Sunday, November 02, 2014

Case o' The Week: Ninth Sour on Swisher's Sweets - Swisher, First Amendment, and Criminalization of Speech

  He lied to the VA, lied to his community, lied as a government snitch, and was indirectly responsible for one of the most troubling Ninth decisions in the last five years.
  But he still got a raw deal on appeal.
Elven Joe Swisher
United States v. Swisher, 2014 WL 5462290 (9th Cir. Oct. 29, 2014), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Alarcón. Concurrence by Judge Tashima.

Facts: Swisher served in the Marines a year after the Korean War ended. Id. at *1. More than forty years later, he applied for VA benefits, claiming PTSD. Id. He (falsely) claimed he had been wounded in a secret combat mission, and was awarded benefits. Id. At trial for wearing unauthorized military medals in violation of 18 USC § 704(a) (among other offenses), the government introduced a picture of Swisher in a Marine uniform with military medals and awards. Id. at *2. He was convicted, lost the appeal, and filed a 2255 petition. Id. at *3.

Issue(s): Swisher claims “ that his conviction for wearing the medals violated the First Amendment under the reasoning of the Ninth Circuit’s intervening decision in United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). The district court denied the motion.” Id. “The nub of Swisher’s argument is that his conduct in wearing his medals qualifies as expressive conduct, and therefore the application of § 704(a) to him violated his First Amendment rights.” Id. at *6.

Held:We cannot pursue this line of reasoning, because it is foreclosed by [the Ninth Circuit’s 2012 decision in] Perelman . . . Given Perelman’s conclusion that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with an intent to deceive, Swisher’s constitutional challenge to his conviction under § 704(a) fails. Id. (emphasis added).

Of Note: How many times, in the last five years, have you gnashed your teeth and rent your sackcloth at the Ninth's new “abuse of discretion” standard in Hinkson? You’ll recall that in Hinkson, an en banc court of the Ninth salvaged a murder-for-hire conviction when a crazy government snitch had told fantastic lies about his military service – and the presiding trial judge had not let the defense use documents to impeach. See blog here (and read Judge W. Fletcher’s remarkable dissent from order denying rehearing en banc); see also NYT article here.  
   The snitch at the eye of this historical storm? Elven Joe Swisher – habeas petitioner in the present case. See Swisher, 2014 WL 5462290 (9th Cir. Oct. 29, 2014) at *2, n.2.

How to Use: The Ninth got it wrong, in Perelman. See Perelman decision here So argues Judge Tashima, in a compelling concurrence that concedes that Perelman controls, but posits that Perelman was wrongly decided in light of the Supreme Court’s decision in Alvarez, 132 S. Ct. 2537 (2012). 
  It’s a compelling concurrence – Judge Tashima worries that Swisher “was convicted because he told a lie” when he wore those medals – but not a lie used to fraudulently obtain benefits. Id. at *7. This conviction punishes pure speech, he argues in this concurrence, and Perelman is contrary to “the Supreme Court’s teaching in Alvarez.” Id. at *8.  
  Swisher would be an interesting vehicle to revisit en banc review of Perelman (though a habeas is admittedly not the ideal posture). Don’t give up on this issue: the last chapter has not yet been written on this criminalization of speech and the impact on First Amendment protections.
For Further Reading: Last Thursday the Honorable Judge D. Lowell Jensen presided over
The Hon. D. Lowell Jensen
his last calendar before retiring. He may have been the only judge to have presided in all three of the N.D. Cal’s venues, and was equally beloved in each. See article here.  
  At a ceremony on Thursday, he observed that the letter of the law can be difficult, but “men and women of good will can work together to get to a just resolution.” “Just this morning, on my last calendar” he reflected, “we had a case where the sentence would have been unjust; but everyone worked together to get to the right result.” 
   He’s a former chief county prosecutor, a former high-ranking DOJ official, a Reagan appointee to the bench – and he was revered and respected by every member of the NorCal defense bar. 
  Twenty-eight years on our bench were not enough, but we’ll reluctantly let Judge Jensen go for his well-deserved retirement.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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