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United States of America v. Elven Joe Swisher


February 13, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Pending before the Court is Movant Elven Joe Swisher's ("Swisher") Motion to Permit Discovery (Dkt. 14). Having reviewed the Motion, the Government's Response (Dkt. 15), Swisher's Reply (Dkt. 16),*fn1 and the underlying criminal record, the Court enters the following Order denying the Motion for Discovery.


The facts underlying this case are extremely complex. The Court will only briefly summarize those necessary to resolve the discovery motion.

Swisher sought benefits from the Veteran's Administration ("VA") claiming that he suffered from post traumatic stress syndrome ("PTSD") arising out of his Marine Corps experience in a secret mission rescuing American prisoners of war after the end of the Korean War. He further claimed that he was awarded the Purple Heart and other medals and citations based on this combat experience and resulting wounds. The VA awarded benefits based on documentation Swisher supplied.

Swisher subsequently testified as 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-S-RCT. 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 See United States v. David Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009), reh'g denied and dissent vacated and superseded, 611 F.3d 1098 (9th Cir. 2010). Hinkson was convicted of the charges.

Questions arose during Swisher's testimony regarding his claims of valor and entitlement to wear the Purple Heart and other medals. Following the trial, the Government instituted an investigation into Swisher's claims.

The Government charged Swisher in a four-count Indictment with (1) wearing various unauthorized military medals; (2) two counts of making false statements to the VA supported by a forged, counterfeit, or falsely altered certificate of discharge from the United States Marine Corps; and (3) theft of government funds by effectively stealing disability benefits for PTSD from the VA based on those false statements. Indictment, Dkt. 1.

Swisher retained M. Lynn Dunlap ("Dunlap") and, as trial neared, Britt Groom ("Groom") as well. Shortly after his appearance, Dunlap 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.

Dunlap eventually filed a Motion to Compel seeking an order from the Court directing the Government to produce copies of numerous documents and records dating back to 1954 pertaining to Swisher's military service. Aff. in Supp. of Mot. to Compel, Dkt. 30. 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. at 2.

The Government advised that it had also requested documents from Headquarters United States Marine Corps Correspondence Section, National Personnel Records Center, the Military Archives Branch of the Commandant of the Marine Corps, the Marine Corps History Division, and the National Archives in response to Swisher's requests. Id. at 2-3. Those agencies forwarded "even tangentially related documentation." Id. at 3.

The Court denied the Motion to Compel finding that the Government had met its duties under Rule 16 and Brady. Mem. Dec. and Order, Dkt. 41. Following a jury trial, Swisher was convicted of all counts. Special Verdict, Dkt. 66. The Ninth Circuit affirmed his convictions.

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, Dunlap and Groom, had an actual conflict of interest arising out of their former representation of Hinkson and that their performance was deficient in several other respects unrelated to the alleged conflict of interest.


1. Legal Standard

Unlike the usual civil litigant,a habeas petitioner is not entitled to broad discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997) (addressing the substantially similar Rule 6(a) of the Rules Governing Section 2254 proceedings). See also Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993) ("[T]here is simply no federal right, constitutional or otherwise, to discovery in habeas proceedings . . . ."). However, "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practice and principles of law." Rule 6 (a) of Rules Governing Section 2255 Proceedings ("2255 Rules") (emphasis added). Good cause exists when there is "reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief." Bracy, at 908-09.

Rule 6 requires that the party seeking leave of court provide reasons for the request together with any proposed interrogatories, requests for admissions, or document requests. 2255 Rule 6(b).Doing so enables the Court to evaluate whether the discovery would lend support to adequately articulated claims involving specific factual allegations. Discovery is not to be used for "fishing expeditions to investigate mere speculation" or for a prisoner to "explore [his] case in search of its existence." Calderon v.U.S. District Court (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996) (citations omitted). See also United States v. Finkel, 165 Fed. Appx. 531 (9th Cir. 2006). Indeed, rather than facilitating a fishing expedition, "[h]abeas is an important safeguard whose goal is to correct real and obvious wrongs." Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999).

2. Request

Swisher's discovery motion is divided into (1) proposed interrogatories, requests for production of documents, and requests for admissions directed to Roland Hinkson (David Hinkson's father), Gary Stone (former Marine Corps League investigator), Wesley Hoyt (counsel for David Hinkson), and C.W.O. Miller (former military officer) in support of his conflict of interest claim,*fn2 and (2) a request for subpoenas to various agencies and entities in support of his remaining claims.

3. Analysis

Swisher has complied with Rule 6 in that he has stated his reasons for requesting the discovery and has included his proposed discovery requests. However, the Court cannot find good cause for granting the discovery requests to further his claims of conflict of interest and ineffective assistance of counsel.

A. Conflict of Interest

Swisher essentially alleges that Dunlap and Groom were more interested in assisting the Hinkson family and attorney bolster Hinkson's chances of obtaining a new trial than they were in defending him. He expects to prove this claim by demonstrating ties between counsel and the individuals seeking to discredit him on behalf of Hinkson supporters.

Swisher's requests directed to each of the four named individuals in support of this claim are expansive in scope. He requests the identities of anyone known to them who had any contact with trial counsel at any time since 2001, any contact each had with others regarding him since 2004, and any person known to them who has any knowledge of facts related to his case.*fn3 He also requests supporting documentation from those individuals and admissions from each of the four that they had contacts with the VA, Marine Corps, Marine Corps League, or U.S. Attorney's Office regarding him.

Under the Federal Rules of Civil Procedure, a party "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b). A party may serve interrogatories, requests for production of documents, or requests for admissions on any other party subject to the limitations of the rules pertaining to each. Fed. R. Civ. P. 33, 34, and 36. Requests for discovery directed to a prosecutor, investigator, probation officer, or defense counsel may perhaps be appropriate in a § 2255 proceeding. However, Swisher has not cited any authority for discovery requests directed to individuals who are not only not parties but who are unrelated to the underlying criminal action.

B. Ineffective Assistance of Counsel

In support of his non-conflict of interest ineffective assistance of counsel claims, Swisher requests that he be permitted to subpoena eight entities for documents and correspondence pertaining to him and to others serving with him in military operations during calendar years 1954 through 1957. The various entities are (1) Bremerton, Washington Naval Station for Bangor Torpedo Station; (2) U.S. Naval Hospital, Yokuska, Japan; (3) Naval Air Station, Atsugi, Japan; (4) Middle Camp Fuji and Gotemba, Japan; (5) National Archives, Washington, D.C.; (6) Department of Defense, Washington, D.C.; (7) Department of Navy, Office of the Judge Advocate General, Washington, D.C.; and (8) Middle Camp Fuji, Japan.

Swisher contends his attorneys should have requested the medical records, day logs, tower flight logs, motor pool daily logs, travel itineraries of General Erskine, documents pertaining to troop movements of his Battalion, documents of General Erskine regarding the POW situation in North Korea, and many other similar documents.*fn4

Implicit in his argument is that had counsel made these requests, there would have been evidence that there was indeed a top secret mission in North Korea to free POWs, that he participated in the mission, that he was treated at the hospital for wounds sustained in the mission for which he was subsequently awarded medals, and that by failing to discover them, counsel's representation was deficient.

The record reflects that the Government turned over all available documents and introduced at trial much of what Swisher now seeks in his discovery request, including medical records, clinical record consultation sheets, unit diaries, unit rosters, and an expeditions-engagement-combat record. None referred to any battles or rescue missions in Korea, to any combat injuries sustained by Swisher, or to medals earned by Swisher. See Def.'s Amended Exhibit List, Dkt. 64; Pl.'s Exhibit List, Dkt. 65.

Swisher's request is a classic fishing expedition not unlike that of a defendant's in a § 2254 case who also sought numerous discovery subpoenas. There, the court found that the petitioner was seeking "to justify this broad discovery by describing an array of claims of ineffective assistance of counsel." Sherman v. McDaniel, 333 F.Supp. 2d 960, 973 (D.Nev. 2004). The court concluded:

For the most part, at the heart of these claims, petitioner essentially asserts that his trial counsel unreasonably failed to seek the discovery that petitioner seeks now. If not more than that were required for a showing of good cause under Bracy, habeas petitioners would have a free pass to conduct any discovery remotely related to their case.

Id. at 974-75.

Similarly, here, such expansive discovery in the face of repeated indications in the underlying criminal action that no documentary evidence exists to support Swisher's claims is clearly not contemplated by Rule 6.

4. Conclusion

Further discovery is simply not warranted in the face of the overwhelming odds against Swisher's finding support for his claim.*fn5 Indeed, it is unlikely that the military bases and hospital retain records at their location for over fifty years.

Had there been no inquiry at all or only minimal inquiry into records supporting his defense in the criminal case, the Court might be inclined to grant a portion of Swisher's motion. However, when all evidence points to the fact that there was no secret mission, much less that Swisher was involved in it, and no evidence that he was wounded in combat, the Court will deny the motion in its entirety on the grounds that Swisher has not demonstrated the good cause required by Rule 6. Obviously, if documents existed proving Swisher's claims, he would be vindicated. However, the chances are so remote that they exist, the Court will not exercise its discretion to order the requested discovery.


IT IS ORDERED that Movant's Motion to Permit Discovery (Dkt. 14) is DENIED.

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