United States v. Elven Swisher ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35796
Plaintiff-Appellee,
D.C. Nos.
v. 1:09-cv-00055-BLW
1:07-cr-00182-BLW-1
ELVEN JOE SWISHER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
May 16, 2014—Portland, Oregon
Filed October 29, 2014
Before: Arthur L. Alarcón, A. Wallace Tashima,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Tashima
2 UNITED STATES V. SWISHER
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s denial of Elven Joe
Swisher’s motion pursuant to 28 U.S.C. § 2255 challenging
a conviction for wearing military medals without
authorization in violation of 18 U.S.C. § 704(a) (2002 ed.).
Swisher argued that his conduct in wearing the medals
qualifies as expressive conduct, and therefore the application
of § 704(a) to him violated his First Amendment rights. The
panel held that Swisher’s contention is foreclosed by United
States v. Perelman, 695 F.3d 866 (9th Cir. 2012), cert.
denied, 133 S. Ct. 2383 (2013), which concluded that the
First Amendment does not prevent Congress from
criminalizing the act of wearing military medals without
authorization and with intent to deceive.
Judge Tashima concurred in the judgment, but only under
the compulsion of Perelman, with whose reasoning he
disagrees.
COUNSEL
Joseph Theodore Horras, Smith Horras, P.A., Boise, Idaho,
for Defendant-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SWISHER 3
Victoria L. Francis (argued), Assistant United States
Attorney; Jessica T. Fehr, Special Assistant to the Attorney
General, Billings, Montana, for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Defendant Elven Joe Swisher was convicted for wearing
military medals without authorization in violation of
18 U.S.C. § 704(a) (2002 ed.). After Swisher’s conviction
became final, the Supreme Court struck down 18 U.S.C.
§ 704(b) (2011 ed.), which criminalized making false claims
regarding an entitlement to military honors, on First
Amendment grounds. United States v. Alvarez, 132 S. Ct.
2537 (2012). Swisher moved the district court under
28 U.S.C. § 2255 to have his conviction for wearing
unauthorized medals overturned on similar grounds, and the
district court denied relief. In the time since Swisher brought
this appeal, we have determined that § 704(a) is a facially
constitutional statute. See United States v. Perelman,
695 F.3d 866 (9th Cir. 2012), cert. denied, 133 S. Ct. 2383(2013). Because Swisher does not provide any basis for
concluding that § 704(a) is unconstitutional as applied to his
conduct, we affirm the district court’s denial of relief.1
I
Swisher enlisted in the United States Marine Corps on
August 4, 1954, a little over a year after the Korean War
1
We address Swisher’s other claims in an unpublished memorandum
disposition filed concurrently with this opinion.
4 UNITED STATES V. SWISHER
ended. He spent his first year stationed in Middle Camp Fuji,
Japan, and the following two at the Naval Annex in
Bremerton, Washington. In August 1957, he was honorably
discharged from the Marine Corps into the reserves. Upon
discharge, he was given a DD-214 discharge document, a
typewritten form that provided Swisher’s name, education,
type of discharge, last duty assignment, last date of service,
and similar information regarding his military service.
Section 16 of the form required a listing of Swisher’s
“decorations, medals, badges, commendations, citations and
campaign ribbons awarded or authorized.” Section 17 asked
for a list of Swisher’s “wounds received as a result of action
with enemy forces.” In the authenticated copy of Swisher’s
original DD-214, the term “N/A” (not applicable) is typed in
Sections 16 and 17. The form was signed by the personnel
officer for Swisher’s unit, Captain W.J. Woodring.
In 1958, a year after his discharge, Swisher applied for
disability benefits from the former Veterans Administration
(VA) in connection with a shoulder injury stemming from a
drunk driving incident that occurred off base in Washington,
and a nasal operation that took place shortly before he was
discharged. The VA awarded Swisher ten percent disability
for shoulder arthritis, but denied Swisher’s subsequent
applications for increased disability benefits for the same
injuries.
In 2001, more than forty years after his discharge,
Swisher filed a new claim for service-related Post-Traumatic
Stress Disorder (PTSD). In his application, Swisher claimed
he suffered from PTSD as a result of his participation in a
secret combat mission in North Korea in August or
September 1955. Along with his application, Swisher
provided a self-published narrative that described the North
UNITED STATES V. SWISHER 5
Korea operation. According to the narrative, Swisher was
selected for a secret combat mission while stationed at
Middle Camp Fuji, Japan. Swisher and approximately 130
other Marines were flown by helicopter to an unknown
location in China or North Korea. After the unit disembarked
and began to approach a designated hill, it came under heavy
enemy gunfire and sustained significant casualties. Swisher
was severely wounded and flown back to Japan where he
received medical treatment. He later learned he had sustained
a “concussion, broken nose, (lost a piece of meat out of the
right side), broken foot, broken teeth, collar bone separation,
cracked ribs and grenade fragments in both arms, both legs,
and torso.”
While in the Third Battalion Medical Center recovering
from his wounds, Swisher claimed that he and the other
wounded were visited by an unnamed captain, who presented
a Purple Heart to each of the wounded men, including
Swisher. The Captain “then told us that because of the
participation in combat, all the survivors were entitled to and
should wear the National Defense Medal, Korean War
Service Medal and the Korean War U.N. Service Medal and
Ribbons,” along with Navy Commendation Ribbons with a
Bronze V. Swisher claims he also received a Silver Star. The
Captain cautioned the men not to talk about “the incident”
and warned that “anyone who talks will wind up in federal
prison.” When Swisher asked the Captain “exactly where we
had been and what happened to the others,” the Captain “left
abruptly without answering.”
After reviewing Swisher’s application for PTSD benefits
and the accompanying narrative, the VA denied the claim
because Swisher failed to provide corroborating evidence
6 UNITED STATES V. SWISHER
beyond his own statement that his PTSD was service
connected.
Swisher appealed the denial and submitted a photocopy
of a second DD-214, which included the typewritten
comment that “[t]his document replaces the previously issued
transfer document” and “[c]hanges and additions have been
verified by Command.” Section 16 of the second DD-214
stated that Swisher had received the Silver Star, Navy and
Marine Corps Medal with Gold Star, Purple Heart, and Navy
and Marine Corps Expeditionary Medal with Bronze “V.”
Section 17 stated that Swisher had received “[m]ultiple
shrapnel and gunshot [wounds]—September 1955, Korea.”
The form was again signed by Captain W.J. Woodring.
Swisher also submitted a letter signed by Captain Woodring,
dated October 16, 1957, that confirmed Swisher’s
involvement in a “Top Secret” expeditionary mission, and
verified his awards. Based on this information, the VA
reversed its previous decision in July 2004, ruled that
Swisher’s PTSD was a compensable disability, and granted
Swisher a total of $2,366 a month in benefits.2
2
Swisher’s claim that he was awarded a Purple Heart became a key
issue in a criminal trial involving defendant David Hinkson, who was on
trial for solicitation of murder. See United States v. Hinkson, 585 F.3d
1247 (9th Cir. 2009) (en banc). According to testimony at trial in 2004,
Swisher told Hinkson “he was a veteran of the United States Marine Corps
and a firearms expert who had killed a number of people in the Korean
War.” Id. at 1251–52. Apparently impressed by Swisher’s war record,
Hinkson asked him to torture and kill various individuals. Because
Swisher wore a Purple Heart while testifying, the defense counsel
attempted to impeach his credibility by producing military records
showing that Swisher had not been awarded any medals. Id. at 1254. On
re-cross, Swisher produced the replacement DD-214 described above. Id.The district court denied Hinkson’s motion for a mistrial and instructed
the jury to disregard the testimony about whether Swisher had a right to
UNITED STATES V. SWISHER 7
About a year later, the VA received information from the
military personnel division that the replacement DD-214 was
fraudulent. In July 2006, after further investigation
confirmed that the DD-214 was forged, the VA reversed its
determination that the PTSD was service connected and
required Swisher to pay back the PTSD benefits that he had
received.
In July 2007, a grand jury indicted Swisher for four
violations of federal law: (1) wearing unauthorized military
medals in violation of 18 U.S.C. § 704(a); (2) making false
statements to the VA regarding his military service,
disabilities, and honors, in an effort to obtain benefits in
violation of 18 U.S.C. § 1001(a)(2); (3) forging or altering his
certificate of discharge, also in an effort to obtain benefits, in
violation of 18 U.S.C. § 1001(a)(3); and (4) theft of
government funds, in violation of 18 U.S.C. § 641.
During the one-week trial, Lieutenant Colonel Elaine
Hensen, the assistant head for the Military Awards Branch at
Headquarters Marine Corp, discussed her review of the
Marine Corps files and her determination that the files
contained no record of Swisher suffering any injuries in
combat or receiving or being awarded the Purple Heart or any
other medal or award. The government also introduced
Exhibit 67, a photograph showing Swisher and another man
wear a Purple Heart. Id. at 1255. We ultimately upheld Hinkson’s
conviction. Id. at 1268. The parties agreed that any evidence related to
the Hinkson trial would be excluded from Swisher’s trial.
8 UNITED STATES V. SWISHER
in Marine Corps League uniforms.3 In the photograph,
Swisher is wearing several military medals and awards, and
shaking hands with a person in civilian garb. The parties
stipulated that the photograph was authentic. Lt. Col. Henson
testified that the photograph showed Swisher wearing the
Silver Star, the Navy and Marine Corps Ribbon, Purple Heart,
Navy and Marine Corps Commendation Medal with a Bronze
V, and the UMC Expeditionary Medal. She reiterated that
there was nothing “in the United States Marine Corps’ files
. . . to substantiate Mr. Swisher’s entitlement to wear any of
those awards.” In addition, Jeffrey Shattuck, the head of the
Records Correspondence Section for the Personnel
Management Support Branch of the Marine Corps, outlined
in detail the numerous indicia of fraud on Swisher’s
replacement DD-214 and accompanying letter from Captain
Woodring that Swisher had used to verify his awards.
At the conclusion of the trial, the jury found Swisher
guilty on all counts. The court imposed a below-guidelines
sentence of 12 months and one day, with a three-year term of
supervised release. This court affirmed Swisher’s conviction
and sentence on appeal. United States v. Swisher, 360 Fed.
App’x 784 (9th Cir. 2009).
Swisher subsequently challenged his conviction through
a motion under 18 U.S.C. § 2255 and claimed that his
conviction for wearing the medals violated the First
Amendment under the reasoning of the Ninth Circuit’s
intervening decision in United States v. Alvarez, 617 F.3d
1198, 1200 (9th Cir. 2010). The district court denied the
3
The Marine Corps League is a congressionally chartered veterans
organization that has its own Marine-related uniforms. See 36 U.S.C.
§§ 140101–04.
UNITED STATES V. SWISHER 9
motion. See United States v. Swisher, 790 F. Supp. 2d 1215,
1245–46 (D. Idaho 2011). This appeal followed. In the
interim, the Supreme Court affirmed the Ninth Circuit’s
Alvarez decision. See United States v. Alvarez, 132 S. Ct.
2537 (2012).
II
We review de novo a district court’s denial of relief to a
federal prisoner under 28 U.S.C. § 2255. United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).
Section 2255 is a substitute for habeas corpus relief for
federal prisoners, see Davis v. United States, 417 U.S. 333,
343–44 (1974), and allows a petitioner to file a motion to
“vacate, set aside or correct” the petitioner’s conviction or
sentence “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,” 28 U.S.C. § 2255(a). In evaluating a § 2255 motion,
we are not constrained by 28 U.S.C. § 2254(d), which
precludes federal courts from granting habeas relief to a state
prisoner with regard to any claim adjudicated on the merits
unless the adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established” Supreme Court precedent, or “resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” Section 2255 does not have a similar
restriction on review of claims by federal prisoners.
Although Swisher’s challenge to his conviction is based
on a Supreme Court decision decided after his conviction
10 UNITED STATES V. SWISHER
became final, we are not barred from considering his claim.
Teague v. Lane, 489 U.S. 288 (1989), generally precludes the
application of “new constitutional rules of criminal
procedure” to cases that “have become final before the new
rules are announced.” Bousley v. United States, 523 U.S.
614, 619–20 (1998) (internal quotation marks omitted).
While Teague is applicable in the § 2255 context, see United
States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir.
2002), Teague does not bar the retroactive application of
decisions holding “that a substantive federal criminal statute
does not reach certain conduct,” Bousley, 523 U.S. at 620(internal quotation marks omitted), and Alvarez is a
substantive decision of that sort. Nor does Swisher’s failure
to raise his constitutional claim at trial or on direct appeal
prevent us from reviewing his claim. Although federal
prisoners are generally barred from raising claims on
collateral review that they could have raised on direct appeal,
see Bousley, 523 U.S. at 621, the government can waive a
procedural default defense by failing to raise it, see United
States v. Barron, 172 F.3d 1153, 1156–57 (9th Cir. 1999) (en
banc), and has done so here.
III
On appeal, Swisher contends that the Supreme Court’s
decision in Alvarez, which struck down § 704(b)’s prohibition
on making false claims regarding medals as facially
unconstitutional, applies equally to § 704(a)’s prohibition on
the unauthorized wearing of medals, the provision under
which Swisher was convicted.
UNITED STATES V. SWISHER 11
A
We begin by considering the applicable legal framework.
At the time of Swisher’s relevant conduct, § 704 had two
substantive prohibitions. Section 704(a), the provision under
which Swisher was convicted, criminalized the unauthorized
wearing of “any decoration or medal authorized by Congress
for the armed forces of the United States . . . except when
authorized under regulations made pursuant to law.”4 Section
704(b), added by the Stolen Valor Act of 2005, Pub. L. No.
109-437 § 3, 120 Stat. 3266, prohibited anyone from “falsely
represent[ing] himself or herself, verbally or in writing, to
have been awarded any decoration or medal authorized by
Congress for the Armed Forces of the United States.”
4
At the time of Swisher’s offense, the provision read:
In general. —Whoever knowingly wears, purchases,
attempts to purchase, solicits for purchase, mails, ships,
imports, exports, produces blank certificates of receipt
for, manufactures, sells, attempts to sell, advertises for
sale, trades, barters, or exchanges for anything of value
any decoration or medal authorized by Congress for the
armed forces of the United States, or any of the service
medals or badges awarded to the members of such
forces, or the ribbon, button, or rosette of any such
badge, decoration or medal, or any colorable imitation
thereof, except when authorized under regulations made
pursuant to law, shall be fined under this title or
imprisoned not more than six months, or both.
18 U.S.C. § 704(a) (2008 ed.). Congress has since removed the word
“wears” from the list of prohibited actions. See 18 U.S.C. § 704(a). That
is, § 704(a) no longer prohibits the conduct for which Swisher was
convicted.
12 UNITED STATES V. SWISHER
In Alvarez, the defendant was convicted under § 704(b)
for falsely claiming that he had received the Congressional
Medal of Honor. 132 S. Ct. at 2542. The defendant
challenged his conviction on the ground that § 704(b) was a
content-based suppression of pure speech and therefore
facially unconstitutional under the First Amendment. Id. at
2543. The Supreme Court agreed, and invalidated § 704(b)
as facially violating the First Amendment, though no
rationale commanded a majority. A four-justice plurality
agreed that false speech was generally entitled to protection
under the First Amendment, id. at 2547, and held that
§ 704(b) was a content-based restriction subject to “the most
exacting scrutiny,” id. at 2547–48. Applying this test, the
plurality held that § 704(b) did not survive strict scrutiny
because the government had not carried its burden of showing
that there was a close fit between the restriction imposed and
the injury to be prevented or that the government had chosen
the least restrictive means available to achieve its ends. Id. at
2550–51.
Two other justices agreed with the result, but took a
different analytical approach. See id. at 2551 (Breyer, J.,
concurring). These justices read the Stolen Valor Act
narrowly, as criminalizing “only false factual statements
made with knowledge of their falsity and with the intent that
they be taken as true.” Id. at 2552–53. Because “[s]uch false
factual statements are less likely than are true factual
statements to make a valuable contribution to the marketplace
of ideas,” the concurrence applied intermediate scrutiny. Id.
at 2552. The two justices would have held that § 704(b)
failed to pass muster under intermediate scrutiny, because the
government could achieve its objectives in less burdensome
ways. Id. at 2555–56.
UNITED STATES V. SWISHER 13
While Alvarez did not mention § 704(a)’s prohibition on
the wearing of medals without authorization, we subsequently
addressed § 704(a)’s constitutionality in light of Alvarez. See
United States v. Perelman, 695 F.3d 866 (9th Cir. 2012). In
Perelman, the defendant claimed that a self-inflicted gunshot
wound was actually a service-related shrapnel injury. Id. at
868. Based on this misrepresentation, the government
awarded him a Purple Heart, and he received more than
$180,000 in military benefits from the VA. Id. After the
government discovered the fraud, it indicted the defendant for
violating § 704(a) by wearing the Purple Heart without legal
authorization. Id.
The defendant did not argue that he was entitled to First
Amendment protection for his conduct in intentionally
wearing a fraudulently obtained medal; rather, he argued that
§ 704(a) on its face was unconstitutionally overbroad because
it criminalized innocent conduct that was inherently
expressive and protected by the First Amendment. According
to the defendant, § 704(a)’s broad prohibition on wearing
military medals without authorization could sweep in the
following individuals:
Actors who have worn military medals (or
colorable imitations) in films or other
theatrical productions; schoolchildren who
have worn medals given to them by soldiers;
grieving spouses or parents who have worn
medals at military funerals; grandchildren
who have worn their grandparents’ medals in
Veterans Day parades; children and adults
who have worn medals (or colorable
imitations) to Halloween costume parties;
others who may have worn medals as part of
14 UNITED STATES V. SWISHER
other artistic expression, such as a
hypothetical band called “The Purple Hearts”;
others who have worn them simply as a
fashion statement or because they like the way
the medals look; a metal-worker who created
a replica of a Silver Star in the privacy of his
workshop, put it on, and then immediately
melted it down; and a protestor who has
dressed up like a Guantanamo prisoner and, to
make a political statement, wore a friend’s
medal.
Id. at 870. The individuals in these situations share one
common feature: they all wore the medals without having
any intention of falsely communicating that they had been
awarded the medals by government authorities. But
Perelman argued that the statute nevertheless reached such
conduct.
Agreeing that § 704(a) could “raise serious constitutional
concerns” if read so broadly, “as a matter of pure statutory
interpretation, constitutional avoidance, or both” Perelman
interpreted § 704(a) as criminalizing “the unauthorized
wearing of medals only when the wearer intends to deceive.”
Id. “By prohibiting the wearing of a colorable imitation and
by including a scienter requirement, Congress made clear that
deception was its targeted harm.” Id. at 870–71. The word
“deceive” means “to make (a person) believe what is not
true.” Webster’s New World College Dictionary 374 (4th ed.
2005). Because § 704(a) requires the government to prove
that the defendant attempted to make a third party believe
something that was not true, the statute would not criminalize
the conduct of “the grieving widow, the proud grandchild, the
actor on stage, and the protestor” who wore a medal without
UNITED STATES V. SWISHER 15
any such intent to deceive. Id. at 871. Section 704(a), then,
applies only to individuals who wear medals for the purpose
of falsely communicating they are entitled to wear them, as
opposed to individuals who wear the medals to express grief,
honor, or some other non-deceptive message. Id.
Having adopted this narrowing construction, Perelman
rejected the argument that § 704(a) violated the First
Amendment under the plurality’s reasoning in Alvarez. It
noted that while § 704(b) was a “content-based suppression
of pure speech,” § 704(a) was not. Id. (internal quotation
marks omitted). First, § 704(a) regulated harmful conduct
(deceptively wearing a medal), and “[e]ven if we assume that
the intentionally deceptive wearing of a medal contains an
expressive element—the false statement that ‘I received a
medal’—the distinction between pure speech and conduct
that has an expressive element separates this case from
Alvarez.” Id. at 871. Second, Perelman concluded that
§ 704(a) was content-neutral because its goal of “preventing
the intentionally deceptive wearing of medals” was unrelated
to the suppression of a particular viewpoint. Id. at 872.
Given these conclusions, Perelman determined that § 704(a)
survived scrutiny under the test set forth in United States v.
O’Brien, 391 U.S. 367 (1968), for content-neutral statutes
that have the effect (but not purpose) of regulating some
speech. Id. at 872–73. Accordingly, Perelman upheld the
constitutionality of § 704(a).
B
We now turn to Swisher’s claim that his conviction
violated the Constitution. The nub of Swisher’s argument is
that his conduct in wearing the medals qualifies as expressive
conduct, and therefore the application of § 704(a) to him
16 UNITED STATES V. SWISHER
violated his First Amendment rights. To support the
argument that he was engaged in expressive conduct, he
states that “[b]y wearing said medals, Swisher was
communicating that he had served in the military, performed
acts in the military that were worthy of recognition and that
he was in-fact recognized,” and that “[t]he average person
who viewed the medals on Swisher’s clothing would
understand that Swisher served in the military and performed
acts worthy of commendation without further explanation.”
We cannot pursue this line of reasoning, because it is
foreclosed by Perelman. Perelman held that § 704(a) was not
“a content-based suppression of pure speech,” but rather
criminalized “the harmful conduct of wearing a medal
without authorization and with intent to deceive.” Id. at 871.
Swisher acknowledges that he knowingly wore medals in
order to communicate to others that he was “worthy of
commendation.” Indeed, the authenticated photograph
introduced at trial documented that Swisher wore several
medals at a Marine Corps League function. There was no
evidence that Swisher wore the medals innocently as an actor,
grieving spouse or parent, or as part of a Halloween costume.
Cf. id. at 870. Finally, the government presented extensive
evidence that Swisher was not entitled to wear those medals,
as no military record documented the awards or Swisher’s
claimed combat injuries. Taken together, this evidence
demonstrates that Swisher wore the medals for the purpose of
claiming that he was “worthy of commendation,” when in
fact he was not. Given Perelman’s conclusion that the First
Amendment does not prevent Congress from criminalizing
the act of wearing military medals without authorization and
with an intent to deceive, Swisher’s constitutional challenge
to his conviction under § 704(a) fails.
UNITED STATES V. SWISHER 17
Swisher raises two arguments against this conclusion.5
First, Swisher argues that the government failed to present
evidence that he wore the medals specifically in connection
with his attempts to obtain benefits from the VA, and, as a
result, there was inadequate evidence of intent to deceive.
Swisher misreads Perelman. Nothing in § 704(a) or
Perelman requires the government to prove that the wearer
wore the medals as part of a scheme to obtain money or
benefits.
Second, Swisher argues that Perelman was wrongly
decided. According to Swisher, wearing a medal with the
intent to deceive conveys a particular false message (“I am
entitled to wear this medal”). Because § 704(b) is aimed at
prohibiting this specific message, Swisher claims, it is not
content-neutral, but rather a content-based prohibition of
inherently expressive conduct. In certain circumstances, the
Supreme Court has recognized similar symbolic conduct as
inherently expressive and therefore deserving of heightened
First Amendment protection. See Texas v. Johnson, 491 U.S.
397, 404–06 (1989) (holding that burning the American flag
was expressive conduct protected by the First Amendment);
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969) (holding that wearing black armbands to protest
5
Swisher notes in passing that because Perelman was decided after his
conviction, the jury was not instructed that it needed to find an intent to
deceive. Swisher did not raise this argument at trial (indeed, he barely
presses it on appeal), and we conclude that any error in omitting this new
element from the jury instructions was harmless. Given the overwhelming
evidence that Swisher wore the medals with an intent to deceive, any error
in the jury instructions did not have a “‘substantial and injurious effect or
influence in determining the jury’s verdict.’” United States v. Montalvo,
331 F.3d 1052, 1057 (9th Cir. 2003) (quoting Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)).
18 UNITED STATES V. SWISHER
Vietnam War was “the type of symbolic act that is within the
Free Speech Clause” and “was closely akin to ‘pure speech’
which, we have repeatedly held, is entitled to comprehensive
protection under the First Amendment”). Under these
precedents, Swisher argues, wearing a medal with intent to
deceive is inherently expressive conduct entitled to
heightened scrutiny, and therefore we are bound by Alvarez’s
conclusion that a ban on such speech is unconstitutional.
Regardless of the strength of Swisher’s arguments, we are
not free to reconsider Perelman or depart from its reasoning.
We may overrule a prior decision by a three-judge panel only
when there is intervening higher authority that is clearly
irreconcilable with the prior decision. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). Absent such a
decision by an en banc panel or a Supreme Court decision,
see, e.g., Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001), a change in regulatory interpretation, see Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
1002–03 (2005), or a change in state supreme court
interpretation of that state’s law, see Sandstrom v. Montana,
442 U.S. 510, 516–17 (1979), “a later three-judge panel . . .
has no choice but to apply the earlier-adopted rule.” Hart,
266 F.3d at 1171. Here, there is no such intervening
authority, and Perelman compels us to reject Swisher’s
challenge to § 704(a).6
Because § 704(a) can be constitutionally applied to
Swisher’s conduct, there was no “violation of the
6
The concurrence acknowledges that despite its view that Perelman was
wrongly decided, “as a three-judge panel, we are bound by Perelman.”
UNITED STATES V. SWISHER 19
Constitution or laws of the United States,” 28 U.S.C.
§ 2255(a), presented by Swisher’s collateral attack under
§ 2255.
AFFIRMED.
TASHIMA, Circuit Judge, concurring in the judgment:
I concur in the result reached by the majority, but only
under the compulsion of United States v. Perelman, 695 F.3d
866 (9th Cir. 2012), cert. denied, 133 S. Ct. 2382 (2013).
While the majority faithfully applies Perelman, Perelman
itself ignores the teaching of United States v. Alvarez, 132 S.
Ct. 2537 (2012), and sanctions the punishment of pure
speech, solely because that speech is a falsehood. Because I
cannot agree with Perelman’s reasoning, I concur only in the
judgment.
Elven Swisher wore military medals without authority to
a Marine Corps League event and was convicted of violating
18 U.S.C. § 704(a). The record contains only one photograph
of that event. No evidence suggests that Swisher wore the
medals in any other context, and no evidence connects
Swisher’s wearing of the medals to his scheme wrongfully to
obtain benefits from the Department of Veterans Affairs or its
predecessor the Veterans Administration, or any other
fraudulent scheme. Swisher was convicted because he told a
lie. I do not believe that § 704(a) should be read to punish
such pure speech.
Perelman was a facial First Amendment challenge to
§ 704(a). The panel held that implying an intent to deceive
20 UNITED STATES V. SWISHER
as an element of the crime cured any First Amendment
problem. 695 F.3d at 871 (“Accordingly, we hold that a
person violates the unauthorized wearing portion of 18 U.S.C.
§ 704(a) only if he or she has an intent to deceive.”). As
construed by the majority, Perelman’s “intent to deceive” is
nothing more than the intent to tell a lie. See Maj. Op. at 14
(adopting dictionary definition of “deceive” as meaning “to
make (a person) believe what is not true”); id. at 15 (§ 704(a)
“applies only to individuals who wear the medal for the
purpose of falsely communicating they are entitled to wear
them”). This is hardly a “narrowing construction” of the
statute. Id. at 15 Adding intent to deceive as an element adds
nothing to “intent to wear the medal.” It has no narrowing or
limiting force. Perelman and the majority’s interpretation of
Perelman turn § 704(a) into a statute that criminalizes false
speech per se.
But we have observed that criminalizing pure speech is
contrary to the First Amendment. See United States v.
Alvarez, 671 F.3d 1198, 1213 (9th Cir. 2010) (“We are aware
of no authority holding that the government may, through a
criminal law, prohibit speech simply because it is knowingly
factually false.”), aff’d, 132 S. Ct. 2537 (2012). We further
observed in Alvarez that:
we presumptively protect all speech against
government interference, leaving it to the
government to demonstrate, either through a
well-crafted statute or case-specific
application, the historical basis for a
compelling need to remove some speech from
UNITED STATES V. SWISHER 21
protection . . . for some reason other than the
mere fact that it is a lie [].
Id. at 1205.
More importantly Perelman and the majority’s
application of it in this as-applied challenge, are contrary to
the Supreme Court’s teaching in Alvarez. As the majority
reads Perelman, it allows a general “threat of liability or
criminal punishment to roam at large, discouraging or
forbidding the telling of [a] lie in contexts where harm is
unlikely or the need for [a] prohibition small.” Alvarez,
132 S. Ct. at 2555 (Breyer, J., concurring in the judgment).
It simply sweeps too broadly in terms of the First
Amendment. It ignores that “cases that condone the
criminalization of false speech involve some sort of ‘legally
cognizable harm associated with [the] false statement.’”
United States v. Keyser, 704 F.3d 631, 640 (9th Cir. 2012).
It fails to understand § 704(a) “with the commands of the
First Amendment clearly in mind.” United States v.
Bagdasarian, 652 F.3d 1113, 1116 (9th Cir 2011) (quoting
Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam)
(internal quotation marks omitted)). It construes § 704(a) as
a statute that criminalizes false speech per se.
I quote just a few passages from Alvarez to illustrate just
how far from the teaching of Alvarez both Perelman and the
majority’s application of it have strayed:
! Absent from those few categories where the law
allows content-based regulations of speech is any
general exception to the First Amendment for false
22 UNITED STATES V. SWISHER
statement. Alvarez, 132 S. Ct. at 2544 (Kennedy, J.,
plurality opinion).1
! The court has never endorsed the categorical rule the
Government advances: that false statements receive
no First Amendment protection. Id. at 2545.
! [O]ur law and tradition . . . reject[] the notion that
false speech should be in a general category that is
presumptively unprotected. Id. at 2546–47.
! The Government has not demonstrated that false
statements generally should constitute a new category
of unprotected speech on this basis. Id. at 2547.
! Were the Court to hold that the interest in truthful
discourse alone is sufficient to sustain a ban on
speech, absent any evidence that the speech was used
to gain a material advantage, it would give
government a broad censorial power unprecedented in
the Court’s cases or in our constitutional tradition.
The mere potential for the exercise of that power casts
a chill, a chill the First Amendment cannot permit if
free speech, thought, and discourse are to remain a
foundation of our freedom. Id at 2547–48.
! [T]he [Stolen Valor] Act conflicts with free speech
principles. Id at 2548.
Finally, Perelman’s limiting effort – the addition of
“intent to deceive” as an element of § 704(a) – was not even
1
The bullet-point quotations that follow are also from the plurality
opinion.
UNITED STATES V. SWISHER 23
necessary and is incomplete. Perelman holds that “[b]ecause
the statute requires an intent to deceive, the examples listed
above do not fall within the scope of the statute.” 695 F.3d
at 871. But no one ever contended that the Stolen Valor Act
reached such examples – movies, theatrical productions,
school children, Halloween costumes, and parades. See id. at
870 (listing examples). In fact, the Alvarez plurality assumed
“that [the Stolen Valor Act] would not apply to, say, a
theatrical performance.” 132 S. Ct. at 2547 (citing Milkovich
v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). More
troubling, however, is that Perelman fails to address the very
evil addressed by Justice Breyer’s concurrence in Alvarez:
[F]ew statutes, if any simply prohibit without
limitation the telling of a lie, even a lie about
one particular matter. Instead, in virtually all
these instances limitations of context,
requirements of proof of injury, and the like,
narrow the statute to a subset of lies where
specific harm is more likely to occur. The
limitations help to make certain that the
statute does not allow its threats of liability or
criminal punishment to roam at large,
discouraging or forbidding the telling of the
lie in contexts where harm is unlikely or the
need for the prohibition is small.
The statute before us [i.e., the Stolen
Valor Act] lacks any such limiting features.
It may be construed to prohibit only knowing
and intentional acts of deception about readily
verifiable facts within the personal knowledge
of the speaker, thus reducing the risk that
valuable speech is chilled. But it still ranges
24 UNITED STATES V. SWISHER
very broadly. And that breadth means that it
creates a significant risk of First Amendment
harm. As wrtten, it applies in family, social,
or other private contexts, where lies will often
cause little harm. It also applies in political
contexts, where although such lies are more
likely to cause harm, the risk of censorious
selectivity by prosecutors is also high. . . .
And so the prohibition may be applied where
it should not be applied, for example to bar
stool braggadocio or, in the political arena,
subtly but selectively to speakers that the
Government does not like. These
considerations lead me to believe that the
statute as written risks significant First
Amendment harm.
Id. at 2555 (Breyer, J., concurring in the judgment) (emphasis
added).
Even accepting Perelman on its own terms that, unlike
§ 704(b)’s content-based restriction on speech, § 704(a) is
aimed at suppressing conduct, the majority recognizes the
inherent tension between Perelman and Supreme Court
precedent, noting that “[i]n certain circumstances, the
Supreme Court has recognized similar symbolic conduct as
inherently expressive and therefore deserving of heightened
First Amendment protection.” Maj. Op. at 17 (citing Texas
v. Johnson, 491 U.S. 397, 404–06 (1989) (holding that
burning the American flag was expressive conduct protected
by the First Amendment); Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 313 U.S. 503,506 (1969) (holding that wearing
black armbands to protest Vietnam War was “the type of
symbolic act that is within the Free Speech Clause” and “was
UNITED STATES V. SWISHER 25
clearly akin to ‘pure speech’ which, [the Court has]
repeatedly held, is entitled to comprehensive protection under
the First Amendment”)). No conduct can be more “inherently
expressive and therefore deserving of heightened First
Amendment protection” than the wearing of a military medal
at a Marine Corps League event.
As the foregoing discussion demonstrates, there is, at the
least, substantial doubt as to whether Perelman was correctly
decided. I recognize, however, that, as a three-judge panel,
we are bound by Perelman. See Hart v. Massanari, 266 F.3d
1155, 1171 (9th Cir. 2001). I therefore reluctantly concur in
the judgment.