On April 11, 2008, former U.S. Marine PFC Elven Joe Swisher was convicted on all charges against him (wearing unauthorized medals, perjury by making false statements, forgery by falsifying his discharge documents and theft by receiving veterans’ benefits without entitlement). He was represented by two lawyers: M. Lynn Dunlap and Brit Groom.

The Marine Corps News (on September 16, 2007) published an article about “Five Fakers.” The fifth was E. Joe Swisher from Cottonwood, Idaho: “The lie,” the News reported, was that “Swisher claimed he was a Korean War hero who took part in highly classified, secret missions to free U.S. prisoners of war. He claimed to have earned the Silver Star, Purple Heart, Navy and Marine Corps Medal with Gold Star, and Navy and Marine Corps Commendation Medal with Bronze ‘V.’”

He also, falsely claimed being on an expeditionary force to free POWs in North Korea and that he sustained multiple shrapnel and gunshot wounds while in Korea (September 1955). In his June 2004 VA hearing to obtain benefits, he testified under oath and claimed to be suffering from combat-related post-traumatic stress disorder from the alleged 1955 combat in Korea. To bolster his account, Swisher wrote a book: A Marine Remembers – chronicling his fictitious experiences which quoted from the movie The Sands of Iwo Jima – to give his account the appearance of authenticity.

The reality was that he served in the Marine Corps on active duty from 1954 to 1957 (all after the resolution of the Korean War). He was never assigned to nor traveled in Korea. His rank and training would have prohibited him from serving on an expeditionary force reserved for skilled combatants such as Green Berets. During his tour, he was demoted from Corporal to private first class (PFC) after being court-martialed for disciplinary reasons. Finally, he was discharged without distinction of any kind in 1957.

The Marine Corps News article continued, “He [Swisher] was arrested in July [2007] and charged in the Idaho Federal District Court with wearing unauthorized military medals, theft of government funds and two counts of making false statements, according to court documents. He was facing up to 20 years and 6 months in prison along with a $755,000 fine, charging documents state.”

By contrast, the Lewiston [Idaho] Tribune inaccurately reported on January 31st, 2008 (two plus months before Swisher’s trial) that “the maximum penalty for theft of government funds is 10 years in prison, a $250,000 fine and three years of supervised probation, according to court files. Two counts of making false statements have potential penalties of five years in prison for each, a $250,000 fine and three years of supervised release. Wearing unauthorized military medals is punishable by six months in prison, a $5,000 fine and a year of supervised release.”

In July 2004, Swisher defrauded the Veterans Administration of unauthorized benefits. He testified before a Federal Administrative Law Judge in Boise, Idaho that he was disabled, from injuries sustained in combat, during his claimed Korean War era tour of duty. Based on a scam, he successfully received an award that included medical and disability benefits – in part because he had doctored a so-called “Replacement” DD-214 (a military discharge document) by adding awards to make his claims appear authentic.

As a part of his fraud: Swisher had scammed a genuine war-hero, Medal of Honor recipient, Raymond Michael Clausen, into giving him a copy of a legitimate “replacement” award document – in order to create Swisher’s fictitious “Replacement” DD-214 (see attached the Under Oath Statement by the widow of Mike Clausen, Lois Clausen, dated September 23, 2008; and see also the attached Affidavit, dated October 3, 2008, of Joe Volk – a person formerly defrauded by Swisher who had been a Corporal in Marine Corps and who had served in combat with Clausen).

The twist to Swisher’s case was that six months after he committed fraud on the VA, he wore a formal Purple Heart dress pin, visibly displayed on the lapel of his black leather jacket, while testifying in a Federal courtroom in Boise, Idaho. He testified that because of his (fictitious) U.S. Marine Corps combat experience, he had been selected by local businessman, David Hinkson, to kill three federal officials (a U.S. district judge, an assistant U.S. attorney and an Internal Revenue Service special agent).

According to Swisher, it was his “combat military record” that supposedly qualified him to be a hit man in the eyes of Hinkson, because Swisher had supposedly killed so “many” people. In reality, Swisher also conjured up the solicitation accusation as a means to eliminate Hinkson, a former U.S. Navy Viet Nam era veteran, in an attempt by Swisher and his associates could take over Hinkson’s successful “WaterOz” business (a dietary supplement company that manufactures ionized mineral water).

The Government failed to investigate the fact that Swisher was hospitalized and wheelchair bound and wearing a catheter when he claimed Hinkson approached him to kill people. Worse yet, the judge in Hinkson’s case, Richard C. Tallman, would not allow Hinkson to present his passport to show that he was outside the U.S. when the solicitation supposedly happened.

On Swisher’s dramatic, yet phony testimony alone, Mr. Hinkson was sentenced to 33 years in Super Max prison because the truth of Swisher’s fraud was not allowed into evidence – unbelievable, yet true. Currently Hinkson remains in solitary confinement awaiting a 9th Circuit Court of Appeals to reverse his conviction.

This was a double fraud on Hinkson by Swisher because the proof is now known that his combat history was imaginary and the supposed solicitation was fictitious, presented without any corroboration, i.e., Hinksons crime existed only in Swisher’s mind.

The trial judge (Tallman), who had an entire weekend to examine Swisher’s U.S. Marine Corps military record, made a finding, contrary to the USMC investigation and report that Swisher had traveled to Korea on a secret mission and received military awards as Swisher claimed – thus erroneously validating Swisher’s fictitious claim of combat and medals for valor. Thus, Judge Tallman, with the actual military record in front of him, made an unwarranted and false finding about Swisher in the Hinkson case.

The ruling regarding Swisher’s record contradicted the result of the five month investigation by the U.S. Marine Corps Commandant’s Office. The trial judge, unschooled in examining military records, without information and engaging in speculation, effectively superimposed his own interpretation of Swisher’s record, contrary to the authoritative and in depth analysis by the Marine Corps.

LT. Colonel K. G. Dowling, USMC assistant head of the Military Awards Branch under the direction of the Commandant, stated, “Further review of Mr. Swisher’s records reveals that he is not entitled to any service awards, including the Marine Corps Expeditionary Medal … [there is] no information in his military record … to substantiate his entitlement to a Purple Heart Medal … [there is] no evidence that Mr. Swisher was involved in any classified operations … [and] Swisher’s official records do not support his entitlement to any awards….”

However, after having received the Dowling Report and the record, Judge Tallman did not dispel the jury’s belief, created by Swisher, that he was a true combat hero. He said, “…the file indicates that Mr. Swisher was, in fact, involved in top secret activities; and it appears [he] was awarded the medals that he claims that he was awarded.” Thus, with the words, “indicates” and “appears” the trial judge’s speculation trumped the well researched findings of the USMC. (Emphasis added.)

Simply stated, Judge Tallman lied about the contents of Swisher’s record which was before him. He had the evidence in the file in front of him which presented exactly the opposite of his conclusion. Yet he made a finding, “in fact,” that contradicted the result of the Marine Corp’s five month investigation and the Dowling Report.

Mrs. Jessica Fehr, Assistant United States Attorney, at closing of the trial that convicted Swisher (April 8, 2008) told the jurors, “you’ve seen the entire military record … in essence Swisher fails in everything:

“There were no 111 marines killed in a non-existent skirmish [as claimed in Swisher’s book, A Marine Remembers];

“There was no record of 39 marines being injured;

“[There was] no combat, no operation involving anyone and no notations of any injuries.”

Currently Federal Probation Officer, Mr. Doug Grove of Boise, Idaho, assigned to Swisher’s case, is recommending leniency that amounts to six or seven levels below what the U.S. Sentencing Guidelines would allow. This departure from normal permits Swisher to have home detention and an ankle bracelet without prison time. It is beyond cavil and without credibility that a 20 year and 6 month prison sentence could be reduced to 15 months of home detention.

The public is asking, what form of corruption would cause such a travesty of justice? Yet it was this same Doug Grove who, based on Swisher’s perjured testimony, recommended that David Hinkson be put away in the Solicitation case for 33 years, plus an additional 10 years in an IRS tax case, involving “Structuring” of money transactions because Hinkson’s bank did not provide a Cash Transaction Report (CTR) to the IRS when Hinkson withdrew his own currency from his own bank account to pay his employees.

After his conviction, Swisher’s date of sentencing has been repeatedly postponed. He has been out of jail on bond pending sentencing, originally set for June 26, 2008; then postponed until September 29; postponed until Oct 1, postponed until November 26th and again postponed to January 5, 2009. Given these happenings, it appears Swisher is being protected from within the Federal Government.

After his conviction and through his latest attorney, Mr. Chris A. Bugbee, Swisher asked for leniency. Letters provided by Mr. Bugbee to the court said:

Personal doctors attest to the fact that incarceration would place an extraordinary burden on Mr. Swisher … He’s approaching the end of what was once a proud life. He actually served our country in the Marine Corp but now will not he remembered for having done so honorably but rather for dishonoring the Corp that he so dearly loves … Despite his convictions Mr. Swisher has lived a long and law-abiding life. Until his arrest in this case he was well respected by friends and family and within his community.”

Mr. Bugbee, in making a case for leniency states, “Certainly the seriousness of the offenses for which he [Swisher] has been convicted should he balanced against the law-abiding life that he lived prior to his convictions: “to reflect the seriousness of the offense, to promote respect for the law, to afford adequate deterrence to criminal conduct: to protect the public from further crimes of the defendant while providing an adequate deterrence to future criminal conduct … [and] to provide just punishment for the offense.” Mr. Bugbee further advocates, “A sentence which imposes simple probation or home detention is more than adequate to do justice in this matter.” (Emphasis added.)

Note: There is significant evidence, contrary to his attorney’s assertions, that rather than Swisher having lived a law-abiding life prior to his convictions, he has been able to repeatedly avoid the consequences of his own criminal action.

B – Swisher’s Tactics, Military History and Claims of Valor

Tactics: One and a half hours before the Jury convicted him, on April 9th, Mr. Swisher filed an amended civil complaint against approximately 45 individuals, agencies or entities including the U.S. Treasury Department, National Marine Corps League, Idaho Observer Newspaper, National Personnel Records Center, Idaho State Veterans Service Program, Marine Corps General John Hagee and the U.S. Veterans Administration. Swisher is currently seeking five million dollars in civil damages against those who accused him of fraud, perjury, theft and forgery for which he now stands convicted. While on bond pending sentencing, Swisher filed yet another amended civil complaint (on June 4th, 2008) against the same parties. The fact that Swisher’s civil damage lawsuit has not been dismissed, is a further indicator that he is being protected.

Upon substitution in this case, Mr. Bugbee, current Swisher attorney, accused Brit Groom, Swisher’s former attorney and current business associate, of subverting Swisher’s defense and blocking Swisher’s ability to seek the post-conviction remedy of a new trial.

Bugbee makes an issue of the alleged loss of Swisher’s “Replacement” DD-214 and blames his former counsel, Mr. Groom. According to Swisher, Groom was the last one who had possession of his “original” carbon copy [of the phony DD-214] in late January or early February 2002. However, Swisher’s own evidence shows that he was the last one in possession of the document (that was recorded in Idaho County, Idaho on February 2, 2004 – see personal reference on the recording information to Swisher being the one who presented that document for recording to the Recorder of Idaho County). At Swisher’s trial it was established that his “Replacement” DD-214 was not authentic, and conclusively it was shown that document was forged.

Because the missing “Replacement” DD-214 was determined to be a forgery, Swisher is better off claiming it is a “lost” document rather than having it available for an inspection that would only add empirical proof of its forgery (so far, only copies exist that show Swisher being awarded medals in 1957 – i.e., medals that were not created until the 1960s and/or 1990s). The awarding of medals that did not exist at the time Swisher’s “Replacement” DD-214 was issued is strong evidence of forgery. However, the type of paper used (a comparison of the type face, etc.) could enhance the proof of forgery; which is a chance Swisher cannot take. Therefore, asserting that the document was “lost” through no fault of his own would appear to be the safest way for Swisher to hide the evidence of his forgery.

Military History: Swisher’s United States Marine Corps record shows that he served an uneventful tour of duty in the USMC from August 4, 1954, until his release from active duty on August 3, 1957. He did not receive specialized combat training necessary to participate in secret missions, or that would have qualified him to be a member of an expeditionary force (a distinction reserved to specialists such as Green Berets, Army Rangers and Navy Seals). His rank indicated he had not advanced in skill or ability.

He was subsequently discharged from the USMC Reserves on August 3, 1962, after having been court-martialed and reduced to PFC while on active duty. Swisher’s conviction of April 9, 2008 answers the question: Where is the record showing participation in active combat? It does not exist, just as the record of injuries, hospitalizations, secret missions and awards do not exist.

On October 1st, 1954, Swisher was promoted to PFC. The Record showed that on February 14, 1955, Swisher left San Diego for Japan. He was on board the USS Montrose on March 3rd, 1955, for amphibious training in Japan.

The Korean War occurred during the period from June 27, 1950 to July 27, 1953 (when the negotiated Armistice was signed). For proper accreditation of service personnel (POWs etc.) the official termination date was extended to January 31, 1955. Technically, Swisher was in the extended period of post-Korean War activity for nearly six months (although there were no hostilities during his enlistment, and his duty assignments never included Korea and he claimed no combat action during this period).

Instead, he claimed that he was in combat activity beginning in September 1955, nine months after the close of the extended period of the War. Swisher stated that he had been transferred in August 1955 to a combat unit in Korea and remained there through November 1955. He further said that on October 26, 1955, he was admitted to Third Battalion Medical Center “to do something about my broken and missing teeth” (see A Marine Remembers, page 8) supposedly sustained in a combat operation – what about shrapnel and gunshot wounds? What about hospitalization and recovery from those wounds? In his book, Swisher made the preposterous claim that he came out of the hospital the next day after being admitted and was (as a Corporal) assigned to direct maneuvers of a mock invasion. On October 29, 1955, Swisher claimed, “I was offered a position in the Marine Corps Honor Guard in Tokyo Japan.”

Theft of Valor: In the past, Swisher conveniently maintained that the exact events of his combat exploits were “top secret,” so that he could not reveal them; thus, preventing the general public from analyzing them or comparing them to other known information or records. Finally, it was Col. Dowlings team of experts that was able to negate Swisher’s claims and overcome the mystique of his feigned “secret missions.”

On December 12, 1955, Swisher’s name was on the Roster of those left behind when the rest of the Company went to Okinawa. The Records also shows that Swisher, in December 1955, went for eight days to You Kasha Japan. Swisher, in his book (A Marine Remembers, page 8), made the claim that during this time (December 21, 1955) he had been recommended for meritorious promotion to Sergeant; but no records support this contention. Moreover, this proposed promotion was inconsistent with his court-martial that occurred only 60 days later.

At Swisher’s April 2008 trial, Mr. Shaddock, U.S. expert on “Top Secret” documents from the Korean War era, said, “Swisher had had difficulty in breathing … On December 23, 1955, he was referred to the Dermatology Unit and was admitted.”

A few days later, “on January 2, 1956,” Swisher stated, “I was back from the hospital….” Two days later he fictionalized, “on January 4, 1956, a situation occurred in the grenade pits near Gotemba, Japan.” In his book, Swisher told a story about how he bravely saved lives of fellow marines. He claimed he retrieved a hand grenade after the pin was pulled [similar to the Gomer Pile story]. This supposed incident was offered by Swisher as more evidence to build his false history of heroism.

The charges contained in the indictment and Swisher’s convictions were based on allegations that he lied about participating in military action to free American POWs. Mr. Shaddock, the Government expert, testified at Swisher’s trial and said that he saw no evidence of any records about any secret activity occurring between August and September of 1955. Mr. Shaddock further said, “Had Swisher been transferred,” to a combat unit in Korea in August through November of 1955 it would have been in the [official] Record.” There was no covert military operation during September 1955 into North Korea.

Also “there was no status entry for claims [by Swisher] made as of January 31, 1956.” The official U.S. military record shows that from March 4th to May 6th, 1956, Swisher was stationed at Middle Camp Fuji and Yokosuka, Japan with no travel to Korea, no combat, no hospitalizations, no wounds from bullets or shrapnel – the recovery from which would have required hospitalization and taken months to heal.

During his tour with the Marine Corps, Swisher was eventually elevated to the rank of corporal. However, his official U.S. military record indicates that he was subject to an Article 115 disciplinary action resulting in demotion on February 28th, 1956, from Corporal to Private First Class. Swisher maintains that he “was arrested on trumped up charges and received a Summary Court Martial for drinking alcohol in a Navy corpsmen quarters.” Whatever the true reason, this stands as evidence that he was a discipline problem and not a combat hero.

Swisher’s official U.S. military record shows that from March 4th to May 6th, 1956, as stated above, rather than being assigned to a combat mission in post-War Korea (as he claimed) he continued to be stationed at Camp Fuji and Yokosuka, Japan. “Possibly in May of 1956,” Swisher admitted, “ l was sent back ‘stateside’ on a Destroyer Tender with 38 other Marines … In late August of 1956 I arrived at the Bangor Washington Naval Ammo Dump.”

On February 10, 1957, Swisher was involved in a private car accident near Port Townsend Washington. He was treated at the Naval Hospital at Bremerton, Washington. After his discharge from active duty in 1957 he remained in the USMC Reserves for the next 8 years, also without award or distinction.

C – Evidence Supporting the Verdict

Count One, Wearing unauthorized medals: Swisher claimed he was awarded the Navy and Marine Corps Commendation Medal with Bronze “V.” The Government pointed out that “a Metal Pendant was authorized for issue on March 22, 1950 (in connection with a Letter of Commendation and commendation ribbon). On September 21, 1960, the Secretary of the Navy changed the name of the award to the Navy Commendation Medal. On August 19, 1994, the Secretary of the Navy renamed the medal as the Navy and Marine Corps Commendation Medal. In other words, there was no Navy and Marine Corps Commendation Medal in 1955 when Swisher supposedly earned it and none existed when Swisher’s “Replacement” DD-214 supposedly was generated in 1957. Yet Swisher maintained that he did, in fact, receive said Medal as a part of his award in 1957 as a result of receiving multiple shrapnel and gunshot wounds in September 1955 in Korea.

He also maintained that he incurred other shrapnel wounds during a grenade training accident in January 1956 near Middle Camp Fuji Japan all of which he claims disabled him. Since hostilities had been concluded as of January 1955, by September of that year the conditions necessary to meeting the minimum standard for the award of the Purple Heart could not have been met (i.e., injury from enemy fire in combat) – because there had been no combat since January.

In reference to Swisher’s supposed 1955 combat injuries, he stated in his book, “Later upon leaving the hospital [Third 3rd Battalion Medical Center] in mid-October [1955], I received a Navy Commendation Medal and Ribbon with Bronze ‘V’ and a Silver Star medal.” He claimed that he suffered shrapnel and gunshot wounds “during the time he was in Korea.” As a result he swore that he was awarded the Purple Heart Medal and other awards for his valor.

Swisher made yet another, unsupported claim of heroism saying that in “May or June, 1957,” he managed to save the life of an armed, “possibly homicidal Marine at the Bangor Washington Naval Torpedo Station.” He claimed in his book that he would receive the Marine Corps medal (A Marine Remembers, page 22) for this act of daring and courage.

The Ninth Circuit Court of Appeals in examining the case of United States vs. David Hinkson noted that “the Navy and Marine Corps Commendation Medal which is listed in block 26 of the DD-214 [Discharge Document Form] … did not exist at the time of Mr. Swisher’s transfer to the Marine Corps Reserve in 1957.” This relates to Count Three (Forgery). Then on August 29th, 1975, Swisher applied for VA benefits, but there were no claims about any other injuries, no claims of medals, or awards, or shrapnel, or gunshot wounds and no hospitalizations supporting any of these supposed incidents, in his record.

In January 2001, after he had visited with veteran Mike Clausen, began seeking increased VA benefits. The Ninth Circuit also noted, “Other medals Swisher wore or acquired, but did not earn, were the Silver Star Medal, Navy and Marine Corps Medal (with Gold Star in lieu of the Second Award) and the Purple Heart. A Purple Heart is an award given to members of the United States military who are wounded in combat.”

The Ninth Circuit acknowledged the military findings: “[The] Marine Corps record has been carefully examined by the Military Awards Branch of the office of the Commandant of the Marine Corps, and that office has stated that his [Swisher’s] record fails to show that he was ever recommended for [or given] awards. Further review of Mr. Swisher’s records reveals that he is not entitled to any service awards including the Marine Corps Expeditionary Medal for his service in the U.S. Marine Corps. Mr. Swisher’s official military records failed to indicate any information that he served in Korea during the period when any awards were authorized. There is no information in his military record or his medical record to substantiate his entitlement to a Purple Heart medal … and that Swisher’s record does not indicate that he earned any service record or service medals during his military duty.”

Count Two, Perjury (making false statements): The charges contained in the Indictment were based on allegations that the defendant lied about serving in a covert military operation into North Korea in September 1955 to free American POWs. The evidence establishes that before putting Swisher on the stand on January 14, 2005 (in the David Hinkson trial), the government learned that the prior grand jury testimony by Swisher, about being wounded in the Korean War, was false.

Swisher submitted to the VA a letter claiming injuries to his nose (he said occurred in field maneuvers in Iwo Jima, Japan), but the letter didn’t follow the proper procedure [more evidence of forgery]. A thorough investigation revealed that Mr. Swisher forged and/or falsified those records. The National Personnel Records Center verified that the “Replacement” DD-214 was a fraud. Yet he had contacted various government agencies, showing them his “Replacement” DD-214 in an attempt to legitimize his fraud – each time he showed the “Replacement” DD-214 to another agency, it was a separate crime of presenting a forged document as if it was authentic.

In June 2004, Swisher defrauded the Veterans Administration with both his testimony and “Replacement” DD-214. Retired Marine Corps Colonel W.J. Woodring Jr. confirmed in an affidavit that Swisher's “Replacement” DD-214 was a fraud. Federal Prosecutor Jessica Fehr reminded the Jurors that Swisher’s deception had allowed him to receive $2,500 per month as disability benefits from the VA [in addition to medical benefits valued at over $100,000]. Swisher applied for VA benefits but was turned down. On June 28, 1963, a decision was made by the VA not to increase his benefits. By 2004, when he testified before the Federal Administrative Law Judge in connection with the VA, he was again seeking additional benefits–illegally.

Dennis Riordan, appellate attorney for David Hinkson, with 30 years practice (mostly in the 9th Circuit), made the following observation:

Interestingly in the midst of dealing with his claims for increased VA benefits and dealing with the appeals that resulted from the VA's denials of his claims Swisher became the Government's star witness in the case of United States v. David R. Hinkson … Swisher entered the courtroom wearing a lie on his chest, carrying others in his pocket with the fixed intention to commit perjury as soon as he took the stand. Quite simply, no impeaching evidence could be more powerful….

Certainly, there was an element of self preservation for Swisher to testify against Hinkson – showing off his “Replacement” DD-214 – in order to justify his prior false testimony before the Administrative Law Judge and for the award of VA benefits; the theory is: If you tell a lie often enough, maybe someone will believe it.

Count Three, Forgery (false DD-214): Swisher defrauded the Veterans Administration by doctoring documents. A highly qualified Security Service government specialist, Annette Amerman, with a BS Degree and certified by the Independent Forensic Association (a 3 year program) demonstrated Swisher’s fraud and forgery. She testified that Swisher’s “Replacement” DD-214 accompanying his support letter, supposedly from Woodring, was a forgery, which conclusion was supported by the Affidavit of Woodring.

In fact, Chief Warrant Officer Miller, a Liaison Officer at National Personnel Records Center, gave his Affidavit explaining that: “Military Rules and Procedures require that a DD Form 214 can only be issued and retyped at the Headquarters of the USMC and signed by a designee of the Commandant of the Marine Corps [with] offices at Headquarters.” At the time, Captain Woodring never held such designation.

However [the original] Form DD-214 had been recorded in February 2001 (at the Idaho County Recorder‘s Office) rather than February 2004. The earlier recorded Form DD-214 was identical to the later-recorded form with the notable difference that none of the medals, commendations or wounds was mentioned in the earlier recorded form.”

The Silver Star, Purple Heart and other awards were specified in the later-recorded form but “N/A” was written in box 26 in the earlier form [2001]. Also written in the later-recorded form DD-214 (in 2004), in boxes 27 and 32: “Multiple shrapnel and gunshot September 1955 Korea” and “Entitled to wear Marine Corps Expeditionary Medal.” Yet the earlier Form DD-214 contained "N/A.”

The document was a forgery – had any change been made in the discharge document it would have been done on a Form DD-215 rather than a form DD-214. Count Four, Theft (VA benefits without entitlement): The Government proved that the defendant fabricated these stories to qualify for increased VA benefits and services. Swisher came to the VA Hospital over a period of three years. He got a pacemaker and heart surgery and treatments in 2002 from the VA Hospital in Spokane, Washington. Stealing benefits reserved for honorable, deserving veterans is grand theft and despicable.

D – Swisher’s Case for Leniency

Swisher’s attorney argues that Swisher has demonstrated that it was highly unlikely he would participate in future criminal conduct. The attorney asserted, “given Swisher’s age and physical limitations Mr. Swisher requires no educational or vocational training, nor does he require correctional treatment. His medical care needs are substantially beyond normal and can best be accomplished by living at home with his spouse. Swisher requests that the Court impose an appropriate term of probation or alternatively that he be sentenced to a term of imprisonment to be served in home detention”[15 to 27 months]. The attorney even asserted that, “Justice is served by such a sentence.”

Having been convicted at his April 2008 trial, Swisher then “turned” on his two defense attorneys [Dunlap and Groom] and is now asking for a new trial. He accuses them of conspiracy to deprive him of a proper defense, denial of the opportunity to tell his story to the jury in testimony and conflict of interest because they had previously represented Mr. Hinkson.

Through his current Attorney Chris Bugbee, Swisher states that Attorney Groom told him “that the original carbon copy of the ‘reissued’ DD-214 and the original Woodring letter had inexplicably disappeared from [Groom‘s] office.” Swisher alleges that Groom and Dunlap conspired to deprive him of the right to testify in his own behalf. But on February 2, 2004, Swisher was the last one to have the “Replacement” DD-214

“Still the possibility exists,” said Mr. Bugbee, “that they [Dunlap and Groom] were truly influenced in their decision making by how their actions and how the outcome of Mr. Swisher's trial might later affect their former client, Mr. Hinkson.”

Mr. Bugbee relates that “Mr. Hinkson's supporters were transparently targeted [by Dunlap and Groom] against Mr. Swisher's interests and towards supporting Mr. Hinkson's effort to overturn his conviction.” Hinkson does not know and has never met Mr. Dunlap.

David Hinkson believes that Mr. Groom, a long time neighbor of Swisher as well as his friend and business associate, deliberately set him up for conviction.

As a counter point, Swisher now claims that Mr. Groom set Swisher up by refusing to allow him to tell Swisher’s story to the jury in his April 2008 trial. If an attorney knows that his client is lying and promotes the client testifying falsely, the attorney can be prosecuted for participation in the perjury. Obviously, Messers Groom and Dunlap knew that Swisher was lying about his military record and insisted that he had to follow their instructions when testifying, to avoid being accused of suborning perjury.

Hinkson doesn’t know and has never met Mr. Dunlap. It was well known to Swisher that Mr. Groom represented Mr. Hinkson at the same time as Swisher. Somehow, Swisher now asserts that it was Mr. Groom’s supposed loyalty to Hinkson that prevented Swisher from telling his story in the April 2008 trial. However, an objective look at the facts reveals that Mr. Groom was only protecting himself in placing restrictions on Swisher’s testimony and had nothing to do with Groom’s prior representation of Hinkson.

In the end, it was Hinkson’s trial judge who would not allow Hinkson’s passport to be admitted to disprove Swisher’s allegations of combat heroism, the effect of which was to clothe Swisher with an extra measure of credibility so that the jury would not question his bizarre account against Mr. Hinkson – neither the conduct of Messers Groom or Dunlap was of any consequence in either the Hinkson 2005 conviction or his Ninth Circuit Appeal.

At the Hinkson trial, there was only Swisher’s testimony (accusing Hinkson of supposedly offering to hire Swisher to commit murders): and without the ability to show that Swisher was a faker, instead of a decorated national war-hero, it was impossible to counteract what he was saying.

The jury believed Swisher, who admittedly has a very convincing manner. He convinced them that he was a brave war-hero who had been approached by Hinkson to kill three Federal officials. Few people would believe that a courageous, combat veteran – such as Swisher was supposed to be, who had gone on at least one expeditionary mission to save POWs in Korea – would lie under oath on the witness stand. This had nothing to do with either Groom or Dunlap.

In the end, important testimony about Swisher’s motive for lying against Hinkson was excluded; i.e., that Swisher had been blackmailing Hinkson to gain half of his lucrative WaterOz business. The testimony showed that when the extortion did not work, Swisher sued Hinkson for $522,000.00 (in the Idaho County District Court) and sought to obtain ownership of WaterOz. Again, the Judge Tallman would not admit these facts into evidence. Based solely on the uncorroborated testimony of one man – Elven Joe Swisher – David Hinkson was sentenced to 33 years in solitary confinement at the most severe penitentiary in the United States (Admax Florence, Colorado).

II – QUESTIONS
A – Has Swisher’s life been law-abiding?

Discussion

Former Idaho County Deputy Prosecutor, Attorney Wesley Hoyt, investigated Swisher’s past criminal conduct and has spoken with numerous individuals who characterized Swisher as a “liar” who can be very convincing. Mr. Hoyt points out that in the past, Swisher has been involved in numerous situations where claims of fraud have arisen. One of Swisher’s former mine-industry business associates, a person who supposedly had a secret formula for rendering gold from ore, mysteriously died in a desolate area of Idaho under suspicious circumstances with tire tracks over his body. Swisher was not charged, but ended up controlling that deceased party’s interest in the mining corporation.

In 1980, Swisher was charged with sexual molestation of all four of his daughters who had nerve enough to stand up to him and testify against him. However, Swisher tampered with the jury pool. During jury selection, fifteen prospective jurors were excused from service because they had received the so-called “Nutting” letter touting Swisher as a person who was being wronged by the molestation prosecution.

Mr. Hoyt said his investigation showed the “Nutting” letter was duplicated and mailed to a large number of the residents of the Idaho County community by Swisher and a team of helpers, including children, whom he recruited to address and stuff envelopes. This constitutes uncharged criminal conduct, involving both jury tampering and obstruction of justice. When the jury that was finally seated – most of whom were from Swisher’s small town of Cottonwood, Idaho – they were unable to decide on two of the counts of sexual molestation – and became a “hung jury.”

A new trial on the two undecided counts was never brought to court because, among other things, the prosecuting attorney, Dennis Albers (a long time associate of Swisher), had talked with one of the jurors in the hallway of the court house shortly before final deliberations. “By the time that the issue of prosecutorial misconduct was resolved and some other procedural questions were decided,” Hoyt said, “the window of opportunity for a speedy trial elapsed, and the remaining charges were dismissed on technical grounds.”

Further investigation by Mr. Hoyt, revealed that Swisher has asserted the right to a large number of mining claims. Swisher put the claims in the names of other individuals to avoid the $100 annual maintenance fee to the BLM. Under the small miner exception to the BLM law, effective in 1992, the first ten fees were waiveable upon sworn statement and application by the owner of the claim. In the early 1990’s, before the change in the law, Swisher asserted ownership of over a thousand. The fee to the BLM, over the past 15 years, could have amounted to more than a million dollars (the number of claims times claims originally held by Swisher times $100 per year).

In order to keep those claims alive so they would remain at his disposal and not become available to the public, Swisher would have been required to make yearly payments to the BLM of as much as $200,000 to $300,000 in claim maintenance fees. Rather than losing control over the claims and to avoid the fee, Swisher defeated the law by “deeded” numerous claims to other individuals in bundles of ten claims or less each. Thus, the supposed new “owner” would sign a Maintenance Fee Waiver form (under oath) stating that they were the owner of the claims in question and were entitled to exemption from the fees. By spreading “ownership” to numerous individuals, Swisher has been able to avoid paying a large sum to the government and still retain tacit control over the claims. Mr. Hoyt said:

My investigation reveals that Swisher would file with the BLM in Boise, Idaho, a large number of Waiver forms each year purportedly signed by some other individuals as if those persons were the owners of the mining claims. In some cases, those supposed owners of the mining claims were shown to be fictitious persons or involve a fictitious address. Of those claim-owners who existed, some said that the signature on the Waiver form was not theirs, and they had not authorized anyone to sign a form for them.

To understand how Swisher’s method of operation worked, he transferred claims to other people, such as Ron Miller of Idaho County, Idaho. Mr. Miller stated that when he informed Swisher that he was going to do some prospecting on one of the claims listed in his name, Miller was told by Swisher, ‘Don’t go there.’

Restricting access to a mining claim is one of the incidents of ownership and should be considered a badge of fraud with reference to the BLM, for individuals such as Miller, who believed he was the true owner of the claim as stated in the BLM annual Maintenance Waiver form were prevented from exercising the property rights of an owner by Swisher.

Swisher also used the assistance of his wife, Barbara, an Idaho State Notary over the past 15 years to help him perfect claims that had been relinquished to the public domain by individuals who did not want their names associated with mining claims. Whenever the BLM would point out that the person named by Swisher as the owner was no longer interested in owing the claim (and had signed a relinquishment of the claim over to the BLM to be placed in the public domain) Swisher would produce a deed, predating the newly obtained relinquishment form, showing that said claim(s) had been deeded to someone other than the named owner – thus defeating the relinquishment. Without a budget for an investigation, the BLM had no choice but to accept those deeds as if they were authentic.

While the above is circumstantial evidence of fraud, some of the papers filed by Swisher were Maintenance Fee Waiver forms with forged signatures. Two people from Swisher’s September 2, 2008, submission to the BLM contained affidavits where the signature on the form is not theirs and they did not give their permission to anyone to sign for them. So far, some of the Idaho addresses have been determined to be at a location on which there is no residence, and the people named in other Waiver Forms did not exist (no driver’s license or other identification in Idaho).

Other accusations which have surfaced due to this investigation of Swisher’s past behavior are significant. Based upon reliable statements obtained by Mr. Hoyt, he said: “In the past, Swisher ‘booby trapped’ one of his own mines with explosives to keep his business partners out. The Lewiston office of the BATF was called, and they also found WWII ordinances buried in Swisher’s mine. The idea may have been to scare off another mining partner, so that no further prospecting would occur in said mine.”

From the above investigation it cannot be said that Swisher had lived a law-abiding life.

B – Were the theft and stolen valor crimes committed by Mr. Swisher and for which he was convicted on April 9, 2008, of such a nature that he should receive virtually no punishment? Or should he be punished to the maximum allowable, including upward departure, especially if he committed other, additional criminal acts while on pre-trial release?

Discussion

Swisher now attempts to avoid punishment by accusing his former attorneys, Dunlap and Groom, of conspiring to sacrifice him to help David Hinkson. The 9th Circuit Appellate Court concluded that “Hinkson’s conviction substantially rests upon the testimony of a witness [Swisher] who had been conclusively shown by the time Hinkson moved for a new trial to be a forger and a liar.”

Now Mr. Bugbee implores the Court to grant Mr. Swisher a new trial and/or a minimum sentence. He solicits bare minimum punishment stating, “Despite his convictions Mr. Swisher has lived a long and law-abiding life. Until his arrest on this case he was well respected by friends and family and within his community,” and therefore requests downward departure [a reduction of the penal recommended guidelines].

In a deposition taken October 1, 2008, Swisher blames others for his conviction instead of taking responsibility for his own criminal acts. Mr. Hoyt believes that downward departure would be a travesty of justice. In fact, he believes that since Swisher used perjury to destroy the life of David Hinkson [who was given upward departure of 3 extra years plus 30 years based on Swisher’s testimony] so that the same measure should be applied to Swisher. Otherwise, consider the impact Swisher could have if he was allowed to return home with an ankle bracelet and be able to do paperwork on his mining claims.

III – CONCLUSION

Swisher was rightfully convicted of the four charges based on extensive evidence presented by the federal government. Justice was served when he was, in fact, finally convicted in 2008 of forgery, perjury and stealing thousands of dollars in benefits belonging to legitimate veterans and the taxpayers. Convicted or not, during his life Swisher has escaped the punishment for other crimes he has committed.

So many people have lost faith in our justice system in America and ask, how could the non-violent David Hinkson be convicted upon the sole testimony of a known liar such as Elven Joe Swisher and sent to prison for 33 years in solitary confinement while this blackmailing, lying, false accuser gets a slap on the wrist – and sent home to be with his wife to work on his documents for his gold mine claims? Is justice blind or is the system just corrupt?

In the judicial context “impartiality” means the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. It guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. Judges must not be biased and they must hold themselves above even the appearance of wrongdoing.

Swisher, even at this late time in his life, should not be able to elicit sympathy. He continues to be incorrigible and a threat to society with his history of multiple deceptions (including fraud on the court as with the Nutting letter). Therefore, the evidence in Swisher’s criminal conviction supports a sentence of the maximum length possible under the law plus an upward departure should be added for crimes of fraud against the BLM committed during pretrial/pre-sentence release.