Sentence overturned for fake Marine
Posted: Thursday, Apr 17, 2008 - 10:49:41 am PDT

Appeals court rules lying to a federal probation officer is like lying to a judge
By RICHARD HANNERS / Whitefish Pilot

The conviction and sentence of a Whitefish man who lied about having served in the U.S. Marines has been reversed by a federal appeals court in San Francisco.

According to court records, William Horvath escaped from prison and was later captured with a firearm in his possession. When Horvath pleaded guilty to being a fugitive in possession of a firearm in July 2001, he told the court he had served in the Marines.

One month later, Horvath provided details on his military service to a federal probation officer who was preparing a pre-sentence report for Chief U.S. District Judge Donald Molloy.

Horvath said he was enlisted in the Marines from May 1986 through May 1991 and received an honorable discharge.

He said he reached the rank of E5 and served as a field artillery spotter-scout based out of Camp Lejeune, N.C.

Horvath also said he received a Purple Heart for his service during the U.S. invasion of Panama. He showed the probation officer a set of dog tags bearing his name.

On top of that, Horvath's father told the probation officer that his son had served in the military.

The probation officer was unable to confirm through the Defense Department whether Horvath had been enlisted in the Marines. Molloy relied on several mitigating factors, including Horvath's claim to military service, to impose a lenient sentence.

"I am going to go out on a limb in this case, Mr. Horvath," Molloy said, "and what I'm going to do is put you on probation."

More than four years later, the court learned that Horvath had lied about his military service. Horvath entered a conditional plea of guilty, reserving his right to appeal.

According to Bill Mercer, U.S. Attorney for Montana, Marine Corps officials had looked at photos provided by Horvath and found that his uniform was worn improperly, decorations were displayed improperly, and equipment and uniforms either did not fit with the era or were inconsistent with other items in the photos.

Horvath faced up to five years in prison, a $250,000 fine and three years supervised release. Instead, Molloy sentenced Horvath to four years probation, home confinement for four months, a $1,500 fine, a $100 special assessment -- and a public apology.

In addition to writing letters to the commandant of the U.S. Marine Corps, the Veterans of Foreign Wars and the American Legion in Kalispell, admitting that he had lied about his service and apologizing for his action, Horvath was ordered to wear a sandwich board in public admitting his crime.

Molloy ordered Horvath to spend 50 hours marching in front of the U.S. courthouse in Missoula wearing a sign that read "I am a liar. I am not a Marine" in front and "I have never served my country. I have dishonored veterans of all wars" on back.

People familiar with Molloy were not too surprised by the sentence. Molloy was raised on the High Line, played running back for the University of Montana football team, and landed F-4 Phantom fighter jets on aircraft carriers during the Vietnam War.

The Whitefish Pilot ran Horvath's letter of apology in December 2006.

"I realize that by falsely representing myself as a marine, I have dishonored all those who have served in the United States Marine Corps and all other branches of the U.S. military, and that my false statements have diminished and tarnished the contributions and sacrifices that other have made to protect my freedom," he wrote.

On May 11 last year, however, the U.S. Court of Appeals for the Ninth Circuit ruled against Molloy. Citing a U.S. statute that basically protects defendants who make false statements to a judge during a judicial proceeding, a three-judge panel ruled that lying to the probation officer was the same as lying to a judge and was therefore exempt from criminal liability.

On April 9, the appeals court denied the U.S. Attorney's request for a rehearing with a larger panel of judges. The lower court was ordered to vacate Horvath's conviction and sentence.

Several dissenting judges expressed concern about the decision's impact on the federal judicial system.

"If Congress had wanted to exempt statements made by a defendant to a probation officer, then Congress knew how to do it," Circuit Judge Carlos Bea wrote.

Bea argued that a probation officer is expected to investigate a defendant's history, not be "a mere conduit of information to the judge."

"The Dow Jones ticker tape is a conduit," Bea wrote. "The Wall Street Journal is not."

The U.S. Attorney's Office has 90 days to appeal the decision to the U.S. Supreme Court.''