SAN FRANCISCO (CN) - A divided 9th Circuit refused to rehear its dismissal of a judge's order for a Montana man to stand in front of a courthouse for 50 hours wearing a sandwich board that said, "I am a liar. I am not a Marine," after he lied to his probation officer about having served in the military.
Dissenting Judge Bea called defendant William "Cody" Horvath a "slippery customer, in more ways than one." After Horvath escaped from prison and was captured with a gun in his possession, he concocted a tale about serving in the U.S. Marine Corps and receiving a Purple Heart for a wound in Panama. His probation officer presented the whopper to the judge as a mitigating factor in Horvath's sentencing.
When the truth came out that Horvath "never served a minute in the Marines," he was indicted for lying to a judicial officer. He moved to dismiss the indictment, but later entered a conditional guilty plea, reserving the right to appeal.
U.S. District Judge Donald Molloy, a veteran, rejected Horvath's motion and sentenced him to four months of electronic monitoring and four years probation. He also ordered Horvath to wear the sandwich board. The back was to say, "I have never served my country. I have dishonored veterans of all wars."
Horvath appealed on the ground that he had committed no crime, and the three-judge panel agreed. It found that statements made to a probation officer are exempt from prosecution, because the law requires the officer to present the defendant's statements to a judge.
The dissenting opinion argued that the exemption applies only to statements that a party or attorney makes directly "to a judge or magistrate."
Prosecutors unsuccessfully petitioned for a rehearing before a larger panel of the 9th Circuit.
Judges Pregerson and Graber voted to deny the petition for rehearing, while Judge Rymer voted to grant it. Judges Wardlaw, Gould and Paez concurred with the majority decision, and Judges Bea, Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee and Callahan dissented.
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