Tuesday, September 27, 2011
Panel Tosses Challenge to Law on Phony Military Medals
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday rejected a Nevada man’s facial challenge to the federal law prohibiting the unauthorized wearing of military decorations.
In an opinion by Judge Susan P. Graber, the panel upheld David M. Perelman’s conviction for violating 18 U.S.C. § 704(a), after construing the statute to require an element of scienter which prevents it from being unconstitutionally overbroad.
The statute criminalizes the act of “knowingly wear[ing]… 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.”
Enhanced penalties apply to violations involving certain medals, including the Purple Heart, which Perelman obtained after he accidentally shot himself in the right thigh and represented this injury to the government as a shrapnel wound from the Vietnam war over 20 years after his brief service.
He also received more than $180,000 in disability benefits from the Veterans Administration on the basis of his receipt of the Purple Heart in 1994.
Perelman was indicted once the government discovered his fraud. He was charged with one count of obtaining disability benefits under false pretenses and one count of violating Sec. 704(a) stemming from his act of wearing his Purple Heart decoration to a national convention of the Military Order of the Purple Heart in Las Vegas.
He moved to dismiss the second count, contending Sec. 704(a) facially violates the First Amendment, but U.S. District Judge Kent J. Dawson of the District of Nevada denied his motion.
Perelman then admitted the factual allegations underlying the charges and entered a guilty plea to both. He waived all his rights to appeal except for the right to appeal the district court’s denial of his motion to dismiss the Sec. 704(a) charge.
Dawson sentenced Perelman to one year and one day imprisonment on the first count, and imprisonment of 10 months on the second, to be served concurrently.
On appeal, Perelman contended that the statute criminalizes the wearing of any military medal, or a colorable imitation of one, by any person other than a valid recipient of the honor, regardless of context or circumstances.
From this premise, Perelman and the American Civil Liberties Union of Nevada as amicus curiae argued the law would penalize actors wearing military medals in a theatrical production, grieving family members who have worn decorations belonging to their fallen loved one, and others who may have worn medals as artistic expression because they like the way the medals look or to make a political statement.
Graber acknowledged that the statute “could be read as broadly as Defendant suggests,” and that “such a broad statute might raise serious constitutional concerns,” but said she disagreed with such an “expansive” construction.
“In our view, Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive,” she said, since the statute requires that a person “knowingly wear” the medal or a colorable imitation.
“By prohibiting the wearing of a colorable imitation and by including a scienter requirement, Congress made clear that deception was its targeted harm,” Graber explained, and so “a person violates the unauthorized wearing portion of 18 U.S.C. § 704(a) only if he or she has an intent to deceive.”
Applying this construction to the circumstances proposed by Perelman and amicus curiae, Graber reasoned, “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.”
Graber distinguished Perelman’s case from the Ninth Circuit’s decision last year in United States v. Alvarez, 617 F.3d 1198, which addressed false statements about the receipt of military decorations or medals since Alvarez involved the criminalization of pure speech and the statute at issue—Sec 704(b)—did not contain a scienter requirement to limit its application.
“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,” she said.
While false speech is protected by the First Amendment, Graber noted, the Alvarez decision stated that fraud and impersonation statutes are constitutional because they contain elements “ ‘that assure[ ] us [that] the law targets legitimately criminal conduct.’ “
The judge wrote:
“We have no trouble concluding that wearing a military medal with an intent to deceive is engaging in legitimately criminal conduct,” and any incidental restriction on First Amendment freedoms by prohibiting such conduct is outweighed by the government’s interest in maintaining the integrity of the military’s medals and preventing the fraudulent wearing of them.
Senior Judge Procter Hug Jr. and Judge Barry G. Silverman joined Graber in her opinion.
The case is United States v. Perelman, 10-10571
Copyright 2011, Metropolitan News Company