United States v. Swisher

• Decision Date: 11 January 2016
• Docket Number: No. 11–35796.,11–35796.
• Citation: 811 F.3d 299
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Elven Joe SWISHER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

811 F.3d 299

UNITED STATES of America, Plaintiff–Appellee,

v.Elven Joe SWISHER, Defendant–Appellant.

No. 11–35796.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Sept. 9, 2015.

Filed Jan. 11, 2016.

Joseph Theodore Horras, Boise, ID, for Defendant–Appellant.

John M. Pellettieri (argued), Attorney, Appellate Section; Leslie R. Caldwell, Assistant Attorney General; Sung–Hee Suh, Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for Plaintiff–Appellee.

Before: SIDNEY R. THOMAS, Chief Judge and STEPHEN REINHARDT, ALEX KOZINSKI, M. MARGARET McKEOWN, MARSHA S. BERZON, RICHARD R. CLIFTON, JAY S. BYBEE, SANDRA S. IKUTA, N. RANDY SMITH, JACQUELINE H. NGUYEN and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge IKUTA

; Dissent by Judge BYBEE.

OPINION

IKUTA, Circuit Judge:

This appeal requires us to determine whether the reasoning in United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), which invalidated a statute prohibiting lying about being awarded military medals, see 18 U.S.C. § 704(b) (2011 ed.),¹ also applies to a statute criminalizing the unauthorized wearing of such medals, see 18 U.S.C. § 704(a) (2006 ed.).² We hold that it does, and therefore reverse the district court.³

I

Defendant Elven Joe Swisher enlisted in the United States Marine Corps on August 4, 1954, a little over a year after the Korean War ended. In August 1957, he was honorably discharged from the Marine Corps into the reserves. Upon discharge, Swisher was given a DD–214 discharge document, a typewritten form that provided his name, education, type of discharge, last duty assignment, last date of service, and similar information regarding his military service. The form required a listing of Swisher's "decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized." In the authenticated copy of Swisher's original DD–214, the term "N/A" (not applicable) is written in the field.

In 2001, more than forty years after his discharge, Swisher filed a 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 wounded in battle, and subsequently presented with a Purple Heart by an unnamed captain who visited him in the hospital. The same captain told him he was "entitled to and should wear the National Defense Medal, Korean War Service Medal and the Korean War U.N. Service Medal and Ribbons." Swisher claims he also received a Silver Star and a Navy Commendation Medal and Ribbon with a Bronze "V."

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." The new form stated 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." 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.⁴

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 Corps, discussed her review of the Marine Corps files and her determination that the files contained no record of Swisher 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.⁵ 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. Henson testified that the photograph showed Swisher wearing the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze "V.," and 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 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. We 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 (9th Cir.2010). The district court denied the motion and an appeal followed. See United States v. Swisher, 790 F.Supp.2d 1215, 1245–46 (D.Idaho 2011) ; United States v. Swisher, 771 F.3d 514 (9th Cir.2014).

While Swisher's appeal was pending, the Supreme Court affirmed our decision in Alvarez, and held that § 704(b) unconstitutionally infringes upon speech protected by the First Amendment. See United States v. Alvarez, –––U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). Nevertheless, we subsequently distinguished Alvarez, and held that § 704(a) survived First Amendment scrutiny. United States v. Perelman, 695 F.3d 866, 871–72 (9th Cir.2012) (as amended). Bound by Perelman, a three-judge panel rejected Swisher's constitutional challenge to § 704(a). Swisher, 771 F.3d at 524. In his petition for rehearing, Swisher argued that § 704(a) was unconstitutional under the reasoning set forth in Alvarez and asked us to overrule our contrary decision in Perelman. We took the case en banc to reconsider this issue.

II

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, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), and allows a petitioner to file a motion to "vacate, set aside or correct" the petitioner's conviction or sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack," 28 U.S.C. § 2255(a).

In evaluating a § 2255 motion, we are not constrained by 28 U.S.C. § 2254(d), which precludes federal courts from granting habeas relief to a state prisoner with regard to any claim adjudicated on the merits unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Section 2255 does not have a similar restriction on review of claims by federal prisoners.

Although Swisher's challenge to his conviction is based on a Supreme Court decision decided after his conviction became final, we are not barred from considering his claim. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), generally precludes the application of "new constitutional rules of criminal procedure" to cases that "have become final before the new rules are announced." Bousley v. United States, 523 U.S. 614, 619–20, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks omitted). While Teague is applicable in the § 2255 context, see United States v. Sanchez–Cervantes, 282 F.3d 664, 667–68 (9th Cir.2002), Teague does not bar the retroactive application of decisions holding "that a substantive federal criminal statute does not reach certain conduct," Bousley, 523 U.S. at 620, 118 S.Ct. 1604. Alvarez is a substantive decision of that sort.

Nor does Swisher's failure to raise his constitutional claim at trial or on direct appeal prevent us from reviewing his claim. Although federal prisoners are generally barred from raising claims on collateral review that they could have raised on direct appeal, see Bousley, 523 U.S....