SAN FRANCISCO (CN) – A man who accidentally shot himself in the thigh in the 1990s, and then said his injury was a Vietnam War wound to get the Purple Heart and $180,000 in disability benefits, does not have a valid constitutional challenge to the Stolen Valor Act, the 9th Circuit ruled.
David Perelman pleaded guilty to two counts of fraud in Nevada when the government learned that his thigh wound was self-inflicted and not the result of a shrapnel injury allegedly sustained decades earlier in Vietnam during Perelman’s brief tour as a cargo specialist. Prosecutors said Perelman wore the prestigious medal to a national convention of the Military Order of the Purple Heart in Las Vegas.
Perelman appealed his conviction on the basis that that the Stolen Valor Act is unconstitutionally vague.
But a three-judge panel disagreed Monday as the law “makes clear that a person who has not received authorization may not wear a medal.”
At a hearing before the court in July, Las Vegas-based assistant federal public defender Alina Shell said the act is far more expansive than fraud laws.
But the judges disagreed here too.
“Such a broad statute might raise serious constitutional concerns,” Circuit Judge Susan Graber wrote for the court, but “Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive.”
“Because the grieving widow, the proud grandchild, the actor on stage, and the protestor lack an intent to deceive, the wearing of the medals in those circumstances does not fall within the criminal statute,” Graber said.
In his plea, Perelman admitted to the theft of government funds for receiving $180,000 in disability benefits from the Veteran’s Administration.
Shell did not challenge Perelman’s theft of benefits conviction, but argued that the act unconstitutionally “prohibits all conduct, all symbolic speech related to the use of the medals.”
The judges found, however, that Perelman did not present the same issues considered in the 9th Circuit’s previous Stolen Valor ruling, U.S. v. Alvarez, which said the Constitution protects “all speech, including false statements.”
In Alvarez, the 9th Circuit overturned the conviction of a man who lied about having been awarded the Medal of Honor, holding that nondefamatory lies are protected under the right to free speech.
The full court denied an en banc hearing of that case in March 2011, with Chief Judge Alex Kozinski writing, “Saints may always tell the truth, but for mortals living means lying.”
Shell said in July that Perelman’s case “was no different from Alvarez.”
Graber said, however, that the Alvarez decision vacated a section of the Stolen Valor Act that criminalizes pure speech, leaving intact the section that criminalizes a “knowingly fraudulent activity: knowingly wearing a military medal without authorization and with intent to deceive.”