United States v. Perelman
2011 U.S. App. LEXIS 19615
| 9th Cir. | 2011Background
- Perelman fraudulently obtained a Purple Heart and wore it publicly.
- He was indicted for 18 U.S.C. § 704(a) (unauthorized wearing of medals) and § 641 (false disability benefits).
- Defendant pleaded guilty to both counts but reserved appeal on the district court's denial of his facial First Amendment challenge to § 704(a).
- District court sentenced 12 months and 1 day on § 641, 10 months on § 704(a), with concurrent terms and supervised releases.
- The Ninth Circuit reviewed de novo the First Amendment challenge to § 704(a) and affirmed the district court.
- The government and amicus advocated that § 704(a) is constitutional; defendant challenged it as overbroad on its face.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 704(a) is facially overbroad under the First Amendment | Perelman contends § 704(a) sweeps too broadly across speech-related activities. | Perelman argues the statute covers many protected conduct and is unconstitutional on its face. | Overbreadth rejected; statute limited by intent to deceive |
| Whether § 704(a) survives First Amendment scrutiny under O'Brien and related precedent | Alleged government interest is compelling and the statute is narrowly tailored to prevent deception. | Constitutional impairment of speech is too broad given potential legitimate non-deceptive uses. | Constitutional; statute advances substantial interests with narrowly tailored reach |
| Relation to Alvarez and the proper approach to § 704(a) vs § 704(b) | Alvarez supports striking § 704(a) as unconstitutional on facial overbreadth. | Distinguishes § 704(a) (activity-based) from § 704(b) (speech-based); Alvarez does not govern § 704(a). | Alvarez does not control; § 704(a) survives facial challenge |
Key Cases Cited
- United States v. Williams, 553 U.S. 285 (U.S. 2008) (overbreadth concepts and 'substantial number' of applications)
- United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (distinct from § 704(a); false speech vs. conduct with elements)
- Schacht v. United States, 398 U.S. 58 (Supreme Court 1970) (statutory regulation of wearing uniforms; dicta on facial validity)
- O'Brien, 391 U.S. 367 (Supreme Court 1968) (test for regulating expressive conduct)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (Supreme Court 2006) (incidental restriction on speech; substantial government interest)
- United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975) (intent to deceive as element in colorable imitation statute)
- Coeur d'Alene Tribe of Idaho v. Hammond, 384 F.3d 674 (9th Cir. 2004) (weight given to Supreme Court dicta in lateral authority)
- United States v. Roe, 575 F. Supp. 2d 690 (D. Md. 2008) (§ 701/§ 704 context and intent to deceive framework)