PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                     No. 19-1720
                  ________________


           UNITED STATES OF AMERICA

                           v.

               CLARENCE HOFFERT,
                             Appellant
                 ________________


     On Appeal from the United States District Court
        for the Western District of Pennsylvania
        (D.C. Criminal No. 2-18-cr-00073-001)
          District Judge: Honorable Christopher C. Conner
                    ______________

              Argued: November 13, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

               (Filed: February 11, 2020 )
Quin M. Sorenson [Argued]
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101

       Counsel for Appellant

Jonathan P. Cantil [Argued]
Wei Xiang
Office of United States Attorney
138 Delaware Avenue
Buffalo, NY 14202

       Counsel for Appellee

                      ________________

                          OPINION
                      ________________


SCIRICA, Circuit Judge

       Clarence Hoffert appeals his convictions and sentences
under 18 U.S.C. § 1521 for filing false liens against five federal
officers who were involved in denying Hoffert’s requests to be
released from prison, where he is currently serving a lengthy
sentence for prior convictions. 1 Hoffert challenges both the

1
    Hoffert was convicted and sentenced by the Court of
    Common Pleas of Lebanon County, Pennsylvania for




                                2
validity of § 1521—contending it is unconstitutionally vague
and an overbroad restriction of protected speech—as well as
the sufficiency of the evidence presented at his trial. The trial
court rejected both challenges, concluding the statute is neither
unconstitutionally vague nor overbroad and that the evidence
could rationally support a guilty verdict. We will affirm.

                               I.

        This case is the latest entry in a long and confusing saga
relating to Clarence Hoffert’s current incarceration at SCI-
Albion for convictions arising out of the Court of Common
Pleas of Lebanon County, Pennsylvania in 2003. It has its roots
in requests that Hoffert made for documents from various
governmental entities years after he began serving his
sentence. In September 2012, Hoffert asked the Clerk of Court
for the Lebanon County Courthouse to provide him a copy of
his original sentencing order, explaining that prison officials at
SCI-Albion allegedly had difficulty “keeping their records in
order” and that Hoffert, in his words, “would like to be able to
prove to them what my minimum [sentence] is when the time
comes that I shall be eligible for parole.” App’x 323. The Clerk
of Court quickly responded with a copy of the sentencing
order, but noted that “[i]f the SCI needs your paperwork to be
resent to them, they must make the request by e-mail or fax.”
App’x 325.

       Shortly after getting a copy of his sentencing order,


   consecutive counts of rape (9 ½ to 20 years), corruption of
   a minor (2 ½ to 5 years), and endangering the welfare of
   children (40 months to 7 years), for a cumulative total of
   approximately 15 to 32 years in prison.



                                3
Hoffert filed a request with the Right-to-Know Office of the
Pennsylvania Department of Corrections under Pennsylvania’s
Right-to-Know Law, 65 Pa. Stat. Ann. § 67.101 et seq., asking
for the Department of Corrections to produce a sentencing
order with a “seal stamped upon it,” along with other
associated documents. App’x 342. The request was denied
with the explanation that such records “do not currently exist.”
App’x 344. Hoffert appealed to the Pennsylvania Office of
Open Records, the Department of Corrections again searched
its records and found nothing, and the Office of Open Records
concluded in a final determination that “no responsive records
exist within the Department’s possession, custody or control.”
App’x 357–58. Hoffert was advised that he could appeal to the
Commonwealth Court of Pennsylvania if he disagreed with the
final determination.

        Hoffert then filed a pro se § 1983 complaint in the
United States District Court for the Western District of
Pennsylvania, attaching as exhibits several documents relating
to his right-to-know request, including the final determination
denying his request. Hoffert asserted that he “ha[d] been
incarcerated now for over ten years without the proper ‘Sealed’
documentation,” sought damages of $3,500 per day for his
“initial and continued illegally held confinement,” and
demanded his “unbiased and immediate release” from custody.
App’x 362. His complaint was dismissed in a report and
recommendation adopted by the trial court, which held that
(1) Eleventh Amendment immunity prevented Hoffert from
seeking damages from the Commonwealth of Pennsylvania;
and (2) claims for immediate release from illegal detention are
not cognizable under 42 U.S.C. § 1983 and must instead be
addressed through a habeas corpus petition. See Hoffert v.
Pennsylvania, No. 13-162, 

(W.D. Pa. Aug.




                               4
27, 2014). We affirmed. See Hoffert v. Pennsylvania, No. 14-
3947 (3d Cir. Jan. 6, 2015) (non-precedential).

       Following the dismissal of his complaint, Hoffert filed
an administrative tort claim with the Torts Branch of the
United States Department of Justice’s Civil Division, seeking
$7,396,800,000 ($1.6 million per day) for his allegedly
unlawful incarceration, which he claimed was “beyond the
lawful Decrees of the Laws of Commerce and without use of a
compact/contract/agreement between the Claimant and the
U.S. Inc.’s subcorporation, PENNSYLVANIA.” App’x 386–
93. An “affidavit” associated with the administrative tort claim
elaborated on who was purportedly responsible for these
damages by providing a long list of state and federal entities
that had interacted with Hoffert, from the date of his arrest
many years before to the more recent denial of his § 1983
complaint.

       The Torts Branch denied Hoffert’s administrative tort
claim. It determined that Hoffert’s claim was not compensable
because the claim alleged wrongful acts or omissions by
employees of the Commonwealth of Pennsylvania, who were
not federal employees and therefore fell outside the scope of
the Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1);
Couden v. Duffy, 

, 499 (3d Cir. 2006) (“The
FTCA waives the federal government’s sovereign immunity as
to negligent or wrongful actions by its employees within the
scope of their official duties . . . .” (emphasis added)). Hoffert
was informed that if he was dissatisfied with this decision, he
could timely file suit in an appropriate United States District
Court. Instead, Hoffert wrote a letter to the director of the Torts
Branch disputing the decision and threatening to “add your [the
director’s] name and Agency to my Form 95 Administrative




                                5
Tort Claim and file it to the superiors of the United States Inc.
at the United Nations.” App’x 412. This letter was returned to
Hoffert by a legal assistant at the Torts Branch with a brief
explanation that the Torts Branch was no longer involved in
the matter because it had denied the claim. 2

        Things came to a head soon after. On August 4, 2017,
Hoffert filed a “Claim of Commercial Lien Affidavit [and]
Notice of Non-Judicial Proceeding” in the Office of the
Recorder of Deeds, Erie County, Pennsylvania, in which he
named five federal officials as lien debtors: (1) the magistrate
judge who recommended dismissal of his § 1983 complaint;
(2) the district court judge who adopted that recommendation
and dismissed that complaint; (3) one member of the Third
Circuit Court of Appeals panel that affirmed the dismissal of
the complaint; (4) the director of the Civil Division’s Torts
Branch involved with the denial of Hoffert’s administrative
tort claim; and (5) the legal assistant who responded to
Hoffert’s letter disputing the denial of his administrative tort
claim. 3 These individuals were “now being liened for a


2
    During this time, Hoffert also submitted various filings to
    the Secretary of the Treasury of Puerto Rico, such as an
    “Affidavit Notice Demanding Setoff of Account,” in which
    he requested the Secretary’s “most expedient intervention
    at correcting the record by paying the bond to setoff the
    account charged against the legal fiction U.S. vessel
    Clarence Hoffert by the Lebanon County Court of Common
    Pleas,” among other things. The record does not indicate
    whether Hoffert ever received a response to these
    entreaties.
3
    Two Pennsylvania state officials were also named.



                               6
minimum amount of $650,000 U.S. Dollars each” because they
had allegedly failed to comply with Pennsylvania law, “chose
to ignore the un-Constitutional sanctions imposed against
[Hoffert],” committed “treason,” and had engaged in other
purported transgressions. App’x 426. The liens were “intended
to seize all real and movable property of the [seven] Lien
Debtors,” as well as the property of their spouses and children.

that each of these individuals was liable for
$8,000,000 in damages, for a total of $56 million. Hoffert
appears to have reached this sum through his interpretation of
18 U.S.C. § 3571, which permits a court to fine defendants
found guilty of a misdemeanor or felony offense. In his cover
letter to the Recorder’s Office, Hoffert specifically requested
that the liens be filed “as a Public Record.” App’x 423.

       A few months after mailing the liens to the Recorder’s
Office, Hoffert asked the United States Marshals Service to
“serv[e] each lien debtor with a Distraint Warrant and to begin
collection/liquidation of all their movable assets.” App’x 511.
In response to this request, two marshals interviewed Hoffert
on January 30, 2018, to discuss the various papers he had
submitted with his liens and subsequent requests for service.
During this interview, which was recorded, Hoffert
acknowledged that he wanted the marshals to seize and
liquidate the property of the lien debtors.

        Nearly two months later, a federal grand jury indicted
Hoffert, charging him with five counts of filing or attempting
to file a false lien or encumbrance against the real or personal
property of an officer or employee of the federal government,
in violation of 18 U.S.C. § 1521. Hoffert moved to dismiss the
indictment, contending § 1521 was an unconstitutionally vague
and overbroad restriction of protected speech. The trial court




                               7
denied the motion in a careful and thorough opinion.

        At trial, the jury was presented with evidence showing
that the document filed by Hoffert at the Recorder’s Office
was, and was intended to be, a false lien or encumbrance.
Jurors heard testimony from each named victim confirming
that they did not know Hoffert, had no financial dealings with
Hoffert, and did not owe Hoffert any amount of money. Hoffert
also took the stand at trial, explaining that he had chosen not to
file a habeas corpus petition because he had “watched guys sit
ten years in court and their habeas corpus never came up.”
App’x 219. He thus pursued a different strategy: “I just wanted
the notoriety. I really wasn’t looking to get any type of
monetary value out of anything. . . . I just wanted to show that
we’re still being held without the proper paperwork.” App’x
220. Hoffert also indicated that although he sought damages of
$8 million from each victim under his reading of 18 U.S.C. §
3571, which permits a court to impose criminal penalties, he
nonetheless understood that only the government could bring
criminal charges against a person.

       The jury convicted Hoffert on all five counts. He moved
for a judgment of acquittal, arguing the evidence was not
sufficient to sustain his convictions. The trial court denied his
motion, concluding that the record contained sufficient
evidence to support the jury’s guilty verdict, and sentenced
Hoffert to 48 months of imprisonment consecutive to the
sentences he was already serving. He now appeals, arguing that
18 U.S.C. § 1521 is unconstitutional and that there was
insufficient evidence to support his convictions.




                                8
                               II.

       Section 1521 makes it illegal to file a false lien against
federal officials for the performance of their official duties:

              Whoever files, attempts to file, or
              conspires to file, in any public record or
              in any private record which is generally
              available to the public, any false lien or
              encumbrance against the real or personal
              property of an individual described in
              section 1114, on account of the
              performance of official duties by that
              individual, knowing or having reason to
              know that such lien or encumbrance is
              false or contains any materially false,
              fictitious, or fraudulent statement or
              representation, shall be fined under this
              title or imprisoned for not more than 10
              years, or both.

18 U.S.C. § 1521. Hoffert asserts § 1521 is unconstitutional
because the scienter requirement “knowing or having reason to
know” is vague and overbroad. As Hoffert challenges the
constitutionality of this criminal statute, our review is de novo.
See United States v. Bergrin, 

, 264 (3d Cir. 2011).
We have jurisdiction over the final decision of the trial court
under 28 U.S.C. § 1291.

                                 A.

      We begin with Hoffert’s vagueness challenge to § 1521.
A conviction violates due process if a criminal statute on which




                                9
the conviction is based “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.” United States v. Williams, 

, 304 (2008). “For the criminal context in particular,
vagueness challenges ‘may be overcome in any specific case
where reasonable persons would know their conduct puts them
at risk of punishment under the statute.’” United States v.
Ferriero, 

, 124 (3d Cir. 2017) (quoting United
States v. Moyer, 

, 211 (3d Cir. 2012)). A criminal
statute need only give “fair warning” that certain conduct is
prohibited, 

, and “one who
deliberately goes perilously close to an area of proscribed
conduct shall take the risk that he may cross the line,” Boyce
Motor Lines v. United States, 

, 340 (1952).

       Section 1521’s scienter requirement, or one quite
similar to it, is ubiquitous in the criminal law, see, e.g., United
States v. Saffo, 

, 1268 (10th Cir. 2000)
(collecting statutes), and has withstood numerous vagueness
challenges. In Gorin v. United States, the Supreme Court
considered a vagueness challenge to the Espionage Act, which
criminalized certain conduct when a defendant had “intent or
reason to believe” that certain information would “be used to
the injury of the United States, or to the advantage of any
foreign nation.” 

, 27–28 (1941). In rejecting the
challenge, the Court found “no uncertainty in this statute which
deprives a person of the ability to predetermine whether a
contemplated action is criminal,” and focused in particular on
the “obvious delimiting words” of the scienter requirement,
which “require[d] those prosecuted to have acted in bad faith.”




                                10


think it clear that if the scienter requirements
challenged in Gorin and many other cases were not vague, then
neither is § 1521.

        Hoffert nonetheless contends that § 1521 is
unconstitutionally vague because “entirely innocent persons”
could be convicted under a “reason to know” standard.
Appellant Br. at 15. We disagree. Rather than permitting the
conviction of innocent persons, § 1521 has a scienter
requirement that defines the level of culpability for the offense
and which has a settled legal meaning. A person has “reason to
know” of a certain fact when “a person of ordinary intelligence
. . . would infer that the fact in question exists or that there is a
substantial enough chance of its existence that, if the person
exercises reasonable care, the person can assume the fact
exists.” See Reason to Know, Black’s Law Dictionary (11th ed.
2019). As courts have uniformly recognized, a criminal statute

4
    Following Gorin, the courts of appeals have consistently
    rejected vagueness challenges to similar scienter
    requirements. See, e.g., 

(rejecting
    challenge to “reasonable cause to believe” standard because
    the defendant could only have understood it to proscribe the
    sale of illegal pseudoephedrine); Casbah, Inc. v. Thone,
    

, 561 (8th Cir. 1981) (rejecting challenge to
    statute criminalizing the sale of items that a seller
    “reasonably should know” will be used as drug
    paraphernalia); United States v. Featherston, 

, 1121–22 (5th Cir. 1972) (rejecting challenge to 18
    U.S.C. § 231’s “knowing or having reason to know”
    requirement because the statute was “sufficiently definite
    to apprise men of common intelligence of its meaning and
    application”).



                                 11
employing a “reason to know” standard requires an individual
to proceed with reasonable care and to “open his eyes to the
objective realities” of a given course of conduct. 

; see also Fla. Businessmen for Free Enter. v. City
of Hollywood, 

, 1219 (11th Cir. 1982) (“The
‘reasonably should know’ standard does not punish innocent
or inadvertent conduct. . . .”). With respect to § 1521, the only
court of appeals to have so far construed the statute has
similarly held that “[u]nder § 1521, . . . a defendant can be
guilty even if he honestly believed that he filed a proper lien so
long as the belief was not a reasonable one.” United States v.
Williamson, 

, 994 (10th Cir. 2014). So instead of
being vague, § 1521’s use of “reason to know” reveals nothing
more complicated than that Congress intended for lien filers to
proceed with reasonable care as to the falsity of a lien.

         Further undermining Hoffert’s vagueness challenge is
that § 1521 limits criminal liability to those situations where
someone knows or has reason to know of a lien’s falsity, which
makes the statute less vague, not more. A person who files a
lien is protected from criminal sanction if he or she acted
reasonably under the circumstances as to its falsity, thus
allowing individuals to conform their conduct accordingly. See
Posters ‘N’ Things, Ltd. v. United States, 

, 526
(1994) (“[A] scienter requirement may mitigate a law’s
vagueness, especially with respect to the adequacy of notice
. . . that [the] conduct is proscribed.”) (quoting Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 

, 499
(1982)). For similar reasons, we must also reject Hoffert’s
contention that § 1521’s use of a “reason to know” standard is
vague because it relies on a “reasonableness” standard. “The
mere fact that a penal statute is so framed as to require a jury
upon occasion to determine a question of reasonableness is not




                                12
sufficient to make it too vague to afford a practical guide to
permissible conduct.” United States v. Ragen, 

,
523 (1942). 5

        Finally, Hoffert argues that his conduct—in contrast to,
say, espionage—is not “inherently unlawful in some way,”
because filing liens is a normal part of everyday commercial
activity. Reply Br. at 4–5. Hoffert’s premise is flawed—he did
not just file a lien, but rather a false, retaliatory lien against
federal officials—but whatever the case, this distinction is
immaterial. The dispositive question for whether a statute is
unconstitutionally vague is not the “inherent” lawfulness of
certain conduct, but whether “reasonable persons would know
their conduct puts them at risk of punishment under the
statute.” 

. We find that nothing in the
statute prevented Hoffert from knowing that his course of
conduct put him at risk of punishment. Section 1521 is not
vague, and any individual “desirous of observing the law will
have little difficulty in determining what is prohibited by it.”
Omaechevarria v. Idaho, 

, 348 (1918).

                                B.

       We now turn to Hoffert’s other facial challenge under
the First Amendment. “In the First Amendment context, . . . a
law may be invalidated as overbroad if ‘a substantial number

5
    Because § 1521’s scienter requirement is clear in its
    language and provides a guide to conduct, Hoffert’s
    argument about whether the trial court erred when it
    instructed the jury on a “good faith” defense is irrelevant.
    Regardless of whether the defense is available under §
    1521, the statute is not vague either way.



                               13
of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” 

(quoting United States v. Stevens, 

, 473 (2010)).
A law must be “substantially overbroad” to be
unconstitutional, 

, and the “mere fact
that one can conceive of some impermissible applications of a
statute is not sufficient to render it susceptible to an
overbreadth challenge,” Members of City Council of L.A. v.
Taxpayers for Vincent, 

, 800 (1984). Invalidation
for overbreadth is “‘strong medicine’ that is not to be ‘casually
employed.’” 

(quoting L.A. Police
Dep’t v. United Reporting Publ’g Corp., 

, 39
(1999)).

        Determining whether a statute is unconstitutionally
overbroad is a two-step process. “The first step in overbreadth
analysis is to construe the challenged statute,” followed by the
second step of evaluating whether the statute, as construed,
“criminalizes a substantial amount of protected expressive
activity.” 

, 297. Section 1521’s
construction is straightforward: it is illegal to file a false lien
against federal officials on account of the performance of their
official duties when the filer knows or has reason to know the
lien is false. Section 1521 thus prohibits a relatively narrow
band of activity.

       Although Hoffert must show § 1521 criminalizes a
substantial amount of protected speech, he cites no authority or
evidence to indicate that it does. 6 Indeed, there is much cutting

6
    Hoffert cites Tyler v. University of Arkansas Board of
    Trustees, 

(8th Cir. 2011), and Augustin v. City




                                14
against it. “[T]he First Amendment does not shield fraud,”
Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 

, 612 (2003), and we have previously remarked on the
“unique problem” that false liens pose, which allow the
perpetrator to “file the lien with relative ease” while requiring
the victim to “go through a complicated ordeal, such as to seek
judicial action, in order to remove the lien.” Monroe v. Beard,

, 209 (3d Cir. 2008) (per curiam) (rejecting First
Amendment challenge to confiscation of prisoner legal
materials used to file false liens). Given the fraudulent nature
of false liens and the low social value of filing them, we
conclude that § 1521 does not restrict a substantial amount of
protected speech.

                              III.

        Hoffert also challenges the sufficiency of the evidence
to sustain his conviction, which we review de novo. See United
States v. Freeman, 

, 343 (3d Cir. 2014). “[T]he
critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction . . . is whether, after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Caraballo-Rodriguez, 

, 424–25


   of Philadelphia, 

(3d Cir. 2018), in support of
   this argument. But Tyler involves the filing of a claim with
   the Equal Employment Opportunity Commission, not a
   false lien, and Augustin addresses municipal liens and does
   not involve the First Amendment. Both cases fall far short
   of showing § 1521 criminalizes a substantial amount of
   protected speech.



                               15
(3d Cir. 2013) (quoting Jackson v. Virginia, 

, 319
(1979)). A jury’s verdict must be upheld unless it falls below
the threshold of “bare rationality.” Coleman v. Johnson, 

, 656 (2012).

        Hoffert’s sufficiency challenge again centers on the
mens rea element of § 1521. He asserts his conviction is
unsupported by the record because “[n]o witness testified and
no evidence showed that Mr. Hoffert knew that the lien was
false when filed.” Appellant Br. at 18. But as the trial court
noted, Hoffert had engaged in an extensive course of conduct
to challenge his state convictions, repeatedly ignored advice to
file habeas corpus petitions, sought $7.3 billion in damages for
his confinement, and even threatened to “add” the director of
the Tort Branch to his administrative tort claim after it was
denied. As for the lien itself, it sought $8 million from each of
five federal officials under Hoffert’s calculation of criminal
penalties under 18 U.S.C. § 3571, even though he conceded
that only the government could seek to impose such penalties.
And when asked why he filed the liens, Hoffert responded that
he did not file them to recover money but rather to expedite
what he perceived to be an unduly slow habeas corpus process.
He even went so far as to state that he “just wanted the
notoriety,” “wasn’t looking to get any type of monetary value
out of anything,” and “just wanted to show that we’re still
being held without the proper paperwork.” App’x 220.

        Given the circumstantial evidence of Hoffert’s
intentions and his own admissions at trial about his mental
state, we conclude that the jury could have rationally
concluded that Hoffert filed the liens “knowing or having
reason to know that such lien[s] or encumbrance[s] [were]
false.” 18 U.S.C. § 1521; see also Caraballo-Rodriguez, 

(“Unless the jury’s conclusion is irrational, it must
be upheld.”). Accordingly, we will not disturb the jury’s
verdict.

                              IV.

       For the foregoing reasons, we will affirm the trial
court’s judgment of convictions and sentences.




                               17