(CN) - The Supreme Court's rejection of a law that made it a crime to lie about military service and accolades does not help a Marine Corps veteran who was photographed wearing unearned medals, the 9th Circuit ruled Wednesday.
A federal jury in Idaho found Elven Swisher guilty in 2007 for making false statements to the Veterans Administration, forging discharge documents to obtain benefits and theft of government funds. The jurors also convicted Swisher, who had served three years in the Marines beginning in 1954, for "wearing unauthorized military medals."
During the one-week trial, prosecutors said that Swisher had in 2001 secured $2,366 a month in federal benefits for post-traumatic stress disorder he claimed to have developed after an off-the-books mission in 1957 that never actually happened.
An "unpublished narrative" included with Swisher's application for benefits told of his supposed participation in a secret combat operation during which "Swisher and approximately 130 other Marines were flown by helicopter to an unknown location in China or North Korea," the 9th Circuit explained.
Swisher allegedly claimed that he'd been seriously injured in a firefight while on the mission, and that he'd been awarded the Purple Heart and other medals but told to keep this a secret.
Marine Corps officials testified at the trial that there was no record of Swisher having received any injuries or medals during his service. Prosecutors also presented a photograph that showed "Swisher wearing the Silver Star, the Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze V, and the UMC Expeditionary Medal."
After the jury convicted on all counts, Swisher was sentenced to one year behind bars and three years of supervised released.
Swisher later argued in a federal habeas petition that the 9th Circuit's 2010 ruling against the so-called Stolen Valor Act required reversal of his conviction for wearing unauthorized military medals.
The federal appeals court had found in U.S. v. Alvarez that the 2005 Stolen Valor Act, which toughened the prohibitions against lying about military service and medals already on the books as Sections 704(a) and (b) of Title 18, violated the First Amendment.
The Supreme Court agreed in 2012 and struck the law down, finding that "permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable."
Swisher presented similar arguments, but U.S. District Judge B. Lynn Winmill in Boise denied his petition. A unanimous appellate panel agreed on Wednesday, though one judge argued that the ruling is based on a bad but unavoidable law.
The panel based its decision not on Alvarez but on the 9th Circuit's 2012 ruling United States v. Perelman, which the high court declined to review. In that case, the appellate court "interpreted § 704(a) as criminalizing 'the unauthorized wearing of medals only when the wearer intends to deceive.'"
The government's "extensive evidence that Swisher was not entitled to wear those medals, as no military record documented the awards or Swisher's claimed combat injuries," proved at trial that Swisher had intended to deceive by wearing the unauthorized medals, the three-judge panel found.
"Taken together, this evidence demonstrates that Swisher wore the medals for the purpose of claiming that he was 'worthy of commendation,' when in fact he was not," Judge Sandra Ikuta wrote for the panel. "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."
Judge A. Wallace Tashima wrote separate to note that he upheld Swisher's conviction only because he had no other choice under Perelman, which he considers "contrary to the Supreme Court's teaching in Alvarez."
"Swisher was convicted because he told a lie," he wrote. "I do not believe that § 704(a) should be read to punish such pure speech."