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United States of America v. Elven Joe Swisher

April 10, 2011


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



Pending before the Court are Movant Elven Joe Swisher's ("Swisher") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1) and Renewed Motion Under 28 U.S.C. § 2255 (Dkt. 18). Having reviewed the Motions, the Government's Response (Dkt. 11), Swisher's Reply (Dkt. 13),*fn1 and the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion and the Renewed § 2255 Motion.*fn2


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, M. Lynn Dunlap ("Dunlap") and Britt Groom ("Groom") had an actual conflict of interest arising out of their former representation of an individual by the name of David Hinkson ("Hinkson") and that their performance was deficient in several other respects unrelated to the alleged conflict of interest. The Court recently denied Swisher's Motion for Discovery (Dkt. 14). See Order (Dkt. 17).

In its Order denying discovery, the Court briefly summarized the background of this case. However, a more detailed statement of facts is warranted here due to the unusual circumstances leading up to Swisher's prosecution and his numerous allegations of ineffective assistance of counsel.

1. Pre-Indictment

Swisher served with the United States Marine Corps on active duty from August 4, 1954 until August 3, 1957 when he was discharged into the reserves as evidenced by a DD-214 form signed by his personnel officer, Captain W. J. Woodring ("Woodring"). The boxes on the form for indicating any medals, awards, or commendations and for indicating any wounds received in combat were each marked "N/A." See Resp., Ex. A, Dkt. 11-1.

In 1958, Swisher applied for and received benefits from the Veteran's Administration ("VA") for certain service-connected injuries. Over forty years later, in 2001, he applied for benefits for Post Traumatic Stress Disorder ("PTSD"). He claimed his PTSD arose from his participation and injuries received in a secret combat mission rescuing prisoners of war held in North Korea in August or September of 1955 while he was stationed at Middle Camp Fuji, Japan. The VA denied his claim because there was no record that the mission ever occurred.

In 2003, Swisher appealed the denial of his benefits. He supported his claim with a photocopy of a "replacement" DD-214 form -- accompanied by a letter dated October 15, 1957 that appeared to be from Woodring -- indicating 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 and that he was entitled to wear the Marine Corps Expeditionary Medal. See Resp., Ex. C, Dkt. 11-2. The replacement DD-214 further indicated that Swisher had received multiple shrapnel and gunshot wounds in September of 1955 in Korea. Id. In support of Swisher's claim, Groom submitted affidavits to the VA stating that he had seen the documents and believed them to be authentic based on his experience as a Naval Intelligence Specialist with operational designation. The VA thereafter granted Swisher disability benefits for PTSD while also sending the documents to Headquarters Marine Corps to be authenticated.

During approximately the same time period, Swisher was 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-SRCT. 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). During his testimony, Swisher wore what appeared to be a Purple Heart.

After cross examining Swisher during the Hinkson trial, defense counsel Wesley Hoyt presented to the Court a recently received letter from the National Personnel Records Center ("NPRC") stating that Swisher's official military record did not indicate that he had been in combat or awarded any medals. Hinkson, 585 F.3d at 1254. Judge Tallman allowed counsel to re-open cross examination to question Swisher regarding the Purple Heart he was wearing. Id. After Swisher testified that he had received it following a post-Korean War classified mission to free prisoners of war, counsel challenged Swisher with the NPRC letter. At that point, Swisher produced the replacement DD-214 which indicated he not only had been awarded the Purple Heart but also several other medals. After denying counsel's motion for a mistrial, Judge Tallman instructed the jury to disregard the testimony about the Purple Heart.

Before the trial ended, the Court received, pursuant to subpoena, a certified copy of Swisher's complete military file. The Government also presented a letter from Lt. Col. K.G. Dowling of the National Personnel Management Support Branch of the United States Marine Corps questioning the authenticity of both the replacement DD-214 and accompanying letter from Woodring. The Dowling letter stated that Swisher had neither been in combat nor been awarded medals. Judge Tallman excluded both the letter and the file from evidence on the ground in part that they were "unauthenticated and facially inconclusive" as to whether Swisher lied about his combat experience. Id. at 1256. Hinkson was convicted of three counts of solicitation to commit a crime of violence in violation of 18 U.S.C. § 373.

Based on the doubt shed on Swisher's combat-related claims during the Hinkson trial, the VA investigated further and was advised by the Marine Corps that the replacement DD-214 was not authentic. The VA then terminated his benefits for PTSD. The Government subsequently sought an indictment against Swisher.

2. Indictment, Discovery, and Trial

A. Indictment

Swisher was charged in a four-count Indictment with (1) wearing unauthorized military medals in violation of 18 U.S.C. § 704(a) including the Purple Heart, Silver Star Medal, Navy and Marine Corps Medal (Gold Star in lieu of the Second Award), and Marine Corps Commendation Medal with Combat "V;" (2) making false statements in violation of 18 U.S.C. § 1001(a)(2) to the VA that he was involved in combat operations, was awarded those medals, and suffered from resulting PTSD in order to obtain additional benefits; (3) making false statements in violation of 18 U.S.C. § 1001(a)(3) by using a forged, counterfeit, or falsely altered certificate of discharge from the United States Marine Corps in support of those claims; and (4) and theft of government funds in violation of 18 U.S.C. § 641 by effectively stealing disability benefits from the VA by presenting false testimony and using a forged DD-214 form to secure a higher disability rating and increased benefits. Indictment, Dkt. 1.

B. Discovery

Although the Court initially appointed counsel, Swisher subsequently retained Dunlap who thereafter 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.

In conjunction with a third Motion to Continue, Dunlap filed a Motion to Compel seeking an order from the Court for the Government to produce copies of the following documents: (1) all DD-214s issued by Woodring during his tenure at Bangor, Bremerton Naval Station;*fn3 (2) all records pertaining to an incident at Bangor involving an individual with an M-1 on the roof of the barracks threatening to shoot people; (3) the Inspector General's travel itineraries during the period of time of Swisher's alleged court martial in 1956; (4) documents from the Redline Brig in Middle Camp, Fuji, Japan during the time Swisher was incarcerated as Prisoner No. 21 for three days; (5) documents pertaining to injuries he suffered at Middle Camp, Fuji, Japan, including medical day log, incident reports, and grenade range training logs; and (6) documents relating to correspondence of General Graves B. Erskine, Special Operations Commander in 1954 and 1955, regarding the POW situation in North Korea, his military biography, his correspondence with Lt. Col. Marshall (Base Commander), his correspondence with Middle Camp or South Camp, his travel itineraries, and the visitor's log for Middle Camp. Aff. in Supp. of Mot. to Compel, Dkt. 30. According to Swisher, General Erskine was responsible for and in charge of all clandestine or classified military operations in the Korean theater in 1955. Id. at 6-7.

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. Finally, the Government argued that it was not required to respond further to the discovery requests since the United States Marine Corps is not part of the "government" for purposes of criminal prosecution.*fn4 Id. at 3-4. Swisher's counsel waived further briefing on the Motion to Compel. Reply to Resp., Dkt. 33.

The Court denied the third Motion to Continue the trial as well as the Motion to Compel finding that the Government had met its duties under Rule 16 and Brady. Mem. Dec. and Order, Dkt. 41. Just before trial, Groom associated with Dunlap. Notice of Association of Counsel, Dkt. 45.

C. Trial

In resolution of the Government's Motion in Limine, the parties stipulated that no testimony or evidence would be presented at trial regarding Swisher's participation in the Hinkson trial or the nature of the charges therein. Second Motion in Limine, Dkt. 25; Stipulation, Dkt. 50.

During the course of the trial itself, the parties stipulated that Woodring would have testified that he did not remember anything from the year 1957. Second Trial Stipulation, Dkt. 59. The trial lasted five days during which the Government called six witnesses and the defense called ten, including Swisher. Mins., Dkts. 55, 57, and 58. The jury found Swisher guilty of all four counts of the Indictment. Special Verdict,Dkt. 66.

3. Post Trial and Sentencing

Approximately six weeks after the verdict, Swisher discharged Dunlap and Groom and retained Christopher Bugbee. Notice of Substitution of Counsel, Dkt. 67. On Bugbee's motion, the Court continued the time for objecting to the Presentence Report and the sentencing itself. Order, Dkt. 69. After filing his objections, Bugbee moved for a new trial based on most of the same allegations that are contained in the § 2255 Motion. Mot. for New Trial, Dkt. 74. The Government contended, and the Court found, that Swisher's motion was untimely. Mem. Dec. and Order,Dkt. 85.

On January 5, 2009, the Court held a sentencing hearing at which it sustained Swisher's objection to the obstruction of justice enhancement recommended in the Presentence Report. The resulting total offense level of 15, with a criminal history category of I, yielded a guideline range of 15 to 21 months. The Court thereafter rejected the Probation Officer's and Swisher's recommendations of probation and sentenced Swisher to a term of imprisonment of 12 months and one day with a term of supervised release of three years to follow. Judgment, Dkt. 101. The Court imposed a below guideline sentence based on a balance between Swisher's myriad of health issues and the need for general deterrence. Sent. Tr. at 119-21.

4. Appeal and § 2255 Motion

Swisher filed a timely Notice of Appeal (Dkt. 103). In the meantime, the parties litigated the restitution amount still owed to the VA which the Court had left open at the time of sentencing. The Court denied Swisher's Motion for Release Pending Appeal (Dkt. 95). Order, Dkt. 116. A few weeks later, Swisher filed the pending pro se § 2255 Motion which the Court stayed until either dismissal or resolution of the appeal. Order, Dkt. 8. The Court subsequently determined that the amount of restitution Swisher still owed to the VA of the original $98,000 paid in benefits was $68,154. Restitution Order, Dkt. 131; Am. J., Dkt. 135.

On appeal, Swisher argued that the Government's failure to timely disclose a rebuttal witness denied him a fair trial, that the Court demonstrated bias by conveying a negative view of defense counsel to the jury, that the appearance of one of his witnesses by telephone violated his rights under the Confrontation Clause, that the cumulative effect of errors warranted reversal, and that he received ineffective assistance of counsel. The Ninth Circuit rejected all except the ineffective assistance of counsel claim. United States v. Swisher, 360 Fed. Appx. 784 (9th Cir. 2009). It declined to review this claim noting that Swisher had raised the same claims in his then-stayed pro se § 2255 Motion.


1. Legal Standard

A. 28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."

If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."

The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.

If the Court does not dismiss the proceeding, the Court then proceeds to a determination under Rule 8 of whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

B. Ineffective Assistance of Counsel

The well-established two-prong test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).

In order to establish deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance." Id. at 689. This is so because for the defendant, "[i]t is all too tempting . . . to second-guess counsel's assistance after conviction or adverse sentence. . . ." Id. For the court, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).

In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (noting that the court should "assess counsel's overall performance throughout the case" when evaluating whether his assistance was reasonable).

Both prongs of the Strickland test must be met "before it can be said that a conviction (or sentence) 'resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable' and thus in violation of the Sixth Amendment." United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687).

When the ineffective assistance of counsel claim is based on conflict of interest, however, a defendant need not demonstrate prejudice if he demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected counsel's performance. Cuyler v. Sullivan, 466 U.S. 335, 350 (1980) (addressing a joint representation situation). However, the adverse effect element "remains a substantial hurdle" to relief. Maiden v. Bunnell, 35 F.3d 477, 481 (9th Cir. 1994).

The word "conflict" refers not to types of antagonistic relationships but rather to "legal conflicts of interest -- an incompatibility between the interests of two of a lawyer's clients, or between the lawyer's own private interest and those of the client." Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc) (citation omitted) (rejecting subjective belief that counsel was not acting in his best interest as a basis for finding ineffective assistance of counsel). Stated another way, "'actual conflict' is a term of art defined by reference not to the nature of the alleged conflict itself, but to the effect of the conflict on the attorney's ability to advocate effectively." United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citing Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002)). The mere possibility of or speculation regarding a conflict of interest is not sufficient grounds for challenging a conviction. Sullivan, 446 U.S. at 350. See also Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995); Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994); United States v. Allen, 831 F.2d 1487, 1495 (9th Cir. 1987). If there is only a possibility of conflict, Strickland's performance and prejudice standard applies and prejudice is not presumed. United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998).

2. Analysis

The Court will discuss Swisher's conflict of interest claims first under Sullivan and then under Strickland. It will then conduct a Strickland analysis of Swisher's remaining ineffective assistance of counsel claims that are not alleged to have resulted from a conflict of interest.

A. Conflict of Interest Claim and Relevant Facts

Swisher contends that both Dunlap and Groom acted in Hinkson's interests, that his (Swisher's) conviction led to Hinkson's being granted a new trial,*fn5 and that some of counsel's decisions evidenced the conflict. Notably, Swisher was well aware that both counsel had previously represented Hinkson. It is also apparent from the allegations in his then pending civil suit that he was concerned at the time that Hinkson's father was seeking to discredit him by spearheading investigations at the VA and the Marine Corps League regarding his claims of valor.*fn6 Nevertheless, Swisher sought to retain Groom, subsequently retained Dunlap, and ultimately consented to retaining Groom as co-counsel.

A chronological summary of Groom's and Dunlap's representation of Hinkson and Swisher is necessary to an analysis of Swisher's conflict of interest claims. Each attorney has submitted an affidavit in support of the Government's Response to the § 2255 Motion. Swisher did not submit an affidavit with his Reply controverting any statements in those affidavits.

1. Groom and Dunlap were law partners between 1999-2000. Groom Aff. ¶ 3.

2. 1999 -- Groom introduced Swisher to Hinkson in his law office where both were clients.Groom Aff. ¶ 5.

3. 2001 -- Groom represented Hinkson's father in a criminal case in Colorado. Groom Aff. ¶ 4.

4. 2002 to November of 2003 -- Groom represented Hinkson after he was arrested on federal tax charges until he withdrew from representation after Hinkson refused to speak with him or aid in his defense. Groom asked Dunlap to visit Hinkson in jail to see ...

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