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United States of America v. Elven Joe Swisher

February 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT,
v.
ELVEN JOE SWISHER, DEFENDANT-MOVANT.



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

ORDER

INTRODUCTION

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.

BACKGROUND

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 See United States v. David Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009), reh'g denied and dissent vacated and superseded, 611 F.3d 1098 (9th Cir. 2010).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 ยง 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 ...


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