United States v. Elven Swisher

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, — U.S. -, 133 S.Ct. 2383 , 185 L.Ed.2d 1069 (2013). While the majority faithfully applies Perelman, Perelman itself ignores the teaching of United States v. Alvarez, — U.S. -, 132 S.Ct. 2537 , 183 L.Ed.2d 574 (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…

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-

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 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,…

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, *517 on First Amendment grounds. United States v. Alvarez, — U.S. -, 132 S.Ct. 2537 , 183 L.Ed.2d 574 (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, — U.S. -, 133 S.Ct. 2383 , 185 L.Ed.2d 1069 (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.

I

Swisher enlisted in the United States Marine Corps on August 4, 1954, a little over a year after the Korean War ended. He spent his first year stationed in…