FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              December 18, 2018
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                    No. 17-1182
 GUNTHER GLAUB,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 1:16-CR-00184-RM-1)


Laura B. Wolf (Siddhartha H. Rathod with her on the briefs), Rathod š
Mohamedbhai LLC, Denver, Colorado, for Appellant.

James C. Murphy, Assistant United States Attorney (Robert C. Troyer, Acting
United States Attorney, with him on the brief), Denver, Colorado, for Appellee.


Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.


MURPHY, Circuit Judge.


I.    Introduction

      Defendant-Appellant, Gunther Glaub, was convicted of violating the

criminal provisions of the False Claims Act. 18 U.S.C. § 287. He challenges
those convictions, arguing his act of submitting personal bills and invoices to the

United States for payment was protected by the First Amendment. He also

challenges the jury instructions given in his trial on the basis that they failed to

set forth the correct definition of the term “claim.”

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

convictions.

II.   Factual Background

      Glaub was charged by indictment with five counts of violating the criminal

provisions of the False Claims Act (“FCA”), 18 U.S.C. § 287. 1 The indictment

alleged Glaub sent personal bills and invoices to the Director of the Finance

Office, United States Department of Agriculture (“USDA”) seeking payment,

despite knowing the debts were owed by him. The invoices related to purchases

of expensive vehicles; the bills related to the payment of a student loan debt owed

by Glaub to the United States Department of Education and a debt owed by Glaub

to Bellco Credit Union. The documents were all accompanied by a note from

Glaub which stated: “Thank you for paying this debt.”

      Glaub filed a pre-trial motion seeking to have the FCA charges dismissed,

asserting he had a first amendment right to freedom of speech and to petition the



      1
       Glaub was also charged with one count of Mailing a Fictitious Financial
Instrument, in violation of 18 U.S.C. § 514(a)(3). This charge was dismissed by
the government.

                                          -2-
government for redress of grievances. He claimed his speech involved an

expression of “his genuine view that the federal government is or should be liable

for its citizens’ private debts.” Accordingly, Glaub’s argument continued, his act

of submitting the bills and invoices was speech protected by the First

Amendment. Glaub also argued that 18 U.S.C. § 287 is unconstitutional as

applied to his activities. In the alternative, he argued there was insufficient

evidence to support the charges.

      In its written response to Glaub’s motion, the government first noted that

the question of whether the evidence was sufficient to secure a conviction was

one for the jury and could not be resolved in a motion to dismiss an indictment.

As to Glaub’s constitutional arguments, the government asserted the First

Amendment does not protect the submission of false claims to the government.

See United States v. Alvarez, 

, 723 (2012) (“Where false claims are

made to effect a fraud or secure moneys or other valuable considerations, . . . it is

well established that the Government may restrict speech without affronting the

First Amendment.”). The goverment also argued that § 287 is not

unconstitutionally overbroad because it criminalizes only the submission of

certain claims, i.e., those that are “false, fictitious, or fraudulent.”

      The district court held a hearing on the motion. At the hearing, Glaub

argued the indictment should be dismissed because his conduct was not unlawful



                                           -3-
for two reasons. First, he argued the documents he mailed to the USDA were not

claims, as that term is used in § 287, because there is no actual program or policy

pursuant to which the United States government pays a citizen’s personal debts.

Glaub also argued the indictment was legally insufficient because the documents

he submitted to the USDA were not false, fictitious, or fraudulent on their face.

The district court concluded these questions could not be decided until trial, after

a full evidentiary record was developed. 2

      Glaub also presented his first amendment argument at the hearing. He

asserted the documents he sent to the USDA were merely the expression of his

viewpoint on the government’s obligation to pay the private debts of its citizens

and, as such, his conduct was speech protected by the First Amendment. Glaub

also argued § 287 is unconstitutionally overbroad if it reaches his conduct. The

district court rejected these arguments, concluding that if Glaub intended to make

a false claim against the United States by sending his bills to the USDA, his

conduct was not protected by the First Amendment. See 

. Because the intent element involved a jury finding, the question of

whether Glaub’s speech was constitutionally protected could not be determined as

a matter of law before trial. See Fed. R. Crim. P. 12(b)(1) and 12(b)(3)(B)(v)



      2
        See infra § III.A. (rejecting the proposition that a claim cannot be false,
fictitious, or fraudulent unless the documents submitted to the government are
altered or counterfeit).

                                         -4-
(providing that a pre-trial motion alleging a defect in the indictment can be made

only if the issue presented “can be determined without a trial on the merits”).

Accordingly, the district court refused to dismiss the charges. See 

the

issue of whether the statute was overbroad, the court concluded there was no

legal support for Glaub’s position.

      The matter eventually proceeded to trial. The government called five

witnesses, each of whom was cross-examined by Glaub. At the close of the

prosecution’s case, Glaub moved for judgment of acquittal pursuant to Fed. R.

Crim. P. 29. He challenged the sufficiency of the evidence, arguing, inter alia,

there was no testimony showing the claims he submitted were false, fictitious, or

fraudulent. The district court denied the motion.

      The jury found Glaub guilty of five counts of submitting false claims to the

government. Two weeks later, Glaub filed a written Rule 29(c) motion for

judgment of acquittal. He, again, argued the prosecution presented no evidence

the claims he submitted were false, fictitious, or fraudulent. Glaub also argued

the evidence was insufficient to meet the mens rea requirements for the crimes

charged. The district court denied this motion.




                                         -5-
III.   Discussion

       A. Sufficiency of the Evidence

       Glaub raises numerous challenges to the district court’s rulings.

Specifically, he argues the district court erred by refusing to dismiss the charges

against him, erred by failing to acquit him, and erred by “expanding the reaches

of the False Claims Act.” These issues are all based on Glaub’s assertion that he

has a first amendment right to petition the government for the payment of his

private debts. The Supreme Court, however, has held that the submission of a

false claim to the government is not protected by the First Amendment. 

(“Where false claims are made to effect a fraud or secure moneys

or other valuable considerations . . . it is well established that the Government

may restrict speech without affronting the First Amendment.”); see also United

States v. Stevens, 

, 468 (2010) (listing the following categories of

speech as those that are not protected by the First Amendment: obscenity,

defamation, fraud, incitement, and speech used as an integral part of conduct in

violation of a valid criminal statute). This court has likewise held that “the First

Amendment provides no protection for knowingly fraudulent or frivolous

claims.” United States v. Ambort, 

, 1117 (10th Cir. 2005). In other

words, “speech is not protected by the First Amendment when it is the very

vehicle of the crime itself.” United States v. Varani, 

, 762 (6th Cir.



                                         -6-
1970). Accordingly, the First Amendment does not protect Glaub’s speech if, by

sending his private bills to the USDA, he knowingly filed a false claim in

violation of § 287.

      “A claim is false or fictitious within the meaning of § 287 if untrue when

made, and then known to be untrue by the person making it or causing it to be

made. A claim is fraudulent if known to be untrue, and made or caused to be

made with the intent to deceive the Government agency to whom submitted.”

United States v. Irwin, 

, 683 n.15 (10th Cir. 1981) (quotations

omitted), overruled on other grounds by United States v. Daily, 

,

1005 (10th Cir. 1990). Thus, as the district court correctly concluded, the first

amendment issue could not be resolved before trial because it involved factual

questions relating to Glaub’s state of mind. If Glaub possessed the requisite

criminal intent when he sent his bills to the USDA, his speech is not protected by

the First Amendment even though it was directed at the government.

      Although Glaub’s appellate arguments focus primarily on first amendment

legal principles, the first amendment issues arising in this FCA criminal

prosecution hinge on the factual question of intent. Because that question was

properly submitted to the jury, Glaub is not entitled to reversal of his convictions

under any of the numerous first amendment theories he raises unless he first

shows the government’s evidence on the intent element was insufficient. See



                                         -7-
Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 

, 620 n.9

(2003) (holding the goverment bears “the burden of proving that the speech it

seeks to prohibit is unprotected”). Glaub’s argument on this point begins with a

single sentence in his reply brief that reads: “The government makes no showing

. . . of how [his] speech could be considered ‘fraudulent.’” Appellant Reply Br.

at 2. His subsequent argument, like this sentence, is not accompanied by any

citation to the record or any discussion of the evidence presented at trial. Instead,

he makes conclusory assertions that his conduct was “devoid of any elements of

fraud” and was “likewise devoid of falsity.” 

      In a more focused argument on sufficiency, Glaub asserts the prosecution

failed to show his claims were false, fictitious, or fraudulent because it did not

present evidence that he altered any of the information on the documents he

submitted to the USDA. This argument is not persuasive. The statutory language

is clear on its face—it is the claim that must be false, fictitious, or fraudulent.

18 U.S.C. § 287. The statutory language provides no support for the proposition

that a claim cannot be false, fictitious, or fraudulent unless the documents

submitted are incorrect, counterfeit, or altered in some way. The conduct of an

individual who submits an unaltered personal bill to the government knowingly

seeking a payment the government has no obligation to make is no different than

the conduct of an individual who alters the amount on a bill otherwise



                                           -8-
legitimately payable by the government. In both situations, the individual is

knowingly seeking to obtain monies from the government to which he is not

entitled. Even if documents supporting a claim are unaltered, the falsity of the

claim lies in the representation, either express or implied, that the government has

an obligation to pay the amount submitted. Accordingly, the submission of an

unaltered personal bill to the government, together with a request that the

government pay the debt, can be a false claim if the individual submitting the bill

knew the government had no obligation to pay it.

      Here, the prosecution’s evidence showed that Glaub sent multiple bills and

invoices to the specific address of a government agency; the bills and invoices

were addressed to a federal employee with authority to pay claims and disburse

funds (see 7 C.F.R. § 2.28); the bills were for private debts owed by Glaub and

the invoices were for personal vehicles Glaub sought to purchase from a car

dealership; the documents were accompanied by a statement thanking the

government for paying the bills; and several of the submissions included detailed

information instructing the government on how to transfer monies by wire to

Glaub’s bank account and to the car dealership. 3 This evidence is sufficient to


      3
       Three of the documents Glaub submitted to the USDA were buyer’s orders
for new vehicles, including a $73,773 Corvette. These buyer’s orders contained
instructions, including banks account and routing numbers, on how to transfer
funds to the dealership’s bank account. Paul Lowery, a salesman at the
dealership, testified that Glaub came to the dealership more than once and seemed
                                                                     (continued...)

                                         -9-
permit a reasonable jury to find that (1) by submitting the bills and invoices to

the USDA, Glaub was making a false, fictitious, or fraudulent statement that the

government had an obligation to pay them and (2) Glaub knew the government

had no obligation to pay the bills. See United States v. Abbott Washroom Sys.,

Inc., 

, 624 (10th Cir. 1995) (stating the essential elements of a § 287

FCA claim as “(1) the defendant[] knowingly made and presented to a department

or agency of the United States a false, fraudulent or fictitious claim against the

United States; and (2) the defendant acted with knowledge that the claim was

false, fraudulent or fictitious”).

      Glaub also argues the prosecution was required to prove an actual risk of

loss to the government. Glaub does not state whether he raised this issue before

the district court or whether he asked the court to instruct the jury on this

additional element. Regardless, the authority on which Glaub relies does not

support this proposition and § 287 contains no such actual-harm requirement.

      In short, Glaub makes no reasoned argument as to how the evidence was

insufficient to support the jury’s finding that he knowingly submitted a request to

the government seeking payments to which he knew he was not entitled.




      3
       (...continued)
serious about purchasing a vehicle. Mr. Lowery said he spent “at least a few
hours” with Glaub.

                                         -10-
Accordingly, Glaub is not entitled to relief under any of the various first

amendment theories he presents.

      B. Constitutional Challenges

      Glaub also makes two constitutional challenges to his conviction. He first

asserts he was prosecuted because of his political associations or viewpoints.

Glaub does not indicate in his opening brief whether or when this issue was

raised before the district court and, if so, how the district court resolved it. This

court has searched the record and determined Glaub did not expressly seek to

dismiss the indictment on the basis of selective prosecution, making no mention

of Fed. R. Crim. P. 12(b)(3)(A)(iv) in his Motion to Dismiss Counts One Through

Five of the Indictment. Instead, it was the government that interpreted the motion

to incorporate such an argument. Based on the arguments made by the

government, the district court addressed the issue, concluding the evidence was

insufficient to show that Glaub had been prosecuted because of his beliefs or

associations.

      Although Glaub does not set it out in his opening brief, the standard

applicable to a selective prosecution claim is “a demanding one.” United States

v. Armstrong, 

, 463 (1996). “The claimant must demonstrate that

the federal prosecutorial policy had a discriminatory effect and that it was

motivated by a discriminatory purpose.” 

(quotation omitted). Because



                                         -11-
Glaub does not cite the relevant standard, he makes no attempt to show how he

meets it. Most obvious is the lack of any argument on discriminatory effect.

Accordingly, the issue is waived. Gaines-Tabb v. ICI Explosives, USA, Inc., 

, 624 (10th Cir. 1998) (“[A]rguments not set forth fully in the opening

brief are waived.”).

      Glaub further argues § 287 is “unconstitutional as applied” because it is

overbroad if it reaches his conduct. An overbreadth challenge, however, is a

facial challenge not an as-applied challenge. Faustin v. City & Cty. of Denver,

, 948 (10th Cir. 2001). Glaub’s argument is, thus, no different than

any of the first amendment theories we have already rejected.4 See 

doctrine does not apply when there is no significant difference

between the claim that the ordinance is invalid because of overbreadth and the

claim that it is unconstitutional when applied to the plaintiff’s own activities.”).

      C. Jury Instructions

      Glaub raises several challenges to the jury instructions given by the district

court. A district court’s refusal to give a jury instruction is reviewed for abuse of

discretion. United States v. Gonzales, 

, 1181 (10th Cir. 2006). “In

assessing whether the district court properly exercised its discretion, we review

the instructions de novo to determine whether, taken as a whole, they accurately


      4
       Included in this overbreadth challenge are remnants of Glaub’s assertion
the prosecution was required to prove risk of harm.

                                         -12-
state the governing law.” 

is entitled to an instruction on [his]

theory of the case if the instruction is a correct statement of the law, and if [he]

has offered sufficient evidence for the jury to find in [his] favor.” 

alterations omitted).

             1. First Amendment Theory

      Glaub first argues the district court abused its discretion by refusing to

instruct the jury on his first amendment theory of defense. The instructions

Glaub proposed would have required the jury to consider whether Glaub “was

engaging in lawful speech and association, including the lawful petition of the

government for redress, protected by the First and Fourteenth Amendments to the

United States Constitution.” The district court declined to give the instruction on

the grounds it was argumentative and not supported by the evidence. The court

further ruled it was “not up to the jury to decide whether this conduct is protected

by the First Amendment. Ultimately, what happens is, [Glaub] is guilty or not

guilty. If it’s a false claim, it’s not protected by the First Amendment.” The

district court, however, did instruct the jury that: “It is the theory of the defense

that Gunther Glaub’s political associations and beliefs have colored the

perceptions of his actions. Mr. Glaub maintains that at no time did he intend to

defraud the United States and that he did not ever submit a false, fictitious or

fraudulent claim against the government.”



                                          -13-
      There was no abuse of discretion in refusing to give Glaub’s instruction

because the question of whether Glaub’s conduct is protected by the First

Amendment is one of law and not one for the jury. Glaub misreads United States

v. Viefhaus, 

(10th Cir. 1999), for the proposition that the question

of whether speech falls within the protections of the First Amendment is a factual

one for the jury. In Viefhaus, this court held that the factual question of whether

the defendant’s statement was a true bomb threat was one for the jury. 5 

Because the jury found it was a true threat, it was not protected by

the First Amendment. 

396 (“The fact that a specific threat

accompanies pure political speech does not shield a defendant from culpability.”).

The same process was followed by the district court in this matter. The factual

question of whether the documents Glaub sent to the USDA were false claims

was submitted to the jury. Because the jury found they were false claims,

Glaub’s speech was not protected by the First Amendment. Thus, the instruction

given by the district court, not the one requested by Glaub, was the correct

statement of the law.




      5
       Viefhaus also states: “If there is no question that a defendant’s speech is
protected by the First Amendment, the court may dismiss the charge as a matter of
law.” United States v. Viefhaus, 

, 397 (10th Cir. 1999) (citing
United States v. Malik, 

, 51 (2d Cir. 1994)). This is an unremarkable
proposition and, as in Viefhaus, it is “a scenario . . . not present here.” 

to his jury-instruction challenge is Glaub’s complaint, made during

oral argument in this matter, that he was not permitted to present a first

amendment defense but was limited to an “intent based” defense. Because, as the

district court correctly recognized, the first amendment issue hinged on Glaub’s

state of mind, there are no relevant differences between these two defenses.

Glaub does not direct this court to any portion of the trial transcript supporting

his allegations of thwarted attempts to elicit testimony relevant to his first

amendment defense. 6 Our review of the record uncovered no support for Glaub’s

assertion that he was somehow precluded from putting on a first amendment

defense.

      During opening arguments, the first statement made by Glaub’s counsel to

the jury was as follows: “False, fictitious, fraudulent. To be criminal, a claim

must be false, fictitious or fraudulent, that is because the right to petition the

government is implicit and the very idea of our republican form of government.”

Counsel then proceeded to tell the jury that Glaub was targeted because of his

unpopular beliefs even though those beliefs are “protected by the First

Amendment of the United States Constitution.” After describing the conduct

charged in the indictment, counsel then stated: “Yet, you have a constitutional


      6
        It is possible Glaub’s reference at oral argument to his inability to present
evidence in support of his defense was to the district court’s refusal to permit him
to call several FBI agents as defense witnesses. Glaub does not directly challenge
that ruling in this appeal and, therefore, we do not consider it.

                                         -15-
right to petition the government. You have a right to send your personal debts to

the government and ask the government to pay them.”

      Glaub did not testify and he did not call any witnesses. Consistent with his

opening statement, however, Glaub extensively cross-examined Special Agent

Alex Zappe, the FBI agent who conducted the investigation. Glaub questioned

Agent Zappe on the beliefs of the sovereign citizen movement and whether Glaub

was a member of the movement even though these matters were not discussed by

Agent Zappe during direct examination.7 Glaub’s counsel represented to the

district court that this line of cross-examination was within the scope of direct

because it was relevant to Glaub’s intent. The record, thus, shows the district

court was extremely permissive in allowing Glaub to challenge the government’s

evidence of intent.

             2. Definition of Claim

      Glaub next argues the district court erred when it refused to give the

instruction he sought on the definition of “claim.” His proposed instruction

defined a claim as “a demand for money or property to which an individual

asserts a right against the Government based upon the Government’s own liability

to the individual.” This instruction was derived from the Supreme Court’s



      7
        Despite this line of cross-examination, Glaub states in his opening brief
that he “denies membership in the sovereign citizen movement.” Appellant Br.
at 13.

                                        -16-
opinion in United States v. Cohn, 

(1926). In Cohn the Court stated:

“the provision [of the False Claims Act] relating to the payment or approval of a

‘claim upon or against’ the Government relates solely to the payment or approval

of a claim for money or property to which a right is asserted against the

Government, based upon the Government’s own liability to the claimant.” 

The district court ruled the statement from Cohn was not actually a

definition of the term “claim” and that the issue addressed in Cohn had “nothing

to do with” the issues in Glaub’s case. Concluding the Cohn language was

confusing, the district court gave the following instruction instead: “A ‘claim’ is

a demand for money, property, credit or reimbursement.”

      Glaub argues the instruction given was erroneous for two reasons. First, it

expanded the definition of a claim by eliminating the requirement that the claim

must be made “upon or against the United States.” He argues the Cohn Court

expressly considered and rejected the notion that “claim” (in the context of a

criminal prosecution under the False Claims Act) simply means “a demand of

some matter as of right, made by one person upon another, to do or to forbear to

do some act or thing as a matter of duty.” 

(quotation omitted). This

argument can be easily rejected because the instructions, as a whole, correctly

stated the law. See 

. Specifically, Instruction No. 19

stated:



                                        -17-
             This law makes it a crime to knowingly make a false, fictitious
      or fraudulent claim against any department or agency of the United
      States. The Department of Agriculture is a department or agency of
      the United States within the meaning of this law.

            To find the defendant guilty of a violation of this statute, as
      charged in each count of the indictment, you must be convinced that
      the government has proved each of the following beyond a
      reasonable doubt:

            First: The defendant knowingly made and presented to the
      Department of Agriculture a false, fictitious or fraudulent claim
      against the United States, . . .

      ...

      It is sufficient if the defendant submits the claim to a third party
      knowing that the third party will submit the claim or seek
      reimbursement from the United States or a department or agency
      thereof.

Read as a whole, the instructions clearly required the jury to find that the claims

were made upon or against the United States.

      Glaub further argues the instruction was erroneous because it permitted the

jury to find him guilty without finding that the claims were premised on the

government’s liability to him. See 

. According to Glaub,

by stating that a claim must be “based upon the Government’s own liability to the

claimant,” Cohn requires that false claims, in the context of a criminal

prosecution, must involve a request for a disbursement for work done,

reimbursement for purchases made on behalf of the government, or payments

based on the government’s actual duty to make such payments. See 

                                         -18-
That situation, he argues, is not present here because he submitted bills for

private expenses, not requests for disbursements from government programs or

reimbursements for services he provided to the government.

      The Supreme Court rejected Glaub’s reading of Cohn in United States v.

Neifert-White Co., 

(1968). There, the respondent supplied false

information to support its application for a loan from a federal agency. 

Respondent took the “position that the term ‘claims’ in the [FCA] must be read in

its narrow sense to include only a demand based upon the Government’s liability

to the claimant.” 

The Court disagreed, distinguishing Cohn as

follows:

      Cohn involved a criminal proceeding under an earlier version of the
      present False Claims Act. It concerned a fraudulent application to
      obtain the release of merchandise which did not belong to the United
      States and which was being held by the customs authorities as bailee
      only. The case did not involve an attempt, by fraud, to cause the
      Government to part with its money or property, either in discharge of
      an obligation or in response to an application for discretionary
      action. The language in the Court’s opinion upon which respondent
      relies cannot be taken as a decision upon a point which the facts of
      the case did not present.

(footnotes omitted). Although Neifert-White did not involve a

criminal prosecution, the Court’s explanation of why Cohn does not supply a

definitive definition of the term “claim” is equally applicable in this matter.

Further, the Neifert-White Court expressly stated that the FCA should not be read

rigidly or restrictively even though it “impose[s] criminal sanctions as well as


                                         -19-
civil.” 8 

Against that backdrop, the Court held that the FCA “reaches

beyond ‘claims’ which might be legally enforced, to all fraudulent attempts to

cause the Government to pay out sums of money.” 

This holding

forecloses Glaub’s argument that the jury was erroneously instructed on the

definition of “claim” because his demands for payment were not tied, in some

way, to a program administered by the government. 9

      Glaub raises two additional challenges to the jury instructions. He argues

his convictions must be set aside if the claim instruction is upheld because he was

not sufficiently on notice that his conduct was criminal. His assertion that the

Supreme Court’s decision in Cohn “was the only fair warning regarding what

lines may not be crossed,” is unpersuasive in light of the Court’s subsequent

holding in Neifert-White. He also relatedly argues the district court’s claim

instruction “expanded the reach” of the FCA to criminalize constitutionally


      8
        See Cook Cty. v. United States ex rel. Chandler, 

, 128 n.8
(2003) (“The FCA’s civil and criminal provisions were bifurcated in 1878 . . . and
the latter provisions have since been recodified at 18 U.S.C. § 287.”).
      9
        Glaub’s position is not supported by the plain language of the FCA, which
does not limit false claims to those involving requests for payments from existing
government programs. 31 U.S.C. § 3729(a)(2); 18 U.S.C. § 287; United States. v.
Neifert-White Co., 

, 232 (1968) (noting the FCA is “broadly phrased
to reach any person who makes or causes to be made ‘any claim upon or against’
the United States” (emphasis added)). As the government argues, Glaub’s
interpretation of the term “claim” would lead to an absurd result, precluding
prosecution of claimants to whom the goverment actually owes nothing while
permitting prosecution of claimants to whom the government owes only a portion
of the amount submitted.

                                        -20-
protected speech. This argument, though cast as a challenge to the jury

instructions, ignores the intent element of the crime and is no different than

Glaub’s unsuccessful argument that his speech is protected by the First

Amendment.

      D. Motion for Continuance

      Prior to jury selection, Glaub moved for a continuance of the trial, arguing

his defense was based on Cohn and the district court’s refusal to give the claim

instruction he requested meant his counsel could not provide an adequate defense.

A district court’s denial of a continuance motion is reviewed for abuse of

discretion and the court’s ruling will be reversed only if it was “arbitrary or

unreasonable and materially prejudiced the defendant.” United States v.

McKneely, 

, 1076-77 (10th Cir. 1995) (quotation and alteration

omitted). Based on Glaub’s erroneous assertion the district court’s ruling should

be reviewed de novo, he appears to be presenting an ineffective assistance of

counsel claim. See United States v. Prows, 

, 691 (10th Cir. 1997)

(involving a federal post-conviction motion filed pursuant to 28 U.S.C. § 2255).

Such a claim, however, must be raised in collateral proceedings, not on direct

appeal. United States v. Galloway, 

, 1240 (10th Cir. 1995) (en banc)

(“[Ineffective assistance of counsel] claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.”). Because Glaub



                                         -21-
does not explain why it would be appropriate to review his ineffective assistance

claim on direct appeal, we decline to do so.

      Glaub also cites the correct framework for reviewing the denial of a motion

for a continuance. See United States v. Rivera, 

, 1475 (10th Cir.

1990). That framework involves an examination of four factors: (1) the diligence

of the party seeking the continuance; (2) the likelihood the continuance, if

granted, would have accomplished the stated purpose; (3) the inconvenience to

the opposing party, witnesses, and the court; and (4) the need for the continuance

and any harm resulting from its denial. 

shows that the parties’

dispute over the meaning of the term “claim” arose during the infancy of the

prosecution. Glaub was well aware of the possibility the district court would not

resolve the dispute until trial. Thus, any assertion he was surprised by the court’s

ruling is not plausible. Also implausible is Glaub’s assertion he was prejudiced

by the district court’s denial of a continuance. He argues the district court’s

ruling left him with a single defense to the charges, i.e., lack of intent. He further

argues if he had known his intent defense was the only one available to him, he

would have prepared and examined numerous witnesses whose testimony would

have led to his acquittal. This argument is wholly unsupported. Glaub has failed

to identify any witnesses who would have testified or detailed the testimony they

would have given. Thus, there is no basis on which this court can conclude he

was prejudiced by the district court’s ruling. Having considered the Rivera

                                         -22-
factors in light of the record as a whole, we see no abuse of discretion in the

district court’s ruling.

IV.    Conclusion

       Glaub’s convictions are affirmed.




                                         -23-