U.S. v. Swisher

• Decision Date: 28 July 2011
• Docket Number: Case Nos. 1:09–CV–055–BLW,1:07–CR–182–BLW.
• Parties: UNITED STATES of America, Plaintiff–Respondent,v.Elven Joe SWISHER, Defendant–Movant.
• Court: U.S. District Court — District of Idaho

790 F.Supp.2d 1215

UNITED STATES of America, Plaintiff–Respondent,

v.Elven Joe SWISHER, Defendant–Movant.

Case Nos. 1:09–CV–055–BLW

1:07–CR–182–BLW.

United States District Court, D. Idaho.

April 10, 2011.Decision Denying Motion for Reconsideration July 28, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as Unconstitutional18 U.S.C.A. § 704(b) Elven Joe Swisher, Cottonwood, ID, pro se.Jessica T. Fehr, United States Attorney's Office for the Dist. MT, Billings, MT, for Plaintiff–Respondent.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief Judge.

INTRODUCTION

Pending before the Court are Movant Elven Joe Swisher's (“Swisher”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1) and Renewed Motion Under 28 U.S.C. § 2255 (Dkt. 18). Having reviewed the Motions, the Government's Response (Dkt. 11), Swisher's Reply (Dkt. 13),¹ and the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion and the Renewed § 2255 Motion.²

BACKGROUND

Swisher alleges in his § 2255 Motion several claims of ineffective assistance of counsel most of which are based on conflict of interest. He alleges that defense counsel, M. Lynn Dunlap (“Dunlap”) and Britt Groom (“Groom”) had an actual conflict of interest arising out of their former representation of an individual by the name of David Hinkson (“Hinkson”) and that their performance was deficient in several other respects unrelated to the alleged conflict of interest. The Court recently denied Swisher's Motion for Discovery (Dkt. 14). See Order (Dkt. 17).

In its Order denying discovery, the Court briefly summarized the background of this case. However, a more detailed statement of facts is warranted here due to the unusual circumstances leading up to Swisher's prosecution and his numerous allegations of ineffective assistance of counsel.

1. Pre–Indictment

Swisher served with the United States Marine Corps on active duty from August 4, 1954 until August 3, 1957 when he was discharged into the reserves as evidenced by a DD–214 form signed by his personnel officer, Captain W.J. Woodring (“Woodring”). The boxes on the form for indicating any medals, awards, or commendations and for indicating any wounds received in combat were each marked “N/A.” See Resp., Ex. A, Dkt. 11–1.

In 1958, Swisher applied for and received benefits from the Veteran's Administration (“VA”) for certain service-connected injuries. Over forty years later, in 2001, he applied for benefits for Post Traumatic Stress Disorder (“PTSD”). He claimed his PTSD arose from his participation and injuries received in a secret combat mission rescuing prisoners of war held in North Korea in August or September of 1955 while he was stationed at Middle Camp Fuji, Japan. The VA denied his claim because there was no record that the mission ever occurred.

In 2003, Swisher appealed the denial of his benefits. He supported his claim with a photocopy of a “replacement” DD–214 form—accompanied by a letter dated October 15, 1957 that appeared to be from Woodring—indicating that Swisher had received the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Commendation Medal with Bronze V and that he was entitled to wear the Marine Corps Expeditionary Medal. See Resp., Ex. C, Dkt. 11–2. The replacement DD–214 further indicated that Swisher had received multiple shrapnel and gunshot wounds in September of 1955 in Korea. Id. In support of Swisher's claim, Groom submitted affidavits to the VA stating that he had seen the documents and believed them to be authentic based on his experience as a Naval Intelligence Specialist with operational designation. The VA thereafter granted Swisher disability benefits for PTSD while also sending the documents to Headquarters Marine Corps to be authenticated.

During approximately the same time period, Swisher was a Government witness in a murder-for-hire case prosecuted in the District of Idaho over which visiting Judge Richard C. Tallman presided. United States v. David Roland Hinkson, CR–04–127–SRCT. Swisher testified that based on his statements to Hinkson regarding his military experiences, Hinkson asked him to torture and kill a federal Judge, an IRS Special Agent, and an Assistant U.S. Attorney. See United States v. David Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009), reh'g denied and dissent vacated and superseded, 611 F.3d 1098 (9th Cir.2010). During his testimony, Swisher wore what appeared to be a Purple Heart.

After cross examining Swisher during the Hinkson trial, defense counsel Wesley Hoyt presented to the Court a recently received letter from the National Personnel Records Center (“NPRC”) stating that Swisher's official military record did not indicate that he had been in combat or awarded any medals. Hinkson, 585 F.3d at 1254. Judge Tallman allowed counsel to re-open cross examination to question Swisher regarding the Purple Heart he was wearing. Id. After Swisher testified that he had received it following a post-Korean War classified mission to free prisoners of war, counsel challenged Swisher with the NPRC letter. At that point, Swisher produced the replacement DD–214 which indicated he not only had been awarded the Purple Heart but also several other medals. After denying counsel's motion for a mistrial, Judge Tallman instructed the jury to disregard the testimony about the Purple Heart.

Before the trial ended, the Court received, pursuant to subpoena, a certified copy of Swisher's complete military file. The Government also presented a letter from Lt. Col. K.G. Dowling of the National Personnel Management Support Branch of the United States Marine Corps questioning the authenticity of both the replacement DD–214 and accompanying letter from Woodring. The Dowling letter stated that Swisher had neither been in combat nor been awarded medals. Judge Tallman excluded both the letter and the file from evidence on the ground in part that they were “unauthenticated and facially inconclusive” as to whether Swisher lied about his combat experience. Id. at 1256. Hinkson was convicted of three counts of solicitation to commit a crime of violence in violation of 18 U.S.C. § 373.

Based on the doubt shed on Swisher's combat-related claims during the Hinkson trial, the VA investigated further and was advised by the Marine Corps that the replacement DD–214 was not authentic. The VA then terminated his benefits for PTSD. The Government subsequently sought an indictment against Swisher.

2. Indictment, Discovery, and TrialA. Indictment

Swisher was charged in a four-count Indictment with (1) wearing unauthorized military medals in violation of 18 U.S.C. § 704(a) including the Purple Heart, Silver Star Medal, Navy and Marine Corps Medal (Gold Star in lieu of the Second Award), and Marine Corps Commendation Medal with Combat “V;” (2) making false statements in violation of 18 U.S.C. § 1001(a)(2) to the VA that he was involved in combat operations, was awarded those medals, and suffered from resulting PTSD in order to obtain additional benefits; (3) making false statements in violation of 18 U.S.C. § 1001(a)(3) by using a forged, counterfeit, or falsely altered certificate of discharge from the United States Marine Corps in support of those claims; and (4) and theft of government funds in violation of 18 U.S.C. § 641 by effectively stealing disability benefits from the VA by presenting false testimony and using a forged DD–214 form to secure a higher disability rating and increased benefits. Indictment, Dkt. 1.

B. Discovery

Although the Court initially appointed counsel, Swisher subsequently retained Dunlap who thereafter secured two continuances of the trial date to engage in discovery. On various dates, Dunlap requested from the Government documents from the Department of Defense, United States Marine Corps, and the VA among other agencies. See, generally, Aff. in Support of Mot. to Continue, Dkt. 16–1; Notice of Req. for Disc., Dkt. 18; Stipulation for Mot. to Continue, Dkt. 20; and Affs. in Support of Third Mot. to Continue, Dkts. 27 and 28.

In conjunction with a third Motion to Continue, Dunlap filed a Motion to Compel seeking an order from the Court for the Government to produce copies of the following documents: (1) all DD–214s issued by Woodring during his tenure at Bangor, Bremerton Naval Station; ³ (2) all records pertaining to an incident at Bangor involving an individual with an M–1 on the roof of the barracks threatening to shoot people; (3) the Inspector General's travel itineraries during the period of time of Swisher's alleged court martial in 1956; (4) documents from the Redline Brig in Middle Camp, Fuji, Japan during the time Swisher was incarcerated as Prisoner No. 21 for three days; (5) documents pertaining to injuries he suffered at Middle Camp, Fuji, Japan, including medical day log, incident reports, and grenade range training logs; and (6) documents relating to correspondence of General Graves B. Erskine, Special Operations Commander in 1954 and 1955, regarding the POW situation in North Korea, his military biography, his correspondence with Lt. Col. Marshall (Base Commander), his correspondence with Middle Camp or South Camp, his travel itineraries, and the visitor's log for Middle Camp. Aff. in Supp. of Mot. to Compel, Dkt. 30. According to Swisher, General Erskine was responsible for and in charge of all clandestine or classified military operations in the Korean theater in 1955. Id. at 6–7.

The Government opposed the Motion to Compel on the grounds that it had engaged in open-file discovery, had exceeded the discovery obligations of Fed.R.Crim.P. 16, and had fully disclosed any Brady material in its possession. Resp. to Mot. to Compel, Dkt. 32. The Government had provided its entire file together with the complete VA file, Swisher's military personnel file (which consisted of approximately 150 pages), and other unrelated personnel documents regarding Swisher's service. Id...