United States v. Michael Hamilton, 2012 U.S. App. LEXIS 23143

Hamilton was convicted on four counts: false statements to the VA for PTSD benefits, theft of VA funds, wearing a military uniform without authorization, and wearing unearned military medals without authorization.
The false statements and theft convictions stemmed from Hamilton’s May 1997 and later PTSD-related benefit claims, based on fabricated Vietnam service and PTSD symptoms.
Hamilton’s PTSD diagnosis and increased disability benefits were obtained in part through Dr. Chorley’s evaluation, which relied on Hamilton’s false statements about combat experiences.
At a 2010 Vietnam Veterans’ Recognition Ceremony, Hamilton wore a colonel’s uniform with numerous unearned medals, after prior on-base incidents of impersonating officers.
The district court imposed concurrent sentences (two 16-month terms for false statements and theft, plus shorter terms for insignia offenses) and restitution of $37,635 to the VA.
On appeal, Hamilton challenged the sufficiency of the evidence for the false statements and theft convictions, and the insignia statutes’ constitutionality.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for § 1001(a)(2).	Hamilton argues evidence insufficient for knowing false statements.	Hamilton contends statements to Dr. Chorley were not material or knowingly false.	Substantial evidence supports knowingly false statements
Sufficiency of evidence for § 641 theft.	Evidence shows intent to obtain benefits through deceit.	Benefit award may be related to factors other than false statements.	Substantial evidence supports theft conviction
Constitutionality of § 702 and § 704(a) as applied and facially.	Insignia statutes regulate conduct without suppressing speech; facial validity and as-applied validity are questioned.	Statutes are overly broad under First Amendment and should be struck or narrowly construed.	Limiting construction with intent to deceive sustains constitutionality; statutes survive facial and applied challenges under Johnson/Alvarez framework
Appropriate First Amendment scrutiny for insignia statutes.	O’Brien relatively lenient scrutiny should apply.	Johnson most exacting scrutiny should apply because of expressive conduct.	Assumes Johnson standard applies and upholds statutes under the most exacting scrutiny

United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011) (expressive-conduct vs. pure-speech distinctions; Alvarez's implications for §704(b) not controlling here)
Perelman, 658 F.3d 1134 (9th Cir. 2011) (limiting construction requiring intent to deceive for §704 and §702; later amended opinion)
United States v. O’Brien, 391 U.S. 367 (U.S. 1968) (establishes conduct-regulation framework (O’Brien test) for expressive conduct)
Texas v. Johnson, 491 U.S. 397 (U.S. 1989) (most exacting scrutiny when regulation suppresses expressive conduct; not always applicable)
Boos v. Barry, 485 U.S. 312 (U.S. 1988) (defines strict scrutiny standard for compelling state interests)
United States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998) (materiality and evidentiary standards for § 1001)
United States v. Williams, 553 U.S. 285 (U.S. 2008) (statutory interpretation and scope in context of 18 U.S.C. § 1001)
United States v. Littleton, 76 F.3d 614 (4th Cir. 1996) (materiality standard for falsity in § 1001 contexts)
Kungys v. United States, 485 U.S. 759 (U.S. 1988) (materiality standard in false-statement prosecutions)