United States v. Swisher, 11–35796.
| Decision Date | 29 October 2014 |
| Docket Number | No. 11–35796.,11–35796. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Elven Joe SWISHER, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Recognized as Unconstitutional
18 U.S.C.A. § 704(b)
Limitation Recognized
18 U.S.C.A, § 704(a)
Joseph Theodore Horras, Smith Horras, P.A., Boise, ID, for Defendant–Appellant.
Victoria L. Francis (argued), Assistant United States Attorney; Jessica T. Fehr, Special Assistant to the Attorney General, Billings, MT, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. Nos. 1:09–cv–00055–BLW, 1:07–cr–00182–BLW–1.
Before: ARTHUR L. ALARCÓN, A. WALLACE TASHIMA, and SANDRA S. IKUTA, Circuit Judges.
Defendant Elven Joe Swisher was convicted for wearing military medals without authorization in violation of 18 U.S.C. § 704(a) (2002 ed.). After Swisher's conviction became final, the Supreme Court struck down 18 U.S.C. § 704(b) (2011 ed.), which criminalized making false claims regarding an entitlement to military honors, on First Amendment grounds. United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). Swisher moved the district court under 28 U.S.C. § 2255 to have his conviction for wearing unauthorized medals overturned on similar grounds, and the district court denied relief. In the time since Swisher brought this appeal, we have determined that § 704(a) is a facially constitutional statute. See United States v. Perelman, 695 F.3d 866 (9th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2383, 185 L.Ed.2d 1069 (2013). Because Swisher does not provide any basis for concluding that § 704(a) is unconstitutional as applied to his conduct, we affirm the district court's denial of relief.1
Swisher enlisted in the United States Marine Corps on August 4, 1954, a little over a year after the Korean War ended. He spent his first year stationed in Middle Camp Fuji, Japan, and the following two at the Naval Annex in Bremerton, Washington. In August 1957, he was honorably discharged from the Marine Corps into the reserves. Upon discharge, he was given a DD–214 discharge document, a typewritten form that provided Swisher's name, education, type of discharge, last duty assignment, last date of service, and similar information regarding his military service. Section 16 of the form required a listing of Swisher's “decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized.” Section 17 asked for a list of Swisher's “wounds received as a result of action with enemy forces.” In the authenticated copy of Swisher's original DD–214, the term “N/A” (not applicable) is typed in Sections 16 and 17. The form was signed by the personnel officer for Swisher's unit, Captain W.J. Woodring.
In 1958, a year after his discharge, Swisher applied for disability benefits from the former Veterans Administration (VA) in connection with a shoulder injury stemming from a drunk driving incident that occurred off base in Washington, and a nasal operation that took place shortly before he was discharged. The VA awarded Swisher ten percent disability for shoulder arthritis, but denied Swisher's subsequent applications for increased disability benefits for the same injuries.
In 2001, more than forty years after his discharge, Swisher filed a new claim for service-related Post–Traumatic Stress Disorder (PTSD). In his application, Swisher claimed he suffered from PTSD as a result of his participation in a secret combat mission in North Korea in August or September 1955. Along with his application, Swisher provided a self-published narrative that described the North Korea operation. According to the narrative, Swisher was selected for a secret combat mission while stationed at Middle Camp Fuji, Japan. Swisher and approximately 130 other Marines were flown by helicopter to an unknown location in China or North Korea. After the unit disembarked and began to approach a designated hill, it came under heavy enemy gunfire and sustained significant casualties. Swisher was severely wounded and flown back to Japan where he received medical treatment. He later learned he had sustained a “concussion, broken nose, (lost a piece of meat out of the right side), broken foot, broken teeth, collar bone separation, cracked ribs and grenade fragments in both arms, both legs, and torso.”
While in the Third Battalion Medical Center recovering from his wounds, Swisher claimed that he and the other wounded were visited by an unnamed captain, who presented a Purple Heart to each of the wounded men, including Swisher. The Captain “then told us that because of the participation in combat, all the survivors were entitled to and should wear the National Defense Medal, Korean War Service Medal and the Korean War U.N. Service Medal and Ribbons,” along with Navy Commendation Ribbons with a Bronze V. Swisher claims he also received a Silver Star. The Captain cautioned the men not to talk about “the incident” and warned that “anyone who talks will wind up in federal prison.” When Swisher asked the Captain “exactly where we had been and what happened to the others,” the Captain “left abruptly without answering.”
After reviewing Swisher's application for PTSD benefits and the accompanying narrative, the VA denied the claim because Swisher failed to provide corroborating evidence beyond his own statement that his PTSD was service connected.
Swisher appealed the denial and submitted a photocopy of a second DD–214, which included the typewritten comment that “[t]his document replaces the previously issued transfer document” and “[c]hanges and additions have been verified by Command.” Section 16 of the second DD–214 stated that Swisher had received the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Expeditionary Medal with Bronze “V.” Section 17 stated that Swisher had received “[m]ultiple shrapnel and gunshot [wounds]—September 1955, Korea.” The form was again signed by Captain W.J. Woodring. Swisher also submitted a letter signed by Captain Woodring, dated October 16, 1957, that confirmed Swisher's involvement in a “Top Secret” expeditionary mission, and verified his awards. Based on this information, the VA reversed its previous decision in July 2004, ruled that Swisher's PTSD was a compensable disability, and granted Swisher a total of $2,366 a month in benefits.2
About a year later, the VA received information from the military personnel division that the replacement DD–214 was fraudulent. In July 2006, after further investigation confirmed that the DD–214 was forged, the VA reversed its determination that the PTSD was service connected and required Swisher to pay back the PTSD benefits that he had received.
In July 2007, a grand jury indicted Swisher for four violations of federal law: (1) wearing unauthorized military medals in violation of 18 U.S.C. § 704(a); (2) making false statements to the VA regarding his military service, disabilities, and honors,in an effort to obtain benefits in violation of 18 U.S.C. § 1001(a)(2); (3) forging or altering his certificate of discharge, also in an effort to obtain benefits, in violation of 18 U.S.C. § 1001(a)(3); and (4) theft of government funds, in violation of 18 U.S.C. § 641.
During the one-week trial, Lieutenant Colonel Elaine Hensen, the assistant head for the Military Awards Branch at Headquarters Marine Corp, discussed her review of the Marine Corps files and her determination that the files contained no record of Swisher suffering any injuries in combat or receiving or being awarded the Purple Heart or any other medal or award. The government also introduced Exhibit 67, a photograph showing Swisher and another man in Marine Corps League uniforms.3 In the photograph, Swisher is wearing several military medals and awards, and shaking hands with a person in civilian garb. The parties stipulated that the photograph was authentic. Lt. Col. Hensen testified that the photograph showed Swisher wearing the Silver Star, the Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze V, and the UMC Expeditionary Medal. She reiterated that there was nothing “in the United States Marine Corps' files ... to substantiate Mr. Swisher's entitlement to wear any of those awards.” In addition, Jeffrey Shattuck, the head of the Records Correspondence Section for the Personnel Management Support Branch of the Marine Corps, outlined in detail the numerous indicia of fraud on Swisher's replacement DD–214 and accompanying letter from Captain Woodring that Swisher had used to verify his awards.
At the conclusion of the trial, the jury found Swisher guilty on all counts. The court imposed a below-guidelines sentence of 12 months and one day, with a three-year term of supervised release. This court affirmed Swisher's conviction and sentence on appeal. United States v. Swisher, 360 Fed.Appx. 784 (9th Cir.2009).
Swisher subsequently challenged his conviction through a motion under 18 U.S.C. § 2255 and claimed that his conviction for wearing the medals violated the First Amendment under the reasoning of the Ninth Circuit's intervening decision in United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir.2010). The district court denied the motion. See United States v. Swisher, 790 F.Supp.2d 1215, 1245–46 (D.Idaho 2011). This appeal followed. In the interim, the Supreme Court affirmed the Ninth Circuit's Alvarez decision. See United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012).
We review de novo a district court's denial of relief to a federal prisoner under 28 U.S.C. § 2255. United States v. Aguirre–Ganceda, 592 F.3d 1043, 1045 (9th Cir.2010). Section 2255 is a substitute for habeas corpus relief for federal prisoners, see Davis v. United States, ...
To continue reading
Request your trial