Wednesday, May 20, 2015
Court to Hear Case Over Phony Military Medals En Banc
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals will decide en banc whether a federal law criminalizing the unauthorized wearing of military medals violates the First Amendment, the court said yesterday.
In a brief order, the court said that a majority of its unrecused judges had voted to have an 11-judge panel take up the case of Elven Joe Swisher. A three-judge panel last year upheld an order denying Swisher’s motion to set aside his 2007 conviction under 18 U.S.C. §704(a).
Judge Richard Tallman, who tried the related case of David Roland Hinkson on assignment to the U.S. District Court in Idaho, was recused from the en banc vote.
A jury found Swisher guilty of violating §704(a), and other offenses, following an investigation into his testimony at the Hinkson trial. Hinkson is now serving 43 years in prison for tax crimes and for soliciting the murders of U.S. District Judge Edward C. Lodge of the District of Idaho; Nancy Cook, the assistant U.S. attorney who prosecuted Hinkson for income tax evasion; and IRS Agent Steven Hines.
Swisher was the government’s star witness, testifying that Hinkson solicited Swisher’s participation in the planned murders because he thought Swisher was a war hero.
The defense, however, impeached Swisher with evidence that he had not earned any medals or decorations during his Marine Corps service in the 1950s. Swisher then produced a copy of his own DD-214 discharge form, purporting to show that he was awarded the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Expeditionary Medal with Bronze “V,” and that he had been seriously wounded in action.
After being convicted and sentenced, Hinkson moved for a new trial on the ground that Swisher had lied. The defense presented the original DD-214, which it had subpoenaed and which made no mention of any medals or other honors, or of any injuries, along with expert testimony establishing that Hinkson’s photocopy was a forgery.
Tallman denied the motion, however, on the ground that the issue was collateral and did not sway the jury. The Ninth Circuit eventually affirmed in a 7-4 en banc decision.
Subsequent investigation led to Swisher’s indictment and conviction for making false statements to the Veterans Administration, forging discharge documents to obtain benefits, and theft of government funds, as well as wearing unauthorized medals in violation of §704.
During Swisher’s one-week trial, prosecutors said the defendant had in 2001 secured $2,366 a month in federal benefits for post-traumatic stress disorder he claimed to have developed after a covert mission that never actually happened.
An “unpublished narrative” included with Swisher’s application for benefits claimed that “Swisher and approximately 130 other Marines were flown by helicopter to an unknown location in China or North Korea,” Judge Sandra S. Ikuta explained in her opinion for the three-judge panel.
Swisher allegedly claimed that he’d been seriously injured in a firefight while on the mission, and that he’d been awarded the medals but told to keep this a secret.
Marine Corps officials testified at the trial that there was no record of Swisher having received any injuries or medals during his service. Prosecutors also presented a photograph that 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.”
After the jury convicted on all counts, Swisher was sentenced to one year in custody and three years of supervised release.
He moved to set the conviction aside after the Ninth Circuit ruled in 2010 that a different subdivision of §704, called the Stolen Valor Act, violated the First Amendment. That decision was affirmed by the U.S. Supreme Court United States v. Alvarez, 132 S. Ct. 2537 (2012).
The Stolen Valor Act prohibited making a false claim to have been awarded certain medals, including the Congressional Medal of Honor. Although no single rationale for the Alvarez decision commanded a majority, six justices agreed that the law could not prohibit a false statement irrespective of its context.
Swisher presented similar arguments, but U.S. District Judge B. Lynn Winmill denied the motion, and the Ninth Circuit affirmed. The panel based its decision on United States v. Perelman, 695 F.3d 866 (9th Cir. 2012), which construed §704(a) as proscribing the unauthorized wearing of medals with intent to deceive, and upheld it as so construed.
The government’s “extensive evidence that Swisher was not entitled to wear those medals, as no military record documented the awards or Swisher’s claimed combat injuries,” proved at trial that Swisher had intended to deceive by wearing the unauthorized medals, Ikuta wrote.
Senior Judge Arthur L. Alarcón, since deceased, concurred in the opinion.
Senior Judge A. Wallace Tashima concurred separately, but said he was doing so only under the compulsion of Perelman.
“Swisher was convicted because he told a lie,” he wrote. “I do not believe that § 704(a) should be read to punish such pure speech.”
The case is United States v. Swisher, 11-35796.
Copyright 2015, Metropolitan News Company