have your your issue preserved for appeal i thought already decided you can't raise these issues well there's your instructions though we're leading the jury or would have led the jury away from the elements of the offense and the trial judge properly one of the jury to focus on those elements  of his actions what does that mean well i've argued that in the brief that the government was targeting him i think that's a risk arrest and this is it and park this on another proceedings on it was discussed that his submission of the bills was because of the program or the promotional materials from a group that believes that the u s treasury holds a separate account for each city sin and that you're entitled to draw upon that account right i recall the f b i agent in the grand jury trans sovereign citizens appear apparently hold that the only so it is it is a political belief held by mr glop well you point out that the government didn't argue that it trial although i think defense counsel tried to elicit some information at trial from the agent on that subject but no john i don't think a reasonable jury could conclude that every american has a secret account and you can send two hundred thousand dollars in bills with wire transfer information again it's a jury question your honor that's i don't think a jury would you could recently be view that as a political belief  well i don't understand how the jury can decide the question if you don't let that the and then put in evidence of their position with respect to their constitutional right to speak again judge i know i've said this but i'm not aware that they offered any evidence itself they argue over and over and over again that this was political expression that he had a right to do these things and that wasn't the claim and he really didn't intended to defraud the government they said that over and over again in terms of argument you're absolutely right judge i don't recall they didn't call any witnesses to the best of my knowledge and so there really wasn't any evidence itself for the court to consider other than the arguments of counsel which of course are not evidence they counsel thank you  your honour's just addressed some of the points you raised earlier first the government admitted that there was no false information contained in the claims that can be found excuse me in the letters mr gladstone and that commute found in volume five docking number sixty tasked with investigating this case and i shall also note for purposes of preservation this issue was released on appeal it's on page fifty of our opening brief with respect to the fact that the trial court impermissibly collapse the element of falsity into the fact that the claim was simply mr gladstone pay and that did not render the claim itself false and lastly no your honor you are asking questions about whether or not there could have been any sort of clogging up of the system another question i was asked of agents at the was whether there was any harassment or any harassing each about these bills or you know anything else i could have shown any sort of danger to the government and agents at the testified that they were not harassing that's in volume five docket number sixty one p just ten to eleven and that simply these were odd letters that were not part of the normal correspondence of the u s c as office i'm so there was no evidence there was any clogging up of the government but i will just add briefly honors that the case of bolger from the united states supreme court states that the tr between mailbox to trash can is not too high a burden for the constitution the jury instruction i read to mr murphy why doesn't that adequately capture mr glaude first amendment protected speech theory of the case the theory was not only viewpoint discrimination there were multiple and theories happy essential happening at once which was one once the government emitted that they would not have prosecuted these acts as crimes of students hadn't g them and would have even seen them as criminal that's where the viewpoint discrimination element came in however regardless of mr dobbs political associations he had every right to submit these claims to these letters to the government asking the government to pay a debt whether he's a sovereign citizen and