The Volokh Conspiracy

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Free Speech

Brett Kimberlin (Speedway Bomber) Loses Attempt to Vacate Long-Past Convictions

Kimberlin is also known for having accused Dan Quayle of having bought marijuana from him, and has since become a frequent litigant, including against bloggers Patrick Frey (Patterico), Aaron Walker, and others.


From Judge Tanya Walton Pratt's decision Friday in Kimberlin v. U.S. (S.D. Ind.); note that there's an interesting First Amendment twist as to the impersonation conviction:

In February 1979, Kimberlin was charged in a 34-count indictment with crimes related to a series of bombings in Speedway, Indiana. Over the course of three trials in 1980 and 1981, Kimberlin was convicted of numerous felonies arising out of his impersonation of a Department of Defense police officer and eight explosions that occurred in Speedway, Indiana in September 1978. Kimberlin has challenged his convictions on numerous occasions. He served his sentences and was released from imprisonment in 2001.

In addition to the convictions challenged in this case, Kimberlin has incurred a 1974 felony perjury conviction …; and the Government asserts and Kimberlin has not disputed a 1979 felony conviction for conspiracy to distribute marijuana in Texas. {Based on [references to the conspiracy conviction] in this record, the Court concludes that the felony conviction still exists.}

Kimberlin is challenging the validity of some of his past convictions, but that's hard to do for convictions that are decades old, such as these ones. The time for direct appeal has run out. Any appeal via a petition for habeas corpus is no longer available because his sentences have long expired. His only remedy is therefore under the writ of coram nobis, "an extraordinary remedy, allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction" (emphasis added)—and the reversal of the convictions would have to eliminate the civil disability.

"[C]oram nobis relief is available when: (1) the error alleged is of the most fundamental character as to render the criminal conviction invalid; (2) there are sound reasons for the defendant's failure to seek earlier relief; and (3) the defendant continues to suffer from his conviction even though he is out of custody." …

[Kimberlin] seeks relief from [his past] convictions asserting that they have interfered with his ability to obtain government grants, sit on a jury in his home state of Maryland, and renew his pilot's license, among other impediments.

The Court assumes, without deciding, that these alleged impediments cause Kimberlin more than merely incidental harm. But because he has been convicted of multiple felonies in separate trials, including a 1974 perjury conviction in this Court, and the 1979 conspiracy to distribute marijuana conviction in Texas, neither of which are at issue here, a successful challenge to any one conviction will not relieve him of these impediments. See United States v. Keane (7th Cir. 1988) ("a single felony conviction supports any civil disabilities and reputational injury [a convicted felon] may have to endure").

As discussed in detail below, Kimberlin's challenge to his convictions for impersonating a Department of Defense official fail. Even if he were to successfully overturn his other bombing-related convictions, he would remain a convicted felon on at least the impersonation convictions, and likely his felony perjury and felony drug conspiracy convictions which he does not challenge here. Those felony convictions interfere with his ability to sit on a jury in Maryland state court, renew his pilot's license, and obtain government grants whether his convictions related to the explosions in Speedway are overturned.

"Courts must conserve their scarce time to resolve the claims of those who have yet to receive their first decision." United States v. Sloan (7th Cir. 2007). Kimberlin's liberty is not at stake and overturning his bombing-related convictions would not relieve him of the civil impediments discussed above. Therefore, the Court will analyze Kimberlin's challenge to his false impersonation convictions, but not his other claims.

Kimberlin challenges his convictions under 18 U.S.C. § 912, for falsely impersonating a Department of Defense … official. He argues that these convictions violate the First Amendment under United States v. Alvarez (2012) …. Specifically, Kimberlin argues that his convictions under § 912 violate the First Amendment because his wearing of the uniform and DOD patch while conducting commercial transactions constitutes expressive speech protected by the First Amendment. He seeks to extend the reasoning of Alvarez and United States v. Swisher (9th Cir. 2016), cases which dealt with the Stolen Valor Act of 2005 to his convictions under § 912.  {In addition, Mr. Kimberlin challenges his convictions under 18 U.S.C. § 701 for unlawfully possessing an official DOD insignia, and 18 U.S.C. § 713 for illegal use of the presidential seal violate the First Amendment under Alvarez, but the Court need not reach these arguments.}

In Alvarez, the United States Supreme Court addressed the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b) (which prohibits lying about being awarded military medals) and held it to be invalid under the First Amendment. In Swisher, the Ninth Circuit extended the holding in Alvarez to § 704(a) (which criminalizes the unauthorized wearing of such medals). However, [n]either Alvarez nor Swisher held convictions under § 912 or § 701, the statutes Kimberlin was convicted under, to be unconstitutional.

Last year, the Seventh Circuit addressed an argument similar to Kimberlin's in United States v. Bonin (7th Cir. 2019). In Bonin, the Seventh Circuit rejected the defendant's attempt to extend the reasoning of Alvarez to overturn his conviction under 18 U.S.C. § 912 for impersonating a United States Marshal. The Seventh Circuit squarely held that the acts-as-such clause of § 912 is narrowly drawn to serve the government's compelling interests of protecting the integrity of government processes.

Undeterred, Kimberlin argues that Bonin left the door open for challenges to § 912 in less egregious cases such as his, but this Court disagrees. The Seventh Circuit rejected Bonin's argument that, if allowed to stand, 18 U.S.C § 912 could be used to prosecute people for simply wearing Halloween costumes. But that was in the context of Bonin's void for vagueness challenge, not his facial challenge under Alvarez, and the Seventh Circuit ultimately avoided evaluating his void for vagueness challenge because his conduct—claiming to be a U.S. Marshal and displaying a weapon in a theater as a way to intimidate other moviegoers who asked him to stop talking on his cell phone—clearly violated § 912.

The same can be said of Kimberlin's conduct. He was not on his way to a Halloween party when he stopped to have a calendar or party invitations printed. The evidence at his trial demonstrated that he wore a DOD patch on his shirt and attempted to have copies made of the presidential seal.

It makes no difference that the copies were never made for Kimberlin. It was reasonable for the jury to conclude that he wore the DOD patch to deceive the copy store employee so that he or she would copy the presidential seal for him and the impersonation was to falsely imply that he was government official. Bonin held that public safety and protection of the reputation of law enforcement were compelling interests and § 912 is narrowly drawn to protect that interest. Thus, Kimberlin's First Amendment challenge is foreclosed by Bonin….

Kimberlin has not shown that a fundamental error renders his convictions under § 912 invalid. Because these felony convictions, and his other unrelated felony convictions are valid, the Court need not address Kimberlin's arguments regarding the alleged errors in his second and third trials which resulted in his conviction on charges related to the explosions in Speedway in the fall of 1978….

The court also rejected Kimberlin's challenge to his felon-in-possession-of-explosive convictions:

In Rehaif v. United States (2019), the United States Supreme Court held that to convict an individual of illegal firearm possession under 18 U.S.C. §§ 922(g) and 924(a)(2), the Government must prove (1) the individual knew he or she possessed a firearm, and (2) the individual knew that he or she belonged to the relevant category of persons banned from possessing a firearm. Kimberlin asserts that his felon in possession of explosive convictions (violations of 18 U.S.C. § 842(i)(1)), as charged in Counts 23 and 24 of the 34-count indictment, must be vacated because the government never proved at trial that "he had any criminal intent or that he knew he had been convicted of a crime punishable by more than one year." The evidence presented at Kimberlin's trial does not support this assertion.

For more on Kimberlin's lawsuits against the bloggers (which I mention chiefly because I think some of our readers may have followed them in the past), see here, here, here, and here.