United States v. David Perelman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10571
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00443-KJD-
DAVID M. PERELMAN,  LRL-1
Defendant-Appellant. ORDER AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
July 11, 2011—San Francisco, California
Filed September 26, 2011
Amended August 28, 2012
Before: Procter Hug, Jr., Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
9931
UNITED STATES v. PERELMAN 9933
COUNSEL
Alina M. Shell and Rene L. Valladares, Assistant Federal
Public Defenders, Las Vegas, Nevada, for the defendant-
appellant.
Roger Yang, Assistant United States Attorney, Las Vegas,
Nevada, for the plaintiff-appellee.
Allen Lichtenstein, ACLU of Nevada, Las Vegas, Nevada, for
the amicus curiae.
ORDER
The opinion filed on September 26, 2011, and published at
658 F.3d 1134, is amended by the opinion filed concurrently
with this order.
9934 UNITED STATES v. PERELMAN
With these amendments, the panel has voted to deny the
petition for panel rehearing. Judges Silverman and Graber
have voted to deny the petition for rehearing en banc, and
Judge Hug has so recommended.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on it.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for panel rehearing
or rehearing en banc will be entertained. The stay of the issu-
ance of the mandate filed on October 25, 2011, is lifted.
OPINION
GRABER, Circuit Judge:
Defendant David M. Perelman fraudulently obtained a Pur-
ple Heart and wore it in public. The government indicted him
for violating 18 U.S.C. § 704(a), which prohibits (among
other things) the unauthorized wearing of military medals.
Defendant pleaded guilty but reserved his right to appeal the
district court’s rejection of his First Amendment facial chal-
lenge to the statute. Reviewing de novo the constitutionality
of the statute, United States v. Vongxay, 594 F.3d 1111, 1114
(9th Cir.), cert. denied, 131 S. Ct. 294 (2010), we affirm.
Defendant served in Vietnam for approximately three
months in 1971. Twenty years later, he accidentally shot him-
self in the right thigh. He later claimed that the self-inflicted
gunshot wound was a shrapnel injury sustained during his ser-
vice in Vietnam. The United States Air Force awarded him a
Purple Heart and other medals in 1994. Because of his receipt
of the Purple Heart and other medals, the Veterans Adminis-
tration gave Defendant more than $180,000 in disability bene-
fits. The government alleged that Defendant wore a Purple
UNITED STATES v. PERELMAN 9935
Heart to a national convention of the Military Order of the
Purple Heart in Las Vegas, Nevada.
After the government discovered the fraud, it indicted
Defendant on two counts. Count One alleged that Defendant
stole from the Veterans Administration by obtaining disability
benefits under false pretenses, in violation of 18 U.S.C. § 641.
Count Two alleged that Defendant wore the Purple Heart
“without authorization under regulations made pursuant to
law,” in violation of 18 U.S.C. § 704(a).
Defendant moved to dismiss Count Two on the ground that
the statute facially violates the First Amendment. The district
court denied the motion. Defendant thereafter admitted the
factual allegations and pleaded guilty to both counts. Defen-
dant waived all his rights to appeal except for the right to
appeal the district court’s denial of his motion to dismiss
Count Two.
The district court sentenced Defendant to imprisonment of
12 months and one day on Count One and imprisonment of
10 months on Count Two, to be served concurrently. The dis-
trict court also sentenced Defendant to three years’ supervised
release on Count One and one year’s supervised release on
Count Two, to be served concurrently.
Defendant timely appeals. We granted the motion of the
American Civil Liberties Union of Nevada to become amicus
curiae in support of Defendant.
Title 18 U.S.C. § 704 states, in relevant part:
(a) In general. Whoever knowingly wears, pur-
chases, attempts to purchase, solicits for purchase,
mails, ships, imports, exports, produces blank certifi-
cates of receipt for, manufactures, sells, attempts to
sell, advertises for sale, trades, barters, or exchanges
for anything of value any decoration or medal autho-
9936 UNITED STATES v. PERELMAN
rized 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 rib-
bon, 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.
(b) False claims about receipt of military decora-
tions or medals. Whoever falsely represents himself
or herself, verbally or in writing, to have been
awarded any decoration or medal authorized by Con-
gress for the Armed Forces of the United States, any
of the service medals or badges awarded to the mem-
bers of such forces, the ribbon, button, or rosette of
any such badge, decoration, or medal, or any color-
able imitation of such item shall be fined under this
title, imprisoned not more than six months, or both.
Enhanced penalties apply to violations involving certain med-
als, including the Purple Heart. Id. § 704(c), (d).
[1] Defendant pleaded guilty to the portion of subsection
(a) that criminalizes the act of “knowingly wear[ing]” a
medal: “Whoever knowingly wears . . . any decoration or
medal authorized by Congress for the armed forces of the
United States . . . or any colorable imitation thereof, except
when authorized under regulations made pursuant to law,” is
guilty of a crime.1 Id. § 704(a). Defendant does not argue that
his conduct—intentionally wearing a fraudulently obtained
medal—deserves First Amendment protection. That is, he
does not challenge the statute as applied to him. Instead, he
1
We emphasize that we interpret only the “knowingly wears” portion of
§ 704(a). We do not address the other actions criminalized by the statute,
such as the unauthorized importing, selling, or manufacturing of medals.
UNITED STATES v. PERELMAN 9937
brings a facial First Amendment challenge to the statute. He
argues that, on its face, the statute is overbroad.2
“The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers.” Williams, 553 U.S. at 293. The challenged statute
states: “Whoever knowingly wears . . . any decoration or
medal authorized by Congress for the armed forces of the
United States . . . or any colorable imitation thereof, except
when authorized under regulations made pursuant to law,” is
guilty of a crime. 18 U.S.C. § 704(a). By its terms, anyone
who “knowingly wears” a military medal or “colorable imita-
tion thereof” has committed a crime, “except when authorized
under regulations made pursuant to law.” Id.
[2] The parties have directed us to very few regulations
authorizing the wearing of medals. Under those regulations,
the valid recipient of a military medal is the only person who
may wear the medal. See, e.g., 32 C.F.R. § 507.12(a) (“The
wearing of any decoration, service medal, badge, service rib-
bon, lapel button, or insignia prescribed or authorized by the
Department of the Army and the Department of the Air Force
2
Defendant also brings a facial vagueness challenge. But the statute is
not vague: It prohibits anyone from knowingly wearing a military medal
if he or she lacks authorization to wear it. The statute “provide[s] a person
of ordinary intelligence fair notice of what is prohibited.” United States v.
Williams, 553 U.S. 285, 304 (2008).
Defendant’s only argument on this point is that the district courts and
the government have expressed varying views “regarding how a person
obtains authorization to wear a medal pursuant to § 704.” Assuming that
there is ambiguity as to how to request authorization, that does not render
the criminal provision vague or ambiguous. Even if there is uncertainty
concerning how one could obtain authorization, the statute makes clear
that a person who has not received authorization may not wear a medal.
Defendant does not assert, and cannot assert, that a class of persons exists
who are uncertain whether the authorization that they have received is
valid; Defendant’s arguments all concern persons who have not received
any authorization at all. The statute is not vague with respect to them.
9938 UNITED STATES v. PERELMAN
by any person not properly authorized to wear such device
. . . is prohibited.” (emphasis added)); Army Regulation 670-
1, available at http://www.apd.army.mil/pdffiles/r670_1.pdf,
Rule 1-4(d) (“[N]o person except a member of the U.S. Army
may wear the uniform, or a distinctive part of the uniform of
the U.S. Army unless otherwise authorized by law.”). To our
knowledge, there are no regulations permitting any person
other than the valid recipient to wear a military medal in any
circumstances.
Defendant asserts, then, that any person other than the valid
recipient who wears a military medal, or a colorable imitation
thereof, is guilty of a crime, regardless of context or circum-
stances. From that premise, Defendant and amicus provide a
long list of examples of conduct that one typically thinks of
as harmless or protected speech, but that would constitute a
crime under Defendant’s reading of the statute. For instance,
under that reading, the following persons have committed a
crime: Actors who have worn military medals (or colorable
imitations) in films or other theatrical productions; schoolchil-
dren who have worn medals given to them by soldiers; griev-
ing 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 cos-
tume parties; others who may have worn medals as part of
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. Defendant argues that those examples render
the statute overbroad under the “second type of facial chal-
lenge” recognized by the Supreme Court in the First Amend-
ment context, “whereby a law may be invalidated as
overbroad if a substantial number of its applications are
UNITED STATES v. PERELMAN 9939
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” United States v. Stevens, 130 S. Ct. 1577,
1587 (2010) (internal quotation marks omitted).
The statute could be read as broadly as Defendant suggests.
We agree with Defendant that such a broad statute might raise
serious constitutional concerns. See id. (holding that a federal
law criminalizing the possession of animal cruelty videos and
photographs was facially overbroad because the statute “ap-
plies to common depictions of ordinary and lawful activities,
and that these depictions constitute the vast majority of mate-
rials subject to the statute”). Because Defendant’s reading
raises a “serious doubt” as to the statute’s constitutionality,
we must “first ascertain whether a construction of the statute
is fairly possible by which the question may be avoided.”
Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (internal quota-
tion marks omitted).
[3] Whether as a matter of pure statutory interpretation,
constitutional avoidance, or both, we disagree with Defen-
dant’s expansive reading of the statute. In our view, Congress
intended to criminalize the unauthorized wearing of medals
only when the wearer intends to deceive. We draw our con-
clusion from the fact that the statute requires that a person
“knowingly wear[ ]” a medal “or any colorable imitation
thereof.” 18 U.S.C. § 704(a) (emphases added). Read in con-
text, it is clear that Congress sought to prevent the deceptive
use of military medals. The statute does not aim to preserve
only the correct use of valid military medals, that is, the phys-
ical objects sanctioned by the government. By prohibiting the
wearing of a colorable imitation and by including a scienter
requirement, Congress made clear that deception was its tar-
geted harm. See United States v. Goeltz, 513 F.2d 193, 197
(10th Cir. 1975) (interpreting the very similarly worded provi-
sion at 18 U.S.C. § 701, which criminalizes unauthorized pos-
session of government identifications or colorable imitations
thereof,3 and holding that “[t]he enactment of § 701 was
3
Section 701 states: “Whoever . . . possesses any badge, identification
card, or other insignia, of the design prescribed by the head of any depart-
9940 UNITED STATES v. PERELMAN
intended to protect the public against the use of a recognizable
assertion of authority with intent to deceive” (emphasis
added)); see also United States v. Roe, 575 F. Supp. 2d 690,
692 (D. Md. 2008) (stating that the government itself
advanced the position that § 701 requires an intent to deceive,
but not reaching the issue). Accordingly, we hold that a per-
son violates the unauthorized wearing portion of 18 U.S.C.
§ 704(a) only if he or she has an intent to deceive.
[4] Because the statute requires an intent to deceive, the
examples listed above do not fall within the scope of the stat-
ute. For instance, because the grieving widow, the proud
grandchild, the actor on stage, and the protestor lack an intent
to deceive, the wearing of the medals in those circumstances
does not fall within the criminal statute. Accordingly, Defen-
dant’s facial overbreadth challenge fails.
In United States v. Alvarez, 132 S. Ct. 2537 (2012), the
Supreme Court held that § 704(b), which criminalizes false
statements about the receipt of military decorations or medals,
is unconstitutional. But § 704(b) is “a content-based suppres-
sion of pure speech,” which is “presumed invalid.” Id. at
2543-44. Here, we interpret § 704(a), which criminalizes not
pure speech, but instead the harmful conduct of wearing a
medal without authorization and with intent to deceive. The
use of a physical object goes beyond mere speech and sug-
gests that the wearer has proof of the lie, or government
endorsement of it.
ment or agency of the United States for use by any officer or employee
thereof, or any colorable imitation thereof, . . . except as authorized under
regulations made pursuant to law” is guilty of a crime.
Section 704(a) states: “Whoever knowingly wears . . . any decoration
or medal authorized by Congress for the armed forces of the United States,
. . . or any colorable imitation thereof, except when authorized under regu-
lations made pursuant to law,” is guilty of a crime.
UNITED STATES v. PERELMAN 9941
[5] Similarly, the Supreme Court held that “the sweeping,
quite unprecedented reach of [§ 704(b)] puts it in conflict with
the First Amendment.” Id. at 2547. By contrast, § 704(a)
reaches only intentionally deceptive acts, thus limiting the
statute’s reach to a narrow range of conduct similar to that
prohibited by impersonation statutes. See, e.g., 18 U.S.C.
§ 912 (criminalizing the impersonation of an officer or
employee of the United States). Defendant effectively argues
that the First Amendment protects the fraudster’s knowingly
fraudulent activity: knowingly wearing a military medal with-
out authorization and with intent to deceive. Whereas
§ 704(b) criminalizes pure speech, § 704(a) criminalizes cer-
tain specified activities4 limited by a scienter requirement.
Even 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. Indeed, in Alvarez, the Supreme Court
distinguished examples such as impersonation statutes by
explaining that they “implicate fraud or speech integral to
criminal conduct.” 132 S. Ct. at 2546. We conclude that wear-
ing a military medal with an intent to deceive falls within that
same category. Indeed, Defendant did not preserve or bring to
us for decision an as-applied challenge to his conviction, most
likely in recognition that his own fraudulent activities do not
deserve First Amendment protection.
Likewise, earlier Supreme Court precedent strongly sug-
gests that § 704(a) survives First Amendment scrutiny. In
Schacht v. United States, 398 U.S. 58 (1970), the Supreme
Court addressed a constitutional challenge to 18 U.S.C. § 702,
which bars the unauthorized wearing of military uniforms.
The Court held that an implementing regulation that permitted
actors to wear uniforms only if they did not criticize the gov-
ernment was unconstitutional. Id. at 63. But the Court began
4
We note that most of the activities banned in § 704(a) are not expres-
sive, for example, buying and selling military medals and manufacturing
replicas.
9942 UNITED STATES v. PERELMAN
its analysis by noting that “[o]ur previous cases would seem
to make it clear that 18 U.S.C. § 702, making it an offense to
wear our military uniforms without authority is, standing
alone, a valid statute on its face.” Id. at 61 (citing United
States v. O’Brien, 391 U.S. 367 (1968)).
Defendant here does not challenge an implementing regula-
tion, as the defendant in Schacht had. Instead, Defendant chal-
lenges § 704(a) on its face. The Supreme Court’s dictum
concerning § 702 strongly suggests that, like that statute,
§ 704(a) “is, standing alone, a valid statute on its face.” Id.;
see Coeur d’Alene Tribe of Idaho v. Hammond, 384 F.3d 674,
683 (9th Cir. 2004) (“[O]ur precedent requires that we give
great weight to dicta of the Supreme Court.”).
[6] Under O’Brien, “a government regulation is suffi-
ciently justified if it is within the constitutional power of the
Government; if it furthers an important or substantial govern-
mental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” 391 U.S. at 377.
Defendant does not dispute that the regulation of military
medals is within the power of the government. And we
recently held in Alvarez that the government has a compelling
interest in “preserving the integrity of its system of honoring
our military men and women for their service and, at times,
their sacrifice.” 617 F.3d at 1216. The government similarly
has a compelling interest in preventing the intentionally
deceptive wearing of medals. Those interests are unrelated to
the suppression of free expression because, unlike the imple-
menting regulation at issue in Schacht, § 704(a) does not pre-
vent the expression of any particular message or viewpoint.
Instead, § 704(a) promotes compelling governmental interests
by barring fraudulent conduct.
[7] The final prong of the O’Brien test asks whether “the
incidental restriction on alleged First Amendment freedoms is
UNITED STATES v. PERELMAN 9943
no greater than is essential to the furtherance of that interest.”
391 U.S. at 377. The Court has explained more recently that
“ ‘an incidental burden on speech is no greater than is essen-
tial, and therefore is permissible under O’Brien, so long as the
neutral regulation promotes a substantial government interest
that would be achieved less effectively absent the regula-
tion.’ ” Rumsfeld v. Forum for Academic & Inst’l Rights, Inc.,
547 U.S. 47, 67 (2006) (quoting United States v. Albertini,
472 U.S. 675, 689 (1985)). Here, that test is met because,
even if § 704(a) is not the most effective mechanism, in at
least some measure it promotes the goals of maintaining the
integrity of the military’s medals and preventing the fraudu-
lent wearing of military medals.
[8] We therefore reject Defendant’s facial First Amend-
ment challenge to 18 U.S.C. § 704(a).
AFFIRMED.