No. 11116
In the Supreme Court of the United States
______
OTIS GARFIELD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
______
On Writ of Certiorari to the United States Court of Appeals for the Ames Circuit
______
BRIEF FOR RESPONDENT
______
Counsel for Respondent: ORAL ARGUMENT: CAROLINE J. ANDERSON MATTHEW R. GREENFIELD NOVEMBER 17, 2011 STEPHEN M. PEZZI 7:30 P.M. MITCHELL REICH AMES COURTROOM STEPHANIE SIMON HARVARD LAW SCHOOL NOAH M. WEISS
The Belva Ann Lockwood Memorial Team
QUESTIONS PRESENTED
I. Does Petitioner’s knowingly false claim that he received the Navy Cross
merit constitutional protection?
II. Does a forfeited allocution error merit resentencing, despite Petitioner’s
inability to show that the error affected the outcome or fairness of the
proceeding?
i TABLE OF CONTENTS
QUESTIONS PRESENTED ...... i
TABLE OF CONTENTS ...... ii
TABLE OF AUTHORITIES ...... iv
OPINIONS BELOW ...... 1
STATEMENT OF JURISDICTION ...... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS ...... 3
STATEMENT OF THE CASE ...... 4
SUMMARY OF THE ARGUMENT ...... 9
ARGUMENT ...... 12
I. The First Amendment does not protect Petitioner’s knowing lie about receiving the Navy Cross...... 12
A. Knowing lies about receiving military medals are categorically unprotected by the First Amendment...... 12
1. This Court has recognized a long tradition of proscribing falsehoods, subject to two considerations...... 14
2. The narrow category of lies about receiving military medals belongs to this tradition of proscription...... 17
a. Protecting false statements about receiving military medals is not necessary to give breathing room to speech that matters...... 18
b. The government has a legitimate interest in preserving the integrity of the medals system...... 20
3. Finding Petitioner’s lies categorically unprotected will not lead to an unacceptable slippery slope or draw impermissible contentbased distinctions...... 22
ii B. Alternatively, Petitioner’s lie was integral to the criminal act of impersonation...... 25
C. The Act is narrowly tailored to advance the compelling state interest in protecting the military medals system...... 28
1. The state has a compelling interest in protecting the integrity of the system of military medals...... 28
2. A ban on knowingly false statements regarding military medals is narrowly tailored to advance the state interest...... 29
II. Notwithstanding the district court’s failure to personally address Petitioner, the sentence should be affirmed...... 33
A. This Court should review Petitioner’s claim under Rule 52(b)’s plainerror analysis because he failed to object in the district court...... 34
B. Plainerror analysis supports Petitioner’s sentence because the error was innocuous...... 39
1. The error did not affect any substantial right...... 40
a. Petitioner must show a reasonable probability of prejudice to prevail...... 41
b. Presumptive or not, prejudice did not result from the error in this case...... 44
2. The error did not seriously affect the fairness, integrity or public reputation of the proceedings below...... 48
CONCLUSION ...... 51
APPENDIX ...... 52
iii TABLE OF AUTHORITIES
Cases
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ...... 38
Ashcroft v. ACLU, 542 U.S. 656 (2004) ...... 30
Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) ...... 20
Bennett v. Hendrix, 325 F. App’x 727 (11th Cir. 2009) ...... 24
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ...... 13, 28
Brown v. Hartlage, 456 U.S. 45 (1982) ...... 15, 17, 29
Buckley v. Valeo, 424 U.S. 1 (1976) ...... 31
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...... 12, 19
Chicago v. Tribune Co., 139 N.E. 86 (Ill. 1923) ...... 23
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ...... 15
Garrison v. Louisiana, 379 U.S. 64 (1964) ...... 19, 23
Gates v. City of Dallas, 729 F.2d 343 (5th Cir. 1984) ...... 24
iv Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ...... passim
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ...... 9, 25
Green v. United States, 365 U.S. 301 (1961) ...... 33, 36, 37, 38
Hill v. United States, 368 U.S. 424 (1962) ...... passim
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ...... passim
Johnson v. United States, 520 U.S. 461 (1997) ...... passim
Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) ...... 31
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ...... 24
Neder v. United States, 527 U.S. 1 (1999) ...... 44
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...... passim
New York v. Ferber, 458 U.S. 747 (1982) ...... 16, 17, 22
Nguyen v. United States, 539 U.S. 69 (2003) ...... 38
Pestrak v. Ohio Elections Comm’n, 926 F.2d 573 (6th Cir. 1991) ...... 24
Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ...... 16, 17
v Puckett v. United States, 129 S. Ct. 1423 (2009) ...... passim
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ...... 22, 24, 25, 26
Reno v. ACLU, 521 U.S. 844 (1997) ...... 30
Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) ...... 24
Rostker v. Goldberg, 453 U.S. 57 (1981) ...... 21
Rumsfeld v. Forum for Academic & Institutional Rights (FAIR), Inc., 547 U.S. 47 (2006) ...... 22, 26
Tanner v. United States, 483 U.S. 107 (1987) ...... 43
Texas v. Johnson, 491 U.S. 397 (1989) ...... 28, 29
Time, Inc. v. Hill, 385 U.S. 374 (1967) ...... 15, 16, 17, 18
United States v. Adams, 252 F.3d 276 (3d Cir. 2001) ...... 35, 37
United States v. AguileraDeLeon, No. 1010788, 2011 WL 3444192 (5th Cir. Aug. 8, 2011) ...... 50
United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) ...... 21, 26, 27, 28
United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011) ...... 23
United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980) ...... 27
vi United States v. Cotton, 535 U.S. 625 (2002) ...... 35, 40, 48
United States v. Cronic, 466 U.S. 648 (1984) ...... 43
United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) ...... 43
United States v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994) ...... 45
United States v. Dominguez Benitez, 542 U.S. 74 (2004) ...... passim
United States v. Epstein, 426 F.3d 431 (1st Cir. 2005) ...... 43
United States v. Frady, 456 U.S. 152 (1982) ...... 49
United States v. Gayle, 967 F.2d 483 (11th Cir. 1992) ...... 26
United States v. Gilbert, 143 F.3d 397 (8th Cir. 1998) ...... 26, 27
United States v. Lepowitch, 318 U.S. 702 (1943) ...... 26
United States v. Lewis, 10 F.3d 1086 (4th Cir. 1993) ...... 41
United States v. Magwood, 445 F.3d 826 (5th Cir. 2006) ...... 46
United States v. Marcus, 130 S. Ct. 2159 (2010) ...... 34, 35, 38, 41
United States v. Muhammad, 478 F.3d 247 (4th Cir. 2007) ...... 35
vii United States v. Myers, 150 F.3d 459 (5th Cir. 1998) ...... 37
United States v. Noel, 581 F.3d 490 (7th Cir. 2009) ...... 44, 45, 49
United States v. Norman, 427 F.3d 537 (8th Cir. 2005) ...... 43
United States v. O’Brien, 391 U.S. 367 (1968) ...... 27
United States v. Olano, 507 U.S. 725 (1993) ...... passim
United States v. Panice, 598 F.3d 426 (7th Cir. 2010) ...... 35
United States v. Perelman, No. 1010571, 2011 WL 4436269 (9th Cir. Sept. 26, 2011) ...... 27
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ...... 30
United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) ...... 35
United States v. Rausch, 638 F.3d 1296 (10th Cir. 2011) ...... 35, 41
United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) ...... 35, 37
United States v. Robbins, 759 F. Supp. 2d 815 (W.D. Va. 2011) ...... 18, 20, 21, 30
United States v. SilvaNava, 243 F. App’x 589 (11th Cir. 2007) ...... 26, 27
United States v. Stevens, 130 S. Ct. 1577 (2010) ...... 9, 12, 13, 17
viii United States v. Vonn, 535 U.S. 55 (2002) ...... 34, 38, 41
United States v. Young, 470 U.S. 1 (1985) ...... 34, 39, 49
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ...... 16, 17
Van Hook v. United States, 365 U.S. 609 (1961) ...... 36, 37, 38
Whitney v. California, 274 U.S. 357 (1927) ...... 19
Wisconsin v. Yoder, 406 U.S. 205 (1972) ...... 28
Statutes
10 U.S.C. § 6242 ...... 20
18 U.S.C. § 3231 ...... 2
18 U.S.C. § 911 ...... 26
28 U.S.C. § 1254(1) ...... 2
28 U.S.C. § 1291 ...... 2
Stolen Valor Act of 2005, Pub. L. 109437, 120 Stat. 3266 (2006) (codified at 18 U.S.C. § 704) ...... 3, 21, 26
Other Authorities
Alex Kozinski & Stuart Banner, The AntiHistory and PreHistory of Commercial Speech, 71 Tex. L. Rev. 747, 769 (1993) ...... 16
Letter from T.F. Hall, Under Sec’y of Def., to Ike Skelton, House Armed Servs. Comm. Chairman (Apr. 2, 2009), available at www.reportstolenvalor.org/pdf/DoDDBReport04022009.pdf ...... 30
ix Robin L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DePaul L. Rev. 359, 369 (2006) ...... 16
Rules
Fed. R. Crim. P. 32 ...... passim
Fed. R. Crim. P. 52 ...... passim
Regulations
Army Regulation 600822 (Sept. 15, 2011) ...... 20
Constitutional Provisions
U.S. Const. amend. I ...... passim
Legislative Materials
151 Cong. Rec. S1268401 (daily ed. Nov. 10, 2005) ...... 27
152 Cong. Rec. H881901 (daily ed. Dec. 6, 2006)...... 20, 21
x OPINIONS BELOW
The opinion of the Court of Appeals is unpublished and is reproduced at J.A.
39. The District Court’s memorandum of decision and order denying the motion to dismiss defendant’s indictment is unpublished and is reproduced at J.A. 1416. The
District Court’s entry of criminal judgment is unpublished and is reproduced at J.A.
32.
1 STATEMENT OF JURISDICTION
The United States District Court for the District of Ames entered judgment on May 23, 2011, its jurisdiction resting on 18 U.S.C. § 3231. Petitioner gave timely notice of appeal on May 24, 2011, and the United States Court of Appeals for the
Ames Circuit entered judgment affirming the District Court on July 18, 2011.
Appellate jurisdiction was proper pursuant to 28 U.S.C. § 1291. A petition for certiorari was timely filed and was granted on September 15, 2011. Jurisdiction in this Court rests on 28 U.S.C. § 1254(1).
2 CONSTITUTIONAL AND STATUTORY PROVISIONS
The relevant portions of the First Amendment to the United States
Constitution; the Stolen Valor Act of 2005, Pub. L. 109437, 120 Stat. 3266 (2006)
(codified at 18 U.S.C. § 704); and Federal Rules of Criminal Procedure 32 and 52 are reproduced in the Appendix.
3 STATEMENT OF THE CASE
I. Statutory History
The Navy Cross is one of the highest decorations bestowed upon members of the Navy, second only to the Congressional Medal of Honor. J.A. 1. Awarded for
“extraordinary heroism in action,” the Navy Cross honors those who have placed themselves in “great danger,” thereby “distingush[ing] the[mselves] from others of equal rank or responsibility.” Id.
In 2006, Congress enacted the Stolen Valor Act “to permit law enforcement officers to protect the reputation and meaning of military decorations and medals” like the Navy Cross. Pub. L. No. 109437, § 2, 120 Stat. 3266, 3266 (2006). The Act makes it a crime for any person to “falsely represent[] himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b). Under the Act, falsely claiming to have been awarded a particularly important medal, such as the
Navy Cross, is punishable by fine, imprisonment for up to one year, or both. Id. §§
704(c), (d).
II. The Criminal Conduct
In January 2011, Otis Garfield (“Petitioner”) created a profile on the dating website AmesDate.com. J.A. 3. There, Petitioner described himself as, among other things, a world traveler, marathon runner, and descendant of President James
4 Garfield. J.A. 20. He also claimed to have served as a Navy SEAL in the Persian
Gulf War. Id. So heroic was his service, in fact, that he was awarded the Navy
Cross. Id. As he now admits, all of these statements were false. J.A. 13.
Nonetheless, Petitioner posted that his experience fighting in the Gulf had shown him that the United States should not be embroiled in “unnecessary wars.” J.A. 20.
While his AmesDate.com profile was active, Petitioner corresponded with
“approximately sixteen women,” some of whom he dated. J.A. 13. Among them was
Laura Morrison. J.A. 1. When the two corresponded via email, Morrison believed that Petitioner was, in fact, “a bona fide war hero.” Id. But upon meeting him in person, she became suspicious of his claimed military service. Id. She looked for
Petitioner in public databases and could find no record of his having received the
Navy Cross. J.A. 12. Morrison brought this information to the FBI. Id.
The FBI investigated Morrison’s tip and discovered that Petitioner had neither received the Navy Cross nor served as a Navy SEAL; indeed, he had never served in the military in any capacity whatsoever. J.A. 4, 13. In reality, Petitioner had a long history of deception, including impersonating a police officer and lying to obtain a role on a reality TV show. J.A. 4, 12.
Petitioner was indicted on one count of “falsely represent[ing] that he had been awarded the Navy Cross when, in truth as he knew, he had not won the Navy
Cross” in violation of the Stolen Valor Act, 18 U.S.C. § 704(b), (d). J.A. 10.
Petitioner did not dispute that he had lied about having earned the Navy Cross.
J.A. 13. He did, however, move to dismiss the indictment, arguing that the Act was
5 unconstitutional as applied to him. J.A. 17. The district court denied the motion.
Petitioner then entered a conditional guilty plea, reserving the right to appeal his constitutional claim. J.A. 3.
III. The Sentencing
At the outset of Petitioner’s sentencing hearing, the district court asked for statements both “from the Government” and “from the defense.” J.A. 24. The judge then explained to defense counsel, “your client, Mr. Garfield, has the right to speak; that is, to say whatever it is he wants to say to help [the court] in determining what the sentence should be.” Id.
Defense counsel implored the court to “impose no term of imprisonment,” arguing that Petitioner’s crime was victimless and that he did not even believe he had committed a crime. J.A. 26, 28. She then read aloud a letter Petitioner had written to the court. J.A. 2526. In the letter, Petitioner admitted, “I was not awarded a Navy Cross. I never even served in the military. When I said these things about myself, I knew they were not true.” J.A. 26. He did not apologize for his actions. Instead he made his lack of remorse clear, declaring: “I am not sorry for what I did.” Id. He ended by asking for “the court’s understanding — and its mercy.” Id. Similarly, Petitioner told the probation officer who prepared the presentence investigation report that “he felt no remorse for his actions” and “would do it all again.” J.A. 25.
6 After considering the arguments of the Government, defense counsel, and
Petitioner himself, the district judge emphasized the most important factors to her sentencing determination: “the seriousness of the offense,” the “need for deterrence,” and Petitioner’s “history and characteristics.” J.A. 31. The court sentenced Petitioner to three months imprisonment, a $500 fine, and six months supervised release. Id.
At the conclusion of the hearing, the court asked both parties whether they had “anything else . . . to take up”; the Government and defense counsel each responded, “No, your honor.” Id. No objections were raised.
IV. The Appeal
Petitioner made a timely appeal to the United States Court of Appeals for the
Ames Circuit. J.A. 5. He claimed: (1) that his conviction should be reversed because the Stolen Valor Act as applied to him violates the First Amendment; and, in the alternative, (2) that he was entitled to resentencing because the district court denied him “an opportunity to allocute.” J.A. 3.
The Ames Circuit rejected both arguments. J.A. 3. The court held that
Petitioner’s “claim to have received the Navy Cross is a false statement of fact not protected by the First Amendment,” J.A. 6, agreeing with the district court that protecting such lies “is not necessary to prevent a chilling effect on legitimate speech,” J.A. 16. On the sentencing issue, the court applied plainerror review because Petitioner failed to object at sentencing. J.A. 8. The Court of Appeals
7 determined that the district judge had erred by failing to personally address
Petitioner, but it held “that Garfield [was] not entitled to resentencing because the error did not seriously affect the fairness of the judicial proceedings.” J.A. 89.
This Court granted certiorari. J.A. 2.
8 SUMMARY OF THE ARGUMENT
I. Petitioner’s lie about having received the Navy Cross merits no constitutional protection. It belongs to a narrow category of speech that should be newly recognized as outside the First Amendment: knowing lies about having received military medals. Proscribing such lies will not chill protected expression, New York
Times Co. v. Sullivan, 376 U.S. 254, 27172 (1964), and serves a “legitimate state interest” in preserving the integrity of the system of military medals, see Gertz v.
Robert Welch, Inc., 418 U.S. 323, 34142 (1974). A prohibition on such statements belongs to a long tradition of proscription — the same tradition underlying defamation, false light, and knowingly false statements inflicting emotional distress
— under which lies themselves have “no constitutional value,” and may be proscribed depending on whether doing so leaves adequate breathing space for speech that matters and serves a legitimate government interest. Id. at 34042.
This tradition amply justifies categorically excluding this limited class of lies from the First Amendment. See United States v. Stevens, 130 S. Ct. 1577, 1585 (2010).
Alternatively, Petitioner’s lie falls within an existing exception to the First
Amendment: his speech was integral to the criminal act of impersonation. See
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). Impersonation statutes are constitutional and may be violated by words alone. Congress may prohibit impersonating military medal winners and in Petitioner’s case, the Act does exactly that.
9 Even if subjected to strict scrutiny, however, the Act as applied to Petitioner is valid. The government’s interest in preserving the integrity of its system of military medals is compelling. Unchecked lies about receiving such honors undermine the system’s ability to distinguish servicemembers and set standards of excellence, imperiling the system as a whole. Alternative means of preventing this harm are not comparably practical or effective, and thus the Act as applied to
Petitioner prohibits no more speech than necessary to serve the government’s interest. His conviction should be upheld.
II. This Court has consistently held that plainerror review under Rule 52(b) of the Federal Rules of Criminal Procedure applies to all forfeited errors — those errors to which a defendant did not object in the trial court. See, e.g., Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). Although the district court failed to personally invite Petitioner to allocute in violation of Federal Rule of Criminal
Procedure 32(i)(4)(A)(ii), Petitioner did not object. As a result, this Court should review the error under Rule 52(b)’s plainerror framework. In plainerror review, an appellate court has discretion to remand for resentencing only if the defendant shows, among other things, that the error affected both his sentence and the underlying fairness of the proceeding. Petitioner cannot make either showing.
First, Petitioner does not show that the error affected his sentence. Had the trial judge personally addressed Petitioner, the sentence would not have changed.
The district court announced Petitioner’s “right to speak,” even explaining for
10 Petitioner’s benefit that he might “say whatever it is he wants to say to help [the court] in determining what the sentence should be.” J.A. 24. Then, defense counsel read aloud a letter Petitioner had written in which he pled for mercy, tried to justify his crime, and expressly disavowed any apology. J.A. 2526. For these reasons, there is no reasonable probability that Petitioner left arguments, facts, or pleas for mercy on the table that might have made a difference at sentencing.
Second, Petitioner has not shown that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Given
Petitioner’s letter and the judge’s explanation of Petitioner’s right to allocute, the lack of a personal invitation does not represent the sort of “miscarriage of justice,”
Johnson v. United States, 520 U.S. 461, 470 (1997), that warrants resentencing.
Remanding to the district court for a nearly identical proceeding, with only a slightly more explicit invitation to Petitioner to speak, would do nothing to improve the integrity of the proceedings. The sentence should be affirmed.
11 ARGUMENT
I. THE FIRST AMENDMENT DOES NOT PROTECT PETITIONER’S KNOWING LIE ABOUT RECEIVING THE NAVY CROSS.
The Stolen Valor Act is constitutional as applied to Petitioner. Lies about receiving military medals should be recognized as a new category of speech excluded from the First Amendment. This proposed category is far narrower than the one
Petitioner ascribes to the Government, see Pet’r’s Br. 1321, and belongs to a long tradition of proscribing certain valueless falsehoods, see United States v. Stevens,
130 S. Ct. 1577, 1585 (2010). Alternatively, Petitioner’s lie belongs to a category already recognized as outside the First Amendment: speech integral to the crime of impersonation. Even if lies regarding military medals are subject to First
Amendment scrutiny, Petitioner’s conviction must be upheld because the Act is narrowly tailored to advance the compelling state interest in protecting the system of military medals.
A. Knowing lies about receiving military medals are categorically unprotected by the First Amendment.
Certain classes of speech do not merit First Amendment protection.
Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). New categories cannot be added to the list of unprotected speech on a “freewheeling” basis. Stevens, 130 S.
Ct. at 1586. However, a “welldefined and narrowly limited” category may be added to the list of exemptions provided it belongs to a “tradition of proscription.” Brown
12 v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 273334 (2011) (citing Stevens, 130 S. Ct. at 1585).
Consistent with this framework, knowingly misrepresenting oneself as having received a military medal should be recognized as speech categorically exempt from the First Amendment. This narrowly defined category belongs to the tradition of proscribing certain valueless falsehoods — the same tradition that underlies categories already recognized as unprotected, including defamation, fraud, false light, false commercial speech, and knowingly false statements inflicting emotional distress. This tradition starts from the premise that “there is no constitutional value in false statements of fact,” but recognizes that some falsehoods may merit constitutional protection depending on whether (1) such protection is necessary to provide breathing space for speech that matters, and (2) their proscription serves a legitimate state interest. Gertz v. Robert Welch, Inc., 418
U.S. 323, 340 (1974).
Because knowing lies about receiving military medals are intentional and avoidable, prohibiting them does nothing to chill — and therefore leaves ample breathing room for — constitutionally protected speech. And because such lies enfeeble the military’s system of medals, undermine morale, and cast doubt upon the achievements of the truly valorous, the government has a legitimate interest in prohibiting them. Accordingly, this circumscribed set of lies is categorically outside the protection of the First Amendment.
13 1. This Court has recognized a long tradition of proscribing falsehoods, subject to two considerations.
The tradition of proscribing certain valueless falsehoods dates back to the seminal case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). There, the
Court held that the First Amendment does not protect knowing or reckless defamatory statements about public figures. Id. at 27981. Unintentional falsehoods, by contrast, are “inevitable,” so protecting such statements is necessary to provide “breathing space” for the press to criticize official conduct without fear of punishment and to prevent chilling of protected expression. Id. at 27172. The
Court considered the countervailing government interest in protecting public officials from “[i]njury to official reputation” but held that it provided no “warrant for repressing speech.” Id. at 272.
Gertz adopted this approach in the context of private defamation suits. From
Sullivan, the Court extrapolated the general principle that while “[t]here is no constitutional value in false statements of fact,” 418 U.S. at 340, “[t]he First
Amendment requires that we protect some falsehood in order to protect speech that matters,” id. at 341. Breathing space for protected expression, however, is “not the only societal value at issue,” and the countervailing “legitimate state interest” must also be considered. Id. Finding the government interest in protecting against reputational harm stronger in this context than in Sullivan, Gertz held that both knowing and unintentional falsehoods about private figures were categorically unprotected. See id. at 347. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. then applied “the approach approved in Gertz,” evaluating both the “state interest”
14 in preventing private defamatory statements on issues not of public concern and the
“First Amendment interest in protecting this type of expression.” 472 U.S. 749, 757
(1985).
Newly proscribable categories of speech have sprung from this same tradition. Hustler Magazine, Inc. v. Falwell stripped knowingly false statements about public figures of constitutional protection in the context of state intentional infliction of emotional distress (IIED) suits, finding Sullivan’s intent requirement necessary to “give adequate ‘breathing space’ to the freedoms protected by the First
Amendment.” 485 U.S. 46, 56 (1988). A contrary rule sanctioning liability for unintentional falsehoods, the Court held, would chill “debate about public figures,” id. at 53, while advancing only a minimal state interest in protecting listeners from
“adverse emotional impact,” id. at 55. Time, Inc. v. Hill permitted states to proscribe knowing lies that cast a “false light” on the ground that sanctions against calculated falsehoods, unlike “sanctions against either innocent or negligent misstatement,” present no chilling concerns. 385 U.S. 374, 389 (1967); id. at 391,
40810 (dismissing “state interest” in proscribing nonlibelous mistakes of fact).
Brown v. Hartlage, by contrast, struck down a prohibition on political candidates’ lies because the law “ha[d] not afforded the requisite breathing space,” and did little to serve “the state interest in protecting the political process from distortions.” 456
U.S. 45, 61 (1982) (internal quotation omitted); see id. (suggesting a different outcome had the defendant “made the disputed statement” with “knowledge of its falsity”). Other cases have employed this test as well. See, e.g., Va. State Bd. of
15 Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 77172 (1976)
(proscribing false commercial speech); Pickering v. Bd. of Educ., 391 U.S. 563, 574
75 (1968) (protecting unintentional falsehoods by public employees).
There is only one way to reconcile this line of cases: they are all grounded in the same tradition. In each case, when the Court encountered some category of falsehoods, it started from the premise that false statements themselves are unworthy of First Amendment protection. It then determined if those falsehoods merited protection anyway, considering whether (1) such protection is necessary to provide “breathing space” for valued speech and (2) their proscription would serve a legitimate government interest.
Petitioner, by contrast, argues that each category of proscribed speech must have been “subject to government regulation, from 1791 to present” to belong to a tradition of proscription. Pet’r’s Br. 18. But the Court’s own precedent would fail this test: IIED was not a lawful basis for tort liability until the 1940’s, see Robin L.
Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible
Loss, 55 DePaul L. Rev. 359, 369 (2006); the tort of false light is an invention of the twentieth century, see Time, 385 U.S. at 38081; and protections for advertising were “murky” before 1942, Alex Kozinski & Stuart Banner, The AntiHistory and
PreHistory of Commercial Speech, 71 Tex. L. Rev. 747, 769 (1993). Yet each brand of falsehood has unquestionably been excluded from the First Amendment. Just like in New York v. Ferber, 458 U.S. 747 (1982), where the longstanding proscription of speech integral to criminal conduct provided the requisite tradition to ground the
16 narrower, newlyrecognized category of child pornography, see Stevens, 130 S. Ct. at
1586 (citing Ferber, 458 U.S. at 76162), all of these categories of proscribable speech are grounded in a broader historical tradition.
Petitioner also disputes the scope of this tradition. He argues that the tradition of proscribing falsehoods is limited to defamation and “analogous” contexts in which an individual’s reputation is harmed. Pet’r’s Br. 18 & n.2, 20. But the cases that Petitioner cites for this proposition say just the opposite: Falwell described IIED as a tort by which “the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication,” 485 U.S. at 52 (emphasis added); Time distinguished false light from libel on the ground that it did not advance the “state interest in the protection of the individual against damage to his reputation,” 385 U.S. at 391; and
Pickering concerned the government’s right to fire employees for false statements about matters of public concern, not for harm to anyone’s reputation, 391 U.S. at
57475. Petitioner also ignores Virginia State Board of Pharmacy and Hartlage, both of which lacked even an attenuated relationship to defamation but were examined under the SullivanGertz tradition. The Court’s tradition cannot be
“about defamation” alone. Pet’r’s Br. 18.
2. The narrow category of lies about receiving military medals belongs to this tradition of proscription.
Because knowing lies about receiving military medals are both intentional and rare, proscribing them presents no chilling concerns. Furthermore, the
17 government has a legitimate interest in proscribing such lies to protect the integrity of the system of military honors. These lies therefore fall into the tradition underlying Sullivan, Gertz, Falwell, and Time.
a. Protecting false statements about receiving military medals is not necessary to give breathing room to speech that matters.
When falsehoods are protected, the typical justification is that some erroneous statements are “inevitable in free debate,” and punishing such statements “runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.” Gertz, 418 U.S. at 340.
While unintentional falsities may be inescapable in daily discourse, intentional falsehoods are by definition the product of deliberate calculation. Therefore, criminalizing knowingly false statements about receiving military medals poses no risk of chilling protected expression, for individuals will not selfcensor out of fear of mistake. Cf. Sullivan, 376 U.S. at 279 (guarding against selfcensorship by the press). This is particularly true where, as here, the claim concerns an autobiographical fact of which the speaker has intimate knowledge and which is
“easily verifiable using objective means.” United States v. Robbins, 759 F. Supp. 2d
815, 820 (W.D. Va. 2011); see id. (upholding Stolen Valor Act against facial challenge). Moreover, because knowing lies about receiving military medals “do not advocate any particular political or cultural viewpoint or question prevailing dogma or beliefs . . . the justification that some false speech strengthens and clarifies the truth is inapplicable.” Id.
18 Petitioner’s case illustrates this well. As Petitioner readily admits, he knew he was lying when he claimed to have received the Navy Cross. J.A. 26. His speech was not spontaneous, casual, or made in haste with the risk of an innocent mistake; rather, it appeared on an online profile devised with obvious care and maintained for months. J.A. 1213. Nor was Petitioner’s false claim regarding the Navy Cross necessary to his antiwar statements: he could have conveyed precisely the same criticisms of the military without masquerading as a medal winner.
In fact, protecting lies about receiving military medals would actually undermine rather than provide breathing room to speech that matters. Intentional lies “interfere with the truthseeking function of the marketplace of ideas,” Falwell,
485 U.S. at 52, crowding out legitimate truths and replacing them with falsities, see
Garrison v. Louisiana, 379 U.S. 64, 75 (1964). Such deliberate lies do not contribute to robust debate on public issues, see Gertz, 418 U.S. at 340, nor the ideal of rich democratic deliberation, see Whitney v. California, 274 U.S. 357, 375 (1927)
(Brandeis, J., concurring). Knowing lies about receiving military medals contain no independent ideas; they serve only to impede public debate and the search for truth.
Petitioner suggests that he told his lie in service of speech that matters, claiming that his lie “got people to listen to [him].” J.A. 26. But this cannot be constitutionally relevant. Any form of unprotected speech may give the speaker a boost in conveying a protected message. A charge that government officials are racketeers and fascists may be amplified by directing fighting words at a local police officer. Cf. Chaplinsky, 315 U.S. at 56970. A newspaper advertisement critical of a
19 segregationist official may be made more persuasive if peppered with maliciously libelous falsehoods. Cf. Sullivan, 376 U.S. at 256. A film may convey the degradation of teenage drug addiction more heartwrenchingly with graphic depictions of a child selling sex for drugs. Cf. Ashcroft v. Free Speech Coal., 535
U.S. 234, 24748 (2002). But the First Amendment categorically does not protect this speech, even if it draws attention to other messages or bolsters the speaker’s credibility. Petitioner’s lie was not necessary to convey his message, and thus there is no warrant for protecting it.
b. The government has a legitimate interest in preserving the integrity of the medals system.
The government’s interest in preventing the lies criminalized by the Act flows from the overriding state interest in protecting the system of medals that Congress has established for the military. See, e.g., 10 U.S.C. § 6242. This system enhances the military’s sense of honor and esprit de corps, “supports military discipline and effectiveness,” Robbins, 759 F. Supp. 2d at 821, and encourages individuals to join and serve, see 152 Cong. Rec. H881901, H8821 (daily ed. Dec. 6, 2006) (statement of Rep. Davis) (describing medals as “inspir[ing] future generations to military service”).
Indeed, the purpose of the medals program is “to foster mission accomplishment by recognizing excellence of both military and civilian members of the force and motivating them to high levels of performance and service.” Army
Regulation 600822 § 11 (Sept. 15, 2011). The medals system enables the military
20 to frame its standards for distinction so that troops may know what “best behavior” to emulate in combat. Preserving this system thus constitutes “a legitimate legislative concern under the Constitution.” Robbins, 759 F. Supp. 2d at 821; see also United States v. Alvarez, 617 F.3d 1198, 1216 (9th Cir. 2010), cert. granted, No.
11210, 2011 WL 3626544 (Oct. 17, 2011).
False statements about having received military honors cause serious and irreparable harm by “damag[ing] the reputation and meaning of such decorations and medals.” Stolen Valor Act of 2005, Pub. L. No. 109437, § 2(1), 120 Stat. 3266
(2006). The validity of the system depends upon the belief that medals recognize only exceedingly rare achievement. Unbridled lies undermine that belief and, thus, the integrity of the medals system itself. See Alvarez, 617 F.3d at 1234 (Bybee, J., dissenting) (“[F]alse representations . . . dilute the select group of those who have earned the nation’s gratitude for their valor.”). If the public cannot know who received medals legitimately, their signaling function will be irreparably diminished. An unreliable array of medal claimants will disorient uniformed servicemembers seeking military role models. The truly valorous will be met with greater skepticism, while imposters, preying on the trusting public, will engage in further misconduct. See 152 Cong. Rec. H881901, H8821 (statement of Rep.
Salazar) (“[P]honies have used their stature as a decorated war hero to gain credibility that allows them to commit more serious frauds.”).
Where military matters are concerned, deference to Congress’s judgment is
“at its apogee.” Rostker v. Goldberg, 453 U.S. 57, 70 (1981); see also Rumsfeld v.
21 Forum for Academic & Institutional Rights (FAIR), Inc., 547 U.S. 47, 58 (2006)
(deferring to the stated government interest in the Solomon Amendment over a
First Amendment challenge). That the Court has upheld such laws “even when
[they] have operated in the sensitive area of constitutionally protected rights” demonstrates the legitimacy of the government interest at stake. Ferber, 458 U.S. at 757. Congress’s determination that proscribing false claims is necessary to protect the medals system thus deserves the highest respect.
3. Finding Petitioner’s lies categorically unprotected will not lead to an unacceptable slippery slope or draw impermissible contentbased distinctions.
Petitioner says little to contest that his lie lacked independent value.
Instead, he argues that protecting it is instrumentally necessary to prevent the government from sliding down the slippery slope of criminalizing “seditious libel,”
“the quotidian fib,” and “satire and pseudonymous speech,” Pet’r’s Br. 2021, and to avoid drawing contentbased distinctions prohibited by R.A.V. v. City of St. Paul,
505 U.S. 377 (1992), Pet’r’s Br. 2223. Neither proposition holds.
First, Petitioner argues that prohibiting his speech would necessarily permit the government to proscribe seditious libel. Pet’r’s Br. 1920. Yet seditious libel — the outmoded crime of launching an “impersonal attack on governmental operations,” Sullivan, 376 U.S. at 292 — cannot be criminalized precisely because it satisfies neither factor in the tradition articulated above. Prohibiting false attacks on the government risks chilling protected expression because of “the possibility
22 that a goodfaith critic of government will be penalized for his criticism,” id., and the government lacks any legitimate interest in upholding the notion that its impersonal institutions “could do no wrong,” Chicago v. Tribune Co., 139 N.E. 86, 88
(Ill. 1923), cited in Sullivan, 376 U.S. at 29192. A lie about having received a military medal is not an attack on government operations. It is a false, autobiographical claim that neither attacks nor supports the military or government. If Petitioner reads the unconstitutionality of seditious libel as a wholesale prohibition on criminalizing lies relating in any way to the government, he will have to overrule at least two landmark decisions along the way. See
Garrison, 379 U.S. at 7678 (allowing punishment of malicious defamatory lies about the official conduct of public officials); Falwell, 485 U.S. at 56 (concluding that
“public officials may . . . recover for [IIED]” effected with actual malice).
Petitioner also fears that Congress will enact laws criminalizing “quotidian fib[s].” Pet’r’s Br. 21. But lies “to avoid hurt feelings” or “to set up a surprise party,” United States v. Alvarez, 638 F.3d 666, 674 (9th Cir. 2011) (Kozinski, C.J., concurring in denial of reh’g en banc), do not belong to the longstanding tradition of proscribing valueless falsehoods: the Court has always protected “inevitable” falsehoods when doing so is necessary to give breathing space to speech that matters in the absence of a strong countervailing government interest. See Falwell,
485 U.S. at 52; Sullivan, 376 U.S. at 27172. Unlike with respect to intentional lies involving military medals, the state has no legitimate interest in prohibiting such everyday lies. Satire, pseudonymous speech, and hyperbole, moreover — which
23 “cannot reasonably be interpreted as stating actual facts about an individual” and often have independent artistic value — are protected to provide “breathing space which freedoms of expression require in order to survive.” Milkovich v. Lorain
Journal Co., 497 U.S. 1, 1920 (1990) (internal quotations omitted). Criminalizing knowing lies about receiving military medals would do nothing to change that.
It is Petitioner’s rule, by contrast, that would work a radical change in
American law. Many circuits have long operated on the premise that falsehoods are constitutionally valueless and have founded new categories unrelated to defamation on that basis. See, e.g., Bennett v. Hendrix, 325 F. App’x 727, 741 (11th Cir. 2009)
(lies in political debate unprotected); Reuland v. Hynes, 460 F.3d 409, 414 (2d Cir.
2006) (lies by public employees unprotected); Pestrak v. Ohio Elections Comm’n, 926
F.2d 573, 577 (6th Cir. 1991) (lies by political candidates unprotected); Gates v. City of Dallas, 729 F.2d 343, 346 (5th Cir. 1984) (falsereport violations unprotected).
Petitioner, however, would uproot all of this precedent, leaving no ground for courts to deny protection to knowing deceptions like these, where there is no uncontroversial history of regulation or reputational harm.
Petitioner also suggests R.A.V. is problematic for the Government, but R.A.V. is inapplicable here. Pet’r’s Br. 2223. There, the Court restricted the government’s ability to engage in contentbased discrimination within a category of unprotected speech. See R.A.V., 505 U.S. at 38384. It could not have restricted the government’s ability to engage in contentbased discrimination in establishing a new category, because the Court’s very point was that unprotected categories of
24 speech by definition grant “the power to proscribe [speech] on the basis of one content element (e.g., obscenity).” Id. at 386. Creating a new category without engaging in contentbased discrimination is a contradiction in terms.
Even if R.A.V. does control, however, the category of knowing lies about having received military medals easily satisfies it. Petitioner quotes only two exceptions to R.A.V.’s limitation on contentbased distinctions within a category of proscribable speech, see Pet’r’s Br. 22, but R.A.V. explicitly identified a third: where
“the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot,” R.A.V., 505 U.S. at 390. Lies about objective facts such as one’s status as a medal winner convey no ideas in their own right. Nor do lies about military medals correspond to a particular viewpoint; one might just as readily tell such a lie in order to favor U.S. foreign policy (“As a Navy
Cross winner, I can vouch for the wisdom of this war”) as to oppose it. Since proscribing Petitioner’s lie did not suppress particular ideas, the government did not engage in impermissible viewpoint discrimination.
B. Alternatively, Petitioner’s lie was integral to the criminal act of impersonation.
Speech has long been proscribable where it forms “an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 498 (1949). This categorical exception extends to unlawful acts committed by speech alone. See R.A.V., 505 U.S. at 389 (noting that “words can in some circumstances violate laws directed not against speech but against conduct”); FAIR,
25 547 U.S. at 62. Thus, one might violate treason laws by sharing defense secrets, see
R.A.V., 505 U.S. at 389, violate a ban on discrimination against the military by refusing to tell students that military recruiters are on campus, see FAIR, 547 U.S. at 62, or — as most relevant here — violate an antiimpersonation law through verbal deception, see Alvarez, 617 F.3d at 1213 (laws prohibiting “impersonating an officer . . . raise no constitutional concerns even though they can be violated by means of speech”).
The Act as applied to Petitioner operates exactly as a law prohibiting the impersonation of military medal winners. See, e.g., 18 U.S.C. § 911; United States v.
SilvaNava, 243 F. App’x 589 (11th Cir. 2007) (per curiam) (upholding impersonation statute). In some circuits, individuals may be liable for criminal impersonation by merely holding oneself out as an assumed character, see, e.g.,
United States v. Gayle, 967 F.2d 483, 488 (11th Cir. 1992), while in others they must also cause the deceived person to “follow some course he would not have pursued but for the deceitful conduct,” United States v. Gilbert, 143 F.3d 397, 398
(8th Cir. 1998) (citing United States v. Lepowitch, 318 U.S. 702, 704 (1943)). Taken as a whole, the Stolen Valor Act prohibits individuals from impersonating military medal winners; that prohibition can be violated by deed, 18 U.S.C. § 704(a), or by word, id. § 704(b). That the statute separates these two means of impersonation into two subsections confirms rather than refutes the statute’s function: § 704(b) was added precisely because § 704(a) alone did not criminalize many of the ways in
26 which “imposters use fake medals” to portray themselves as medal winners. 151
Cong. Rec. S1268401, S12688 (daily ed. Nov. 10, 2005) (statement of Sen. Conrad).
Petitioner committed impersonation: he claimed to be a medal winner in order to deceive his listeners. That deception caused his listeners to grant his messages credibility and, in at least one case, to go on a date with him. J.A. 13.
Thus, he deceived a listener into “follow[ing] some course [s]he would not have pursued but for the deceitful conduct.” Gilbert, 143 F.3d at 398. This satisfies all the elements of the crime of impersonation. See United States v. Cohen, 631 F.2d
1223, 1224 (5th Cir. 1980) (holding that “signing in” under a false name and then verbally misrepresenting oneself constitutes impersonation).
Petitioner’s impersonation thus falls outside the First Amendment. See
Alvarez, 617 F.3d at 1213; SilvaNava, 243 F. App’x at 589. But even if subjected to intermediate scrutiny because it is integrally related to criminal conduct, the government’s proscription easily passes. See United States v. O’Brien, 391 U.S. 367,
37677 (1968); United States v. Perelman, No. 1010571, 2011 WL 4436269, at *5
(9th Cir. Sept. 26, 2011) (finding § 704(a) of the Act constitutional under intermediate scrutiny). The government plainly has a substantial interest in promoting the integrity of its system of medals, Alvarez, 617 F.3d at 1216, and prohibiting Petitioner’s conduct advances that interest by preserving the rarity and prestige of such medals. Nor could the government further this end by a comparably effective alternative means. See infra Section I.C.2. Accordingly,
27 Petitioner’s lie carried out the crime of impersonation and his conviction should be upheld.
C. The Act is narrowly tailored to advance the compelling state interest in protecting the military medals system.
Even if false statements regarding the receipt of military medals fall within the ambit of the First Amendment, the Act as applied to Petitioner passes constitutional muster. Restrictions on protected speech are valid if “justified by a compelling government interest” and “narrowly drawn to serve that interest.”
Brown, 131 S. Ct. at 2738. The statute prohibits no more of Petitioner’s speech than necessary to advance the compelling interest in the integrity of the medals system, and thus must be upheld.
1. The state has a compelling interest in protecting the integrity of the system of military medals.
A compelling government interest is one of “the highest order.” Wisconsin v.
Yoder, 406 U.S. 205, 215 (1972). The system of military medals clearly satisfies this standard. Even in striking down the Act, the Ninth Circuit acknowledged that
Congress “certainly has an interest, even a compelling interest, in preserving the integrity of its system of honoring our military men and women for their service and, at times, their sacrifice.” Alvarez, 617 F.3d at 1216.
This interest is far more concrete than the purely symbolic one at issue in
Texas v. Johnson, 491 U.S. 397 (1989). There, the Court invalidated a law criminalizing flag desecration because the state interest in preserving the American
28 flag as a symbol of national unity was not sufficiently compelling. See id. at 41718.
Here, by contrast, Congress does not seek to protect military medals as a generalized symbol of patriotism. Rather, Congress seeks to protect the particular functions of the medals system in its specialized military context: recognizing individual accomplishment within the military’s strict hierarchy, fostering discipline, and establishing standards of excellence for others to emulate.
The flagburning at issue in Johnson, moreover, expressed an inherent message of political protest — “expression . . . at the core of our First Amendment values.” Id. at 411. Falsely claiming to have received a military medal, on the other hand, contains no such independent message, against the government or otherwise. Nor could Congress be attempting to stymie political dissent or
“prescribe what shall be orthodox” by insulating certain values from criticism, id. at
417, for the Act undoubtedly permits statements critical of the military, including
Petitioner’s condemnation of its involvement in “unnecessary wars.” J.A. 20.
2. A ban on knowingly false statements regarding military medals is narrowly tailored to advance the state interest.
The Act as applied to Petitioner “operate[s] without unnecessarily circumscribing protected expression.” Hartlage, 456 U.S. at 54. False claims to military honors undermine the medals’ signaling function. Medals’ value stems from their rarity. If anyone can pose as a medal winner, those medals cannot distinguish individuals who have set themselves apart from others of similar rank or responsibility, impeding the medals system’s ability to foster military “discipline
29 and effectiveness.” Robbins, 759 F. Supp. 2d at 821. Criminalizing such claims, therefore, directly serves the underlying state interest. See id.
The Act as applied restricts speech “no further than necessary” to advance the government’s interest in safeguarding the system of military honors. Ashcroft v.
ACLU, 542 U.S. 656, 666 (2004). Seeking to refute the statute’s narrow tailoring,
Petitioner identifies another means Congress might have chosen for combating false claims to military medals. Pet’r’s Br. 2829. But that is not enough. This Court has clarified that the government need only adopt a “less restrictive alternative[]” that is “at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997).
Yet Petitioner’s proposal — an official public database of medal winners,
Pet’r’s Br. 28 — is not a “similarly practical and effective” means of preventing medals fraud. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 840 (2000)
(Breyer, J., dissenting) (citing Reno, 521 U.S. at 874). Such a database would be woefully inadequate for identifying false claims. The Department of Defense recommended against creating such a database for this very reason, explaining that sixteen to eighteen million military personnel records had been destroyed in a 1973 fire. See Letter from T.F. Hall, Under Sec’y of Def., to Ike Skelton, House Armed
Servs. Comm. Chairman (Apr. 2, 2009), available at www.reportstolenvalor.org/pdf/DoDDBReport04022009.pdf. The Department further determined that such a database would not be costeffective and would implicate serious privacy concerns. See id.
30 Moreover, it is difficult to believe that “social stigma” alone, Pet’r’s Br. 29, especially in the infinity of cyberspace, would sufficiently combat medals fraud.
Private individuals cannot be expected to detect and expose false claims with regularity; the failure of at least fifteen individuals to do so in this case confirms as much. See J.A. 1213. And, in the absence of the Act, private citizens would have to investigate and expose liars to the public without relying on the federal authorities.
Because the likelihood of detection and exposure is so low, nothing short of criminal sanctions would actually serve the Act’s deterrent purpose.
Finally, Petitioner attempts to mount both underinclusiveness and overinclusiveness challenges. See Pet’r’s Br. 2930. Both must fail. Petitioner argues that the statute is underinclusive because it hypothetically would allow him to “stand by while someone else introduces him as a Navy Cross recipient.” Pet’r’s
Br. 29. But laws need not punish nonfeasance by imposing an affirmative duty to survive scrutiny. Nor is the Act underinclusive merely because it would hypothetically permit Petitioner to make false claims about another’s medals or about the medals themselves. Because the public is most likely to credit autobiographical claims regarding military honors, such statements, when false, pose the greatest threat to the integrity of the medals system. That Congress chose to address only the most pressing concerns does not render the statute unconstitutional. See Buckley v. Valeo, 424 U.S. 1, 105 (1976); Mariani v. United
States, 212 F.3d 761, 773 (3d Cir. 2000) (“[T]he government may take steps . . . that
31 only partially solve a problem without totally eradicating it.” (internal quotation omitted)).
Petitioner’s overinclusiveness claim fails as well. In this asapplied challenge, it is irrelevant that the statute “on its face . . . punishes even erroneous statements of fact,” Pet’r’s Br. 30 (first emphasis added), for Petitioner does not claim that he made his false statement erroneously. Similarly, Petitioner cannot plausibly claim that his false statement was “sarcastic, satirical or otherwise non serious.” Id. That the Act on its face could theoretically sweep in such artistic expression is of no moment. Finally, Petitioner was punished not for “spread[ing]
[his] message,” id. (second alteration in original), but for one particular lie completely divorced from the ideas he sought to convey.
Because the Act punished only Petitioner’s knowing lie regarding the Navy
Cross and did not criminalize any of his protected expression, the statute survives strict scrutiny. Petitioner’s conviction should be upheld.
32 II. NOTWITHSTANDING THE DISTRICT COURT’S FAILURE TO PERSONALLY ADDRESS PETITIONER, THE SENTENCE SHOULD BE AFFIRMED.
Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure requires the district court, before imposing a sentence, to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). This procedural right to allocution is grounded in the common law, Green v. United States, 365 U.S. 301, 304 (1961)
(plurality opinion), but is “neither jurisdictional nor constitutional . . . no[r] fundamental.” Hill v. United States, 368 U.S. 424, 428 (1962). The personal invitation to allocute is a ritual that serves a specific function within the sentencing system: to put the defendant on notice of his right to speak. Id. at 429.
At sentencing, the district court announced Petitioner’s right to allocution, explained what that right included, and heard Petitioner’s words in a letter his counsel read aloud to the court. J.A. 2426. The court, however, failed to issue an unambiguous personal invitation to Petitioner to allocute, effecting a technical violation of Rule 32(i)(4)(A)(ii). Because Petitioner raised this issue for the first time on appeal, this Court should apply plainerror review, under which the defendant bears the burden of showing that the error affected the outcome and fairness of the sentencing. However, no matter which party bears the burden, the error was innocuous. Accordingly, this Court should affirm Petitioner’s sentence.
33 A. This Court should review Petitioner’s claim under Rule 52(b)’s plainerror analysis because he failed to object in the district court.
If a defendant fails to object to an error in the district court, “his claim for relief from the error is forfeited.” Puckett v. United States, 129 S. Ct. 1423, 1428
(2009). Absent a contemporaneous objection, “appellatecourt authority to remedy the error . . . is strictly circumscribed.” Id. Ordinarily, the contemporaneous objection rule would bar appellate review of a forfeited error. Id. Rule 52(b) acts as an exception to this principle, United States v. Young, 470 U.S. 1, 15 (1985), providing appellate courts with the authority to review “[a] plain error that affects substantial rights . . . even though it was not brought to the court’s attention,” Fed.
R. Crim. P. 52(b). Because Petitioner failed to object to the allocution error, his claim for relief should be reviewed for plain error.
In a series of cases beginning with United States v. Olano, 507 U.S. 725
(1993), this Court clarified the scope of Rule 52(b)’s plainerror review, and since then has unwaveringly reaffirmed the principle that Rule 52(b) “appl[ies] by its terms to error in the application of any other Rule of criminal procedure.” United
States v. Vonn, 535 U.S. 55, 65 (2002); see id. (applying plainerror analysis to violation of Rule 11); Olano, 507 U.S. at 737 (violation of Rule 24(c)). The Court has explicitly extended this principle to violations of constitutional rights, see, e.g.,
United States v. Marcus, 130 S. Ct. 2159, 2167 (2010) (Ex Post Facto Clause violation); Johnson v. United States, 520 U.S. 461, 464 (1997) (Sixth Amendment jury right violation), and violations of other trial guarantees, see, e.g., Puckett, 129
34 S. Ct. at 1433 (breach of a plea agreement); United States v. Cotton, 535 U.S. 625,
63132 (2002) (Apprendi violation). No matter how serious the error, the Court has emphatically rejected the notion that appellate analysis can be freed from the strictures of Rule 52(b). See, e.g., Marcus, 130 S. Ct. at 2166. Indeed, as the Puckett
Court explained, the “real question” in these cases is “not whether plainerror review applies when a defendant fails to preserve a claim . . . but rather what conceivable reason exists for disregarding its evident application.” 129 S. Ct. at
1429. Puckett concluded that if the defendant “fails to [object], Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others.” Id.
Although the Court has not had the opportunity to determine whether the rule of Olano and its progeny applies in the specific context of allocution, the Court’s acrosstheboard application of plainerror review to forfeited errors indicates that it extends to allocution. Lower courts have recognized as much. See, e.g., United
States v. Rausch, 638 F.3d 1296, 1299 n.1 (10th Cir. 2011) (reviewing purported allocution failure under Rule 52(b)); United States v. Panice, 598 F.3d 426, 438 (7th
Cir. 2010) (same); United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007)
(same); United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc) (same);
United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002) (same); United States v. Adams, 252 F.3d 276, 284 (3d Cir. 2001) (same).
Applying plainerror review to all forfeited errors is consistent with the principles underlying Rule 52(b). Appellate court authority under Rule 52(b) is carefully limited, and for good reason: “anyone familiar with the work of courts
35 understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett, 129 S. Ct. at 1428 (internal quotation omitted). Requiring contemporaneous objection and mandating plainerror review as the consequence for defendants who fail to comply promotes both fairness and judicial economy. It “induce[s] the timely raising of claims and objections,” thereby giving the trial judge, who sees and hears the full context of the error, the ability to
“correct or avoid the mistake so that it cannot possibly affect the ultimate outcome.”
Id. Furthermore, it reduces inefficiencies in the judicial system by creating a more robust trial record, id., and “reduc[ing] wasteful reversals,” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004). The rule also “prevents a litigant from
‘sandbagging’ the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett, 129 S. Ct. at 1428.
Petitioner contends that allocution errors warrant special treatment, despite the Court’s unbroken line of precedent to the contrary and the rationales underlying
Rule 52(b). He argues that the Court should automatically remand the case for resentencing rather than apply plainerror analysis to the Rule 32 violation. Pet’r’s
Br. 3335. Petitioner’s argument reflects an outdated and flawed understanding of this Court’s precedent.
Petitioner points to three cases addressing the allocution right: Green v.
United States, 365 U.S. 301 (1961); Van Hook v. United States, 365 U.S. 609 (1961)
(per curiam); and Hill v. United States, 368 U.S. 424 (1962). None of these cases,
36 however, squarely held that all allocution errors require automatic reversal. Green did not address the remedy for violations of the allocution right because the Court held that the defendant’s allocution right had not been violated. See 365 U.S. at
30406 (plurality opinion). Indeed, courts have recognized that Green “left undecided . . . whether denial of a defendant’s Rule 32 right of allocution requires an automatic reversal and remand for resentencing.” United States v. Myers, 150
F.3d 459, 462 (5th Cir. 1998), abrogated by Reyna, 358 F.3d at 348, 350 (reviewing allocution error for plain error under Rule 52(b)).
Petitioner thus turns for support to a single footnote of dicta in Hill, a case concerning collateral habeas relief for allocution errors. There, the Court referred the reader to Van Hook “for the relief afforded on direct appeal in a case where the sentencing judge disregarded the mandate of Rule 32.” Hill, 368 U.S. at 429 n.6.
Van Hook is a twosentence per curiam opinion, stating in its entirety: “The petition for writ of certiorari is granted. The judgment is reversed and the case remanded for resentencing in compliance with Rule 32 of the Federal Rules of Criminal
Procedure.” 365 U.S. at 609. Although these cases do not contain the reasoned analysis and clear pronouncement that Petitioner suggests, many courts initially interpreted Green, Van Hook, and Hill to require automatic remand for allocution errors because none of the three cites Rule 52. See Adams, 252 F.3d at 27984
(reviewing history).
Even if Green, Van Hook, and Hill once stood for the proposition Petitioner claims, Olano and its progeny changed the law regarding appellate review of
37 forfeited errors. In the Olano line of cases, the Court made clear that Rule 52(b) applies to all forfeited errors and repeatedly rejected automatic reversal. See, e.g.,
Puckett, 129 S. Ct. at 1429. Petitioner contends he has located a single exception to this principle in Nguyen v. United States, 539 U.S. 69 (2003), see Pet’r’s Br. 3334, but Nguyen did not deviate from the categorical rule that forfeited errors receive plainerror review. The error there — the participation of a nonArticle III judge on a Ninth Circuit panel — had rendered the lower court powerless over the defendant’s case. 539 U.S. at 8081. Like subjectmatter jurisdiction, such an error
“can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(internal quotation omitted). This Court therefore reversed without reviewing for plain error, leaving undisturbed its categorical rule that all forfeited errors receive plainerror analysis. See Nguyen, 539 U.S. at 82.
Petitioner argues that applying Rule 52(b) in the allocution context requires the assumption that the Court has overruled Green, Van Hook, and Hill sub silentio. Pet’r’s Br. 34. But the Court was explicit — not silent — when it announced that Rule 52 “appl[ies] by its terms to error in the application of any other Rule of criminal procedure.” Vonn, 535 U.S. at 65; see also Marcus, 130 S. Ct. at 2166; Puckett, 129 S. Ct. at 1429; Johnson, 520 U.S. at 466. After stating explicitly that Rule 52(b) applies across the board, the Court need not take on each procedural rule onebyone to prove that Rule 52(b) applies in each case.
Alternatively, to the extent that the Court agrees with Petitioner’s reading of
Van Hook and Hill and believes that a rule of automatic reversal survived the
38 Olano line of cases, the Court should take this opportunity to announce that allocution errors do not fall outside of Rule 52(b). In addition to bringing allocution errors in line with the past twenty years of this Court’s precedent, this treatment would serve the values of fairness and judicial economy underlying the contemporaneous objection rule and the categorical application of Rule 52(b). Such a holding would prevent “having appellate courts indulge in the pointless exercise of reviewing ‘harmless plain errors’ — a practice that is contrary to the draftsmen’s intention behind Rule 52(b) and one that courts have studiously avoided and commentators have properly criticized.” Young, 470 U.S. at 16 n.14 (citations omitted).
B. Plainerror analysis supports Petitioner’s sentence because the error was innocuous.
Under Olano’s plainerror framework, an appellate court may correct a forfeited error only after the defendant persuades the court that (1) there is an
“error,” (2) the error is “plain,” (3) the error “affect[s] substantial rights,” and (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal quotation omitted) (alterations in original). The Government acknowledges that the district court’s failure to unambiguously address Petitioner constituted an error and that the error was plain. Petitioner still bears the burden of showing that the allocution failure affected his substantial rights as well as the fairness, integrity, or public reputation
39 of the sentencing. Only if he prevails on both questions may the Court exercise its discretion to vacate his sentence. See Cotton, 535 U.S. at 631.
Petitioner prevails on neither. At issue here is solely the district court’s failure to unambiguously direct its allocution invitation to Petitioner, rather than to defense counsel. J.A. 24. Contrary to Petitioner’s characterization of the error, nobody “silenced him at sentencing.” Pet’r’s Br. 48. In fact, for Petitioner’s benefit, the district court not only announced his right (albeit in the thirdperson), but also explained that his right included “say[ing] whatever it is he wants to say to help
[the court] in determining what the sentence should be.” J.A. 24. This narrow error, in full view of the surrounding facts, affected neither the outcome nor the fairness of the hearing.
1. The error did not affect any substantial right.
This Court has consistently interpreted the “substantial rights” inquiry to require that the defendant show that the error was prejudicial, in that it “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. To meet his burden, Petitioner must show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Dominguez
Benitez, 542 U.S. at 82 (internal quotation and alteration omitted). However, whether the Court adheres to precedent and holds Petitioner to that burden or changes course and presumes prejudice, the error did not affect Petitioner’s sentence.
40 a. Petitioner must show a reasonable probability of prejudice to prevail.
The Court has remained steadfast in its assertion that “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734. Over the past twenty years, the Court has addressed the prejudice prong in five cases, and all five times it has reaffirmed the defendant’s burden. See Marcus, 130 S. Ct. at 2164; Puckett, 129 S. Ct. at 1433;
Dominguez Benitez, 542 U.S. at 83; Vonn, 535 U.S. at 6263; Olano, 507 U.S. at 734.
In Puckett, the Court rejected the defendant’s argument for a presumption of prejudice, writing that shifting the burden to the government would “make[] a nullity” of Olano’s requirement that the defendant “make a specific showing of prejudice in order to obtain relief.” 129 S. Ct. at 1433 (internal quotation omitted).
The Marcus Court insisted that the defendant show “a reasonable probability” of prejudice, and it therefore rejected a prejudice analysis that lightened the defendant’s burden. 130 S. Ct. at 2164. In the allocution context, several circuits have recognized this pattern and accordingly have required defendants to bear the burden of showing prejudice. See, e.g., Rausch, 638 F.3d at 1299 n.1 & 1302; United
States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993).
Assigning the defendant the burden in plainerror review is the defining characteristic of analysis under Rule 52(b). It distinguishes Rule 52(b)’s plainerror review from Rule 52(a)’s harmlesserror review, the standard applied when a defendant contemporaneously objected in the trial court. Olano, 507 U.S. at 734.
Relieving Petitioner of this central burden under Rule 52(b) would therefore treat
41 his appeal in significant part as though he had objected at sentencing. Doing so would undermine the purposes of the contemporaneousobjection rule: ensuring a robust record, promoting judicial economy, and preventing “sandbagging.” See
Puckett, 129 S. Ct. at 1428.
To be sure, Olano leaves open the theoretical possibility that certain types of errors for which the defendant “cannot” show prejudice may be subject to a presumption of prejudice. 507 U.S. at 735. But Petitioner overstates this dictum.
He claims that a presumption is warranted when showing prejudice is not impossible, but only “extremely difficult.” Pet’r’s Br. 36. Assuming such a category exists, moreover, it cannot include allocution errors: where there is a “reasonable probability” that an allocution error affected a sentence, Dominguez Benitez, 542
U.S. at 82, a defendant will be able to show that probability. Specifically, defendants might point to arguments, facts, or pleas for mercy that were material but did not reach the sentencing judge, assuming they would not contradict his other statements. Further, a defendant might be able to persuade a court that he was unaware of the allocution right because of a trial judge’s failure to personally address him. That showing a reasonable probability of prejudice is possible in some cases but not others illustrates that allocution errors are, in fact, “defects which come in many different forms” and for which “[c]asebycase [prejudice] analysis is best suited.” Pet’r’s Br. 39.
Moreover, the case law explicitly distinguishes between those errors for which prejudicial effect is impossible to show and those for which harm is merely
42 “difficult to demonstrate.” Pet’r’s Br. 37. Petitioner points to only two circumstances in which courts presume prejudice: total denials of counsel, United
States v. Cronic, 466 U.S. 648 (1984), and Booker errors, United States v. Crosby,
397 F.3d 103 (2d Cir. 2005).1 But even these cases explicitly rely on the impossibility of showing prejudice in their respective contexts to justify a presumption. See Cronic, 466 U.S. at 656 n.16 (“[D]enial of counsel has made it impossible to conclude . . . that the defendant’s case was adequately presented.”
(internal quotation omitted) (emphasis added)); Crosby, 397 F.3d at 115 (finding it
“impossible to tell whether the judge would have imposed the same sentence had the judge not felt compelled to impose a Guidelines sentence” (emphasis added)).
This Court has held defendants to their burden of showing prejudice for errors when the prejudice is difficult, but not impossible, to show. This distinction applies even when the prejudice is more difficult to show than in the context of an allocution error. For example, in Olano, the Court required the defendant to show a reasonable probability that the presence of alternate jurors in the jury room had a prejudicial effect both on the course of jury deliberations and on the verdict, 507
U.S. at 739, notwithstanding the difficulty of such conjecture and the law’s well established hesitation to speculate about jury deliberations, see Tanner v. United
States, 483 U.S. 107, 12021 (1987). In Puckett, moreover, the Court required the defendant to show prejudice from a breached plea agreement by demonstrating
1 Notably, many circuits have refused to presume prejudice in the context of Booker errors, contrary to the cases Petitioner cites. See, e.g., United States v. Norman, 427 F.3d 537, 539 (8th Cir. 2005); United States v. Epstein, 426 F.3d 431, 443 (1st Cir. 2005).
43 that, if the government had kept its promise to recommend a downward adjustment, the sentencing judge would have awarded a downward adjustment and such an award would actually have resulted in a shorter sentence, 129 S. Ct. at
143233 — the very sort of “double counterfactual” that Petitioner complains of here. Pet’r’s Br. 38. When an allocution error is prejudicial, the requisite showing may at worst be “difficult,” but it is not impossible and thus does not give rise to a presumption.
As a last resort, Petitioner suggests that allocution errors be shoehorned into the category of “structural errors” for which this Court may allow a presumption of prejudice. See Pet’r’s Br. 44 n.5. Yet the Court has limited this narrow exception to
“fundamental constitutional errors.” Neder v. United States, 527 U.S. 1, 79 (1999).
Because allocution is “neither jurisdictional nor constitutional . . . no[r] fundamental,” Hill, 368 U.S. at 428, however, “no one thinks that a violation of Rule
32(i)(4)(A)(ii) is in the structuralerror category,” United States v. Noel, 581 F.3d
490, 506 (7th Cir. 2009) (Easterbrook, C.J., concurring).
b. Presumptive or not, prejudice did not result from the error in this case.
Regardless of whether the Court adopts a presumption of prejudice, the failure to personally invite Petitioner to allocute was manifestly benign. For purposes of the prejudice inquiry, the Court should compare the actual hearing to a counterfactual in which no error occurred. See Dominguez Benitez, 542 U.S. at 76.
The counterfactual proceeding in this case is one in which the district court replaces
44 its statement “your client, Mr. Garfield, has the right to speak,” J.A. 24, with the nearly identical statement “you, Mr. Garfield, have the right to speak,” eliminating any error under Rule 32(i)(4)(A)(ii).
Four elements particular to Petitioner’s sentencing demonstrate that this more explicitly personal invitation would not have resulted in a lighter sentence:
First, the district court clearly announced Petitioner’s right to allocute at the sentencing hearing. J.A. 24. The judge then explained he had the right “to say whatever it is he wants to say to help me in determining what the sentence should be.” Id. An equivalent invitation in the secondperson rather than the thirdperson would not likely have caused Petitioner to allocute, nor does Petitioner ever contend that he did not know he was entitled to allocute.
Second, Petitioner’s letter was “structured much as an allocution would have been.” Noel, 581 F.3d at 504. It explicitly pled for “the court’s understanding — and its mercy.” J.A. 26. While the letter does not change the fact that the district court technically erred under Rule 32(i)(4)(A)(ii), it accomplished the primary goal of allocution: requesting, in the defendant’s own words, that the court “temper punishment with mercy.” United States v. De Alba Pagan, 33 F.3d 125, 129 (1st
Cir. 1994).
Third, Petitioner took advantage of several opportunities to persuade the district court to sentence lightly, diminishing the possibility that he would have offered additional material arguments had he allocuted. First, he spoke with the probation officer who prepared the presentence report examined by the court. J.A.
45 30. Then, at the sentencing hearing, Petitioner made a passionate appeal for leniency in a letter read aloud. J.A. 2526. Finally, before the sentence was announced, defense counsel made yet another plea for a sentence at the bottom of the guidelines range. J.A. 28. These three exchanges addressed such wideranging subjects as Petitioner’s constitutional claims, his belief that his was a victimless crime, the evils of unnecessary war, and his history of deception in contexts of varying severity. J.A. 2531. In light of these wideranging efforts to obtain a lighter sentence, it is implausible that Petitioner omitted persuasive, material arguments — especially considering the district court’s clear announcement that he had the right to allocute and his selfdescribed “outspoken” nature. J.A. 25.
Fourth, Petitioner has not offered any statements on appeal that could, with any reasonable probability, lead to a lighter sentence had he made them at sentencing. See United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006)
(requiring such statements). The district court clearly set forth the three reasons underlying the sentence: (1) “the seriousness of the offense,” (2) “the history and the characteristics of the defendant,” and (3) “the need for deterrence.” J.A. 31.
Petitioner identifies nothing he might have said that would have altered the judge’s consideration of the first two factors. Rightly so: Petitioner could not have changed the nature of his crime, nor could he have disputed that he has a “habit of pretending to be someone [he’s] not” and a long history of lies and deception. J.A.
30.
46 All of Petitioner’s arguments are instead directed toward the district court’s third factor: deterrence and the closely related issue of acceptance of responsibility.
With respect to deterrence, the court explained to Petitioner: “[Y]ou’ve suggested that you don’t regret what you did, and you told the probation officer that you’d do it again. So I need to select a sentence that will deter you from that course.” J.A. 30.
Petitioner’s letter confirms that up to the moment before sentencing, he felt no remorse, boldly declaring, “I am not sorry for what I did.” J.A. 26.
This explicit refusal to apologize is unmistakably a reference to his crime, contrary to Petitioner’s assertion that the phrase “I am not sorry for what I did” is
“subject to multiple interpretations.” Pet’r’s Br. 41. Petitioner’s letter refers early on to his prior history of deceptions, but then clearly turns to the topic at hand in the sentencing proceeding. J.A. 26. He admits that he falsely claimed to have won the Navy Cross, and then immediately asserts “[a]nd so here is another truth: I am not sorry for what I did.” Id. The natural reading of his letter as a refusal to accept responsibility is bolstered by his statement to a probation officer in a presentence interview “that he would do it all again.” J.A. 25. Thus, when Petitioner surmises that, had he decided to allocute, he “might have clarified his statements” and apologized, prompting a shorter sentence, Pet’r’s Br. 41, he asks this Court to swallow an utterly improbable chain of events: that Petitioner wrote “I am not sorry for what I did” and told a probation officer “that he would do it all again,” J.A. 25, while secretly feeling remorse; that he heard these statements read aloud in court, but did not speak up to clarify his remorse; that if only the district court had invited
47 him personally to allocute by saying “you, Mr. Garfield, have the right” instead of
“your client, Mr. Garfield, has the right,” then he would have expressed contrition openly in court; that, had he allocuted to contradict his earlier statements, the judge would have believed his aboutface; and that the judge would have altered the sentence accordingly. This scenario is far from “reasonabl[y] probab[le],”
Dominguez Benitez, 542 U.S. at 76 — it is not even remotely plausible.2
At bottom, if the Court were to find prejudice here, it is difficult to imagine any allocution error that would not be found to have affected substantial rights, and the contemporaneousobjection rule would effectively become a nullity in the allocution context. For these reasons, this Court should hold that any ambiguity in the district court’s invitation to allocute did not affect Petitioner’s substantial rights.
2. The error did not seriously affect the fairness, integrity or public reputation of the proceedings below.
Even if an error is plain and affects the defendant’s substantial rights, the reviewing court is not always permitted to correct it. Instead, the appellate court has discretion to do so “only if . . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535 U.S at 63132 (internal quotation omitted). Reviewing courts find this requirement satisfied “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise
2 Because acceptance of responsibility was so unlikely, the effect of an acceptanceof responsibility sentencing adjustment disputed by Petitioner, Pet’r’s Br. 4243, is irrelevant.
48 result.” United States v. Frady, 456 U.S. 152, 164 n.14 (1982). In other words, Rule
52(b) authorizes correction of “only particularly egregious errors.” Young, 470 U.S. at 15 (internal quotation omitted). Because there was no “miscarriage of justice” here, Johnson, 520 U.S. at 470, Petitioner’s sentence should be affirmed.
The allocution error in Petitioner’s case was trivial, as many of the same facts critical to the “substantial rights” analysis confirm. Most importantly, although the district court failed to address Petitioner personally, it made clear to all who were present — including Petitioner himself — that Petitioner had the right to allocute.
J.A. 24. In addition, Petitioner’s letter was read aloud before the court announced the sentence. J.A. 2526. His request for mercy fulfilled the primary objective of the allocution right and ensured that the fairness, integrity, and public reputation of the proceedings remain beyond reproach.
The parties have identified only one case with these unique facts. In United
States v. Noel, the district court asked defense counsel, “Miss Jensen, do you have a presentation you’d like to make regarding sentencing and would your client like to address me?” 581 F.3d at 502. As in Petitioner’s case, the court subsequently failed to “personal[ly] address” the defendant, but his attorney “read[] aloud a letter that
[the defendant] had addressed to the court.” Id. Because the district judge had
“mentioned [the defendant]’s right to allocute” and “the defendant’s own words were read aloud,” the Seventh Circuit held that there was no effect on the fairness, integrity, or public reputation of the proceeding. Id. at 504. Accordingly, the court affirmed the defendant’s sentence. Id. This Court should follow suit.
49 Even if Petitioner is correct that allocution is important to the “perceived equity” of judicial proceedings, Pet’r’s Br. 45, this general point does not justify a remand here. Although this “perception” concern might be implicated in other cases, on this record, it is implausible that the proceeding’s public reputation will be compromised by this Court’s declining to impose on the parties and on the district court a nearly identical proceeding, with only a slightly more explicit invitation to
Petitioner to speak. And systemic interests in finality and judicial economy weigh strongly against carrying out what would be nothing more than a symbolic remand.
See Dominguez Benitez, 542 U.S. at 82 (one purpose of Rule 52(b) is to “reduce wasteful reversals”).
Finally, this Court has repeatedly used the phrase “miscarriage of justice” to describe the sort of showing required to satisfy this prong of the plainerror test.
E.g., Johnson, 520 U.S. at 470; Olano, 507 U.S. at 736. However, the Court has also used this exact phrase to describe what the typical allocution error is not. Hill, 368
U.S. at 428 (holding that an allocution error “is not a fundamental defect which inherently results in a complete miscarriage of justice”). While there may be some allocution errors that warrant a new sentencing hearing to prevent a miscarriage of justice, see, e.g., United States v. AguileraDeLeon, No. 1010788, 2011 WL 3444192, at *23 (5th Cir. Aug. 8, 2011) (district court interrupted defendant’s allocution to limit its scope), this is not such a case. This Court should affirm Petitioner’s sentence.
50 CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the
United States Court of Appeals for the Ames Circuit.
October 21, 2011 Respectfully submitted,
______CAROLINE J. ANDERSON
______MATTHEW R. GREENFIELD
______STEPHEN M. PEZZI
______MITCHELL REICH
______STEPHANIE SIMON
______NOAH M. WEISS
Counsel for Respondent
51 APPENDIX
U.S. Const. amend I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
***************
The Stolen Valor Act of 2005, Pub. L. 109437, 120 Stat. 3266 (codified at 18 U.S.C. § 704) (2006) (excerpts)
An Act To amend title 18, United States Code, to enhance protections relating to the reputation and meaning of the Medal of Honor and other military decorations and awards, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Short Title This Act may be cited as the “Stolen Valor Act of 2005”.
Section 2. Findings Congress makes the following findings: (1) Fraudulent claims surrounding the receipt of the Medal of Honor, the distinguishedservice cross, the Navy cross, the Air Force cross, the Purple Heart, and other decorations and medals awarded by the President or the
52 Armed Forces of the United States damage the reputation and meaning of such decorations and medals. (2) Federal law enforcement officers have limited ability to prosecute fraudulent claims of receipt of military decorations and medals. (3) Legislative action is necessary to permit law enforcement officers to protect the reputation and meaning of military decorations and medals.
***************
18 U.S.C. § 704 (excerpts)
(a) In general. —
Whoever knowingly wears, purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.
(b) False claims about receipt of military decorations or medals. —
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.
53
(d) Enhanced penalty for offenses involving certain other medals. —
If a decoration or medal involved in an offense described in subsection (a) or (b) is a distinguishedservice cross awarded under section 3742 of title 10, a Navy cross awarded under section 6242 of title 10, an Air Force cross awarded under section 8742 of section 10, a silver star awarded under section 3746, 6244, or 8746 of title 10, a Purple Heart awarded under section 1129 of title 10, or any replacement or duplicate medal for such medal as authorized by law, in lieu of the punishment provided in the applicable subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both.
***************
Fed. R. Crim. P. 32(i)(4)(A)(ii)
(i) Sentencing
(4) Opportunity to Speak
(A) By a party. Before imposing sentence, the court must:
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence . . .
***************
54 Fed. R. Crim. P. 52
(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.
55