UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
April 10, 2011
UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT,
ELVEN JOE SWISHER, DEFENDANT-MOVANT.
The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
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.
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
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.
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.
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.
REVIEW OF § 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).
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
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 if he could resolve the communication issues. Groom Aff. ¶ 6.
5. September or October 2003 -- Dunlap, at Groom's request, met with Hinkson in jail for approximately 45 minutes. He provided limited legal services to Hinkson. Within 60 days, a dispute arose and Dunlap ceased his involvement. He has had no contact with Hinkson since that time. Dunlap Aff. ¶¶ 4, 6. (A review of the docket in the tax case, United States v. Hinkson, CR-02-142-C-RCT reveals that Dunlap never formally appeared on Hinkson's behalf.)
6. 2004-2005 -- Neither Dunlap nor Groom represented, consulted with, or in any way assisted Hinkson in the murder-for-hire case (Case No. CR-04-127-S-RCT) in which Swisher testified. Groom Aff. ¶ 7; Dunlap Aff. ¶ 7. (The Court also notes that neither counsel represented Hinkson on appeal.)
7. 2004 -- Swisher contacted Groom regarding a civil lawsuit he wanted to file against the Marine Corps League, the VA, the VA-OIG, the Marine Corps, the Hinksons, and numerous other named and unnamed individuals. Groom Aff. ¶ 8.
8. 2004 -- Groom advised Swisher that he could not represent him in the civil lawsuit because he had previously represented two of the parties Swisher intended to name -- David and Roland Hinkson. Groom referred him to Dunlap. Groom Aff. ¶ 9.
9. 2005 -- Swisher contacted Dunlap regarding the civil lawsuit referred to above at Groom's suggestion. Dunlap advised that he would be willing to consult but not be attorney of record. Dunlap Aff. ¶¶ 8, 9. (The Court notes that Swisher appeared pro se in that civil suit, CV-06-338-S-EJL.)
10. Dunlap advised Swisher that he had met with Hinkson once in his criminal tax case for about 45 minutes. Because Hinkson had refused to pay for his services, Dunlap did no further work for him. Swisher was not concerned about the prior representation and requested that Dunlap continue to assist him in the civil case. Dunlap Aff. ¶ 10.
11. Swisher discussed his belief that he was being "persecuted" by Hinkson and his family in revenge for testifying against Hinkson in the murder-for-hire case and his belief that they were behind the VA investigation into his eligibility for benefits. Dunlap Aff. ¶ 11.
12. 2005 -- Groom continued to assist Swisher "in his struggle with the VA to obtain additional benefits related to his reported combat experiences." Groom signed two affidavits in support of Swisher. Groom Aff. ¶ 10.
13. 2005 -- Groom's first affidavit submitted to the VA explained that Swisher had brought an envelope to his office for safekeeping that contained what appeared to be an original letter from Woodring to Swisher with a carbon copy of a replacement DD-214 signed by Woodring. Groom Aff. ¶ 11. However, he had not seen the documents since sometime after March of 2005. Id. The second affidavit responded to affidavits submitted by the "Hinkson defense team" from Woodring and Miller challenging the veracity of Swisher's combat story. Groom Aff. ¶ 13.
14. April 2006 -- Groom authored a letter of introduction to prospective counsel for Swisher after Swisher again stated following his testimony in the murder-for-hire case that he wished to file the lawsuit referred to above. Groom told him just as he had in 2004, that he could not represent him because he had previously represented the Hinksons whom Swisher had intended to name as defendants. Groom Aff. ¶ 14.
15. August of 2007 -- After Swisher's indictment, Groom referred him to Dunlap again because of Dunlap's criminal defense experience and because Groom was no longer living in Idaho. Groom Aff. ¶ 15.
16. August of 2007 -- Dunlap met with Swisher to discuss potential terms of representation in the criminal matter. Dunlap advised Swisher that he was considered one of five good criminal defense attorneys in the Magic Valley area. Dunlap Aff. ¶¶ 12, 13.
17. August of 2007 -- Swisher agreed that Groom would act as co-counsel in trial preparation because of the number of documents and expected legal issues. Groom Aff. ¶ 16; Dunlap Aff. ¶ 14. However, it was undecided until shortly before trial whether Groom would testify or act as co-trial counsel. Groom Aff. ¶ 16; Dunlap Aff. ¶ 16.
(1) Conflict of Interest
The above chronology derived from counsel's unrebutted affidavits demonstrates that neither Groom nor Dunlap had represented Hinkson since 2003. Swisher was indicted in 2007. Therefore, the Court is presented with a case of successive representation rather than concurrent representation. Although the Supreme Court has left open the question of whether a showing a prejudice is required in successive representation cases, the Ninth Circuit has held that prejudice is presumed in certain cases of successive representation. See Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008) (citations omitted).
In cases of successive representation, it is more difficult to demonstrate that counsel actively represented conflicting interests. Sanders, 21 F.3d at 1453. A different standard applies. Id. Conflicts may arise in successive representation cases "if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties." Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988) (citations omitted) (finding no actual conflict where counsel represented first client in an arraignment in an unrelated case and in the current case only in an arraignment and lineup that did not involve any privileged communication). See also Schomig, 533 F.3d at 1081 (noting conflicts can arise from successive representation particularly when there is a substantial relationship between the cases involving similar or related factual contexts).
Applying the Mannhalt and Schomig standards, it is obvious that Swisher's case was factually unrelated to Hinkson's tax case, and there is no indication that counsel divulged any of Hinkson's privileged communications or needed to do so to defend Swisher. Less obvious is whether counsel "otherwise" divided their loyalties. Swisher, of course, believes that they did so in order to assist the Hinkson family in their quest to secure a reversal of Hinkson's conviction. As shown below, however, even if the Court were to assume that counsel's loyalties were divided, Swisher has not shown a resulting adverse effect on their representation resulting in an actual conflict of interest. Mickens v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002) (actual conflict of interest is not separate and apart from adverse effect).
(2) Adverse Effect
The "adverse effect in the Cuyler [Sullivan] sense must be one that
significantly worsens counsel's representation of a client." United
States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995).*fn7
A conflict that causes some problems with the attorney-client
relationship, such as "transient feelings of mistrust," but has no
significant effect on representation is not an "adverse effect" in the
Cuyler [Sullivan] sense. Id. at 1535-36.
To establish an adverse effect, a defendant must show that his attorney chose "between possible alternative courses of action that impermissibly favored an interest in competition with those of his client." Washington v. Lampert, 422 F.3d 864, 873 (9th Cir. 2005). Stated another way, he must demonstrate "that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." United States v. Wells, 394 F.3d 725, 733 (9th cir. 2005) (internal quotation marks omitted).
As the Eighth Circuit recently explained,
The effect must be actual and demonstrable, causing the attorney to choose to engage or not to engage in particular conduct. To make such a showing, the defendant must "identify a plausible alternative defense strategy or tactic that defense counsel might have pursued, show that the alternative strategy was objectively reasonable under the facts of the case, and establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict."
Noe v. United States, 601 F.3d 784, 790 (8th Cir. 2010) (citations omitted).
In determining whether a defendant has made the requisite showing, "the court itself must examine the record to discern whether the attorney's behavior seems to have been influenced by the suggested conflict." Sanders, 21 F.3d at 1452.
An examination of the record as dictated by Sanders reveals no decisions influenced by any conflict with the Hinksons. To the contrary, Swisher has not advanced any plausible alternative strategies that were objectively reasonable under the circumstances of this case.
Swisher contends that counsel's conflict adversely affected their performance in several ways most notably as evidenced by the following:
1. Denial of right to testify and threat to abandon if he did so.
2. Withholding of evidence which would have resulted in acquittal such as Groom's testimony, affidavits about the original documents, and stipulating that Woodring not be called.
3. Groom's refusal to testify on his behalf although he testified as a defense witness for Hinkson.
4. Seating a special forces soldier on the jury over his objection.
If Swisher cannot show that counsel's decisions were influenced by or linked to the alleged conflict, then the claims must be analyzed under the Strickland standard.
(a) Denial of Right to Testify and Threat to Abandon
Swisher contends that counsel denied him his right to testify regarding his military experiences and threatened to "walk out" on him if he attempted to testify. He submitted a copy of each counsel's retainer agreement containing a clause that stated, "Refusal by the Client to follow the Attorney's advice is ground for the Attorney's immediate withdrawal." 2255 Mot., Exs. 1 and 2, Dkts. 119-2 and 119-3. He also submitted affidavits from various individuals stating that when Swisher told Dunlap in their presence that he should testify (either because valuable evidence was not being shown to the jury or that only he knew exactly what happened), Dunlap stated that he and Groom would "walk" or be "gone." Id. Ex. 3,4, 5, and 6, Dkts. 119-4 to 119-7. See also Swisher Affidavit (filed with Motion for New trial), Dkt. 74-8.
While admitting that the provisions appeared in their retainer agreements, Groom explained that he includes the language for use when a client refuses to cooperate in the preparation of a defense and then objects to his request to withdraw. Groom Aff. ¶ 18. However, he denied ever threatening to walk out. Id. Dunlap also denied telling Swisher that he could not testify or telling him that he would "walk" if Swisher did so. Dunlap Aff. ¶¶ 39, 40.
Despite the conflicting affidavits, the Court does not deem it necessary to hold an evidentiary hearing because ultimately, whether counsel threatened to walk or not, Swisher had an opportunity to place his concerns before the Court and did not do so.
A defendant's constitutional right to testify in his own behalf is implicit in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972). "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant's "silence" after his attorney decides not to call him as a witness implies that he has waived the right to testify on his own behalf. See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.) cert. denied, 528 U.S. 989 (1999).
As noted in Pino-Noriega, the failure to testify should "not be raised as an afterthought after conviction." Id. at 1096. Rather, [a] defendant who wants to reject his attorney's advice and take the stand may do so "by insisting on testifying, speaking to the court, or discharging his lawyer." When a defendant remains "silent in the face of his attorney's decision not to call him as a witness," he waives the right to testify.
Id. at 1094-95 (internal citations omitted). By extension, this rationale would apply to situations where, as here, counsel limits a defendant's testimony for tactical reasons.
The Court not only presided over the trial but also over the sentencing. It was quite clear that Swisher is not one easily intimidated. He is an educated, articulate, sophisticated individual who was quite capable of speaking up and advising the Court of his wish to testify more fully. Indeed, his allocution at sentencing in arguing for a sentence of probation covered almost twenty pages of the transcript. Sent. Tr. 87-106. Swisher also advocated for himself after sentencing, albeit unsuccessfully, by filing a motion to postpone his incarceration and again after he was incarcerated by filing an emergency motion for home detention or proper medical care. See Mot. for Temporary Postponement,Dkt. 120 and Emergency Mot., Dkt. 132. Therefore, the Court finds that Swisher waived his right to testify fully. However, it will address the conflict of interest and ineffective assistance of counsel claims.
To demonstrate an adverse effect based on allegedly preventing him from testifying fully, Swisher must show not only that counsel wanted to assist the Hinksons but also that there was a causal relationship between that desire and the decision to limit Swisher's testimony. See, e.g., Reyes-Vejerano v. United States, 276 F.3d 94, 99 (1st Cir. 2002) (stating defendant must show some causal relationship between the attorney's awareness of the government's investigation of him and the attorney's failure to put defendant on the stand to prevail on conflict of interest claim). Stated another way, he must show that limiting his testimony "impermissibly favored" Hinkson. See Washington, 422 F.3d at 873. This he has not done.
Groom had a lengthy relationship representing Swisher, "knew he would have a hard time staying on track during his direct testimony," and "was concerned about what would be permitted on cross examination if direct examination was not limited." Groom Aff. ¶ 35. Dunlap "suggested that we narrow his direct testimony to the interactions with Woodring and why his records would be missing or sanitized." Id. Dunlap had similar reservations about Swisher's ability to stay on track and about the risk of cross examination if direct was not limited. Dunlap Aff. ¶ 35. In addition, Dunlap was concerned that Swisher might perjure himself. Id. ¶ 36. Despite their concerns, counsel made it clear that it was Swisher's choice to go along with their recommendation to limit his testimony or not. Id.
Given the nature of the charges, the concerns expressed by counsel, and the Court's own observation of Swisher, the Court cannot find that counsel's decision to limit Swisher's testimony was influenced by their desire to assist Hinkson. Rather, Swisher only presents an unsubstantiated theory of loyalty to Hinkson. See Reyes-Vejerano, 276 F.3d at 99 (noting even if attorney had been under investigation, the defendant offered no reason to think the attorney was influenced in his strategy "other than the general and unspecified theory that [the attorney] must have wanted to please the government").
Counsel's decision to limit Swisher's testimony appears to be the result of sound strategy rather than a ruse to ensure a guilty verdict to aid Hinkson in securing a new trial. In fact, when sustaining Swisher's objection to the obstruction of justice enhancement at sentencing, the Court commented favorably on trial counsel's limiting Swisher's testimony to avoid exposing him to an opportunity to perjure himself. See Sent. Tr. at 11 ("Defense counsel was very careful not to ask him any questions that might have put him in that posture . . ." referring to risking an obstruction of justice enhancement).*fn8
Carrying Swisher's argument to its logical conclusion, the more plausible alternative for aiding Hinkson would have been to allow Swisher to testify fully. A guilty plea would have been even more helpful to the alleged cause, but there is no indication that counsel pressured Swisher to plead guilty. Rather they supported Swisher's desire to go to trial, but did so in the way they deemed most likely to secure acquittal. Id. (finding no adverse impact based on attorney's advising the defendant not to testify where record and evidence showed that his intended testimony was at odds with the defense of actual innocence and counsel did not pressure him to plead guilty). Swisher has simply not shown that his testifying about his military experiences was a plausible alternative to the tactic suggested by counsel.
Swisher's claim fails even under the traditional Strickland approach. Swisher assumes -- in spite of the overwhelming evidence that his story was fabricated -- that he would have been acquitted had he testified about "the full story." Not only is that entirely speculative, counsel's strategy, though unsuccessful in securing an acquittal, was the result of "reasonable professional judgment" in light of their well-founded concerns about his ability to stay on track and to avoid perjury.*fn9 Strickland, 466 U.S. at 699.
The Ninth Circuit has rejected similar claims on a number of occasions. For example, in Matylinsky v. Budge, 577 F.3d 1083 (9th Cir. 2009), the defendant, on trial for killing his wife, had argued that counsel prevented him from testifying to demonstrate to the jury that his actions were neither premeditated nor deliberate. The court agreed with the state court that counsel's decision to not put him on the stand was reasonable because the defendant would have been subjected to "damning cross-examination on his prior convictions" and the jury "would have witnessed his matter-of-fact delivery regarding his wife's death and general disinterested nature" and his testimony was inconsistent with the theory of the case. Id. at 1097-98. Of note, the court also stated that to the extent counsel may have infringed on the defendant's right to testify, there was no indication of prejudice. Id. at 1098.
Similarly, in Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007), the defendant had wanted to testify that he killed the victim in self-defense. Counsel recommended against testifying because of the defendant's prior convictions, his inconsistent statements during a lengthy interview with police, and the inconsistency with the defense theory that someone else killed the victim. Noting those factors plus the "more than sufficient" other evidence to convict the defendant, the Ninth Circuit found that the inability to testify was not prejudicial.
Finally, in Dows v. Wood, 211 F.3d 480 (9th Cir. 2000), the defendant claimed ineffective assistance of counsel where counsel threatened to walk out on him if he testified. The district court had noted that the defendant had never indicated during the trial that he wanted to testify or that counsel prevented him for doing so. The Ninth Circuit found that counsel had very good reason for suggesting that the defendant not testify because of the risk of impeachment based on three prior convictions. Id. at 487.
Counsel here state that Swisher agreed with the decision to limit his testimony despite his current claims. Although not necessary to the Court's decision here, the Court notes that the totality of the circumstances suggests that Swisher was "persuaded" and not "coerced" into limiting his testimony:
Travis contends that his counsel was ineffective because he refused to accept Travis's decision to testify. Based on the events just recited, though, it is evident that Travis was aware of his right to testify and that, after the overnight recess, the opportunity to consult with his family, and his competency exam, he did not invoke that right. Travis's comments at trial indicate that he was a vocal defendant who did not hesitate to express his opinions. Given Travis's character, his failure to reassert his right to testify after the overnight recess was more than likely a product of his counsel's persuasion, not his coercion. Travis has not proved that his attorney's performance was constitutionally deficient.
United States v. Brown, 217 F.3d 247, 259 (5th Cir. 2000), vacated on unrelated grounds under the name Randle v. United States, 531 U.S. 1136 (2001). See also, Emery, 139 F.3d 191, 199 (5th Cir. 1997) (finding that because the defendant was "strong-willed and unlikely to allow his decisions to be controlled by pressure from others," his decision not to testify indicated the operation of counsel's persuasion, not his coercion). Here, on direct examination, Swisher appeared to stay on track suggesting his acquiescence to the strategy recommended by counsel. Tr. 581-87.
(b) Withholding of Key Evidence and Testimony
Among the testimony allegedly withheld out of loyalty to Hinkson, Swisher refers to the stipulation entered into without his consent that Woodring would have testified that he did not remember anything from 1957. However, Swisher obviously knew of the problems with calling Woodring as a witness.*fn10 See also Dunlap Aff. ¶ 21 and Groom Aff. ¶ 21.*fn11 It is obvious that Swisher's suggested alternative of calling Woodring as a witness despite his inability to recall and his possible antagonistic attitude was not an objectively reasonable alternative strategy.
Swisher next contends that the "original" replacement DD-214 (a carbon copy with an original signature) and the accompanying Woodring letter "disappeared" from Groom's office shortly before trial. Groom admits in his affidavit that the originals of the replacement DD-214 and Woodring letter had been in his office (although he denies he ever had a safe there as claimed by Swisher), but states that Swisher and his wife would periodically come into his office and take the documents. Groom Aff. ¶ 11. He does not believe they were returned once the Swishers took them on one occasion in the spring of 2005. Id.
Swisher would have the Court believe that simply because the documents were not in Groom's office, Groom deliberately withheld them out of loyalty to Hinkson. Without more, the Court cannot so find. Had Groom wanted to sabotage the defense, it is unlikely that he would have assisted Swisher in getting the PTSD benefits in the first place.
In light of the unavailability of the originals, Swisher "demanded" that prior affidavits and letters that Groom had submitted to the VA in support of Swisher's claim be admitted into evidence. § 2255 Mot., Exs. 10-12. He understood that because Groom could not testify while acting as counsel, Dunlap would cross examine a prosecution witness about the affidavits and letters. However, Dunlap never did.
Dunlap denies that he told Swisher that Groom's affidavits would be entered into evidence. Dunlap Aff. ¶ 30. Groom likewise denies that he told Swisher they would be introduced. Groom Aff. ¶ 30. He further states that both Swisher and his wife assisted in the preparation and assembling of the exhibit packages and therefore knew that Groom's affidavits would not be offered. Dunlap Aff. ¶ 30. Whether or not counsel told Swisher the documents would be submitted, they would not have been admissible under the Federal Rules of Evidence. Therefore, Swisher has not demonstrated that counsel failed to follow a plausible alternative course of action.
Swisher's claim would fail under Strickland as well because he cannot show prejudice. That the availability of the "originals" of those documents -- or Groom's affidavits or testimony regarding them -- would have helped Swisher in his defense is purely speculative given the questions raised by the Government's witnesses as well as the fact that there was nothing in his file to indicate that he had participated in the secret mission, been wounded, or received medals or commendations for his participation. Tr. 68-86 (Hensen); Tr. 313-14; 320 (Shattuck). Not only were the signatures at issue, but also the letterhead and various other characteristics of the documents suggested that they were not authentic.*fn12 Furthermore, the Marine Corps records indicate that all documents from the Korean War Era had been declassified and that no such mission occurred at all. Finally, Lt. Col. Elaine M. Hensen, Assistant Head for the Military Awards Branch at Headquarters Marine Corps, testified about the "endorsement chain" for military awards once an award is recommended. Tr. 71. Even though a paper copy of the documentation is kept at every level of the endorsement chain, she could not locate any such documentation for Swisher.*fn13 Tr. 72.
Given that the originals of the replacement DD-214 and accompanying Woodring letter were for whatever reason unavailable, the Court looks to the manner in which counsel attempted to prove the authenticity of the copies of those documents. Counsel called a forensic document and handwriting expert, Travis King, as a witness. They called Patricia Bromund, Swisher's parents' caretaker from 1999 to 2002, who testified that Mrs. Swisher showed her several medals and citations with Swisher's name on them.
Tr. 436. She was familiar with military medals because her husband had received some. Tr. 436-37. Bromund specifically recalled seeing a citation with the embossment of the Purple Heart and a certificate for the Silver Star. Tr. 437-38. She last saw the items spread out on Mrs. Swisher's bed in late 1999. Id. She theorized that the items may have been stolen by another caretaker after they were boxed up with other items and stored in the garage. Tr. 438-39.
Counsel's attempts to establish authenticity were reasonable under the circumstances notwithstanding the fact that the jury apparently was not persuaded by the testimony. Therefore, Swisher cannot show deficient performance or prejudice.
(c) Groom's Refusal to Testify
Swisher alleges that because Groom testified for Hinkson in Hinkson's trial but not in his trial, Groom must have favored Hinkson. Even if the Court were to find that Groom refused to testify out of loyalty to Hinkson, the Court cannot find adverse effect since Groom's testifying at Swisher's trial was not a viable option or plausible alternative.*fn14
As stated above, even though Groom could have testified that he had seen the so-called originals, he could not have authenticated the documents or the signatures. Groom Aff. ¶ 28. Although Groom seemingly represented himself to be an expert in his affidavits presented to the VA, he would not have been qualified as an expert in a court of law. He is clearly not a handwriting or document expert. Groom was merely expressing what, in effect, was a lay opinion based on his own time in the military service. Neither his testimony on supposed authenticity nor the affidavits themselves would have been admitted into evidence.
For the same reasons, Defendant cannot show ineffective assistance of counsel and resulting prejudice under Strickland. Groom could have testified only that he had seen the documents and that the letter appeared to bear an original signature. Given the overwhelming testimony regarding other questionable features of the documents, it is not likely that Groom's testimony would have changed the outcome of the trial.
According to Groom and Dunlap, Swisher concurred with the strategic decision to use Groom as trial counsel rather than as a cumulative witness. However, whether Swisher concurred or not, deciding which witnesses to call is one of those strategic decisions that are given great deference in a § 2255 proceeding. "Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to proffer a witness at trial." Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999).
(d) Seating Special Forces Juror
With regard to Swisher's claim that counsel seated a special forces soldier on the jury over his objection, the Court notes that Swisher is essentially stating that counsel must have seated the special forces soldier because they wanted Swisher to be convicted so Hinkson would get a new trial. Dunlap and Groom stated that Swisher had specifically indicated (1) that he wanted jurors with prior military experience, including "Special Forces" who would support the defense theory that the military either lost his records or intentionally covered up his combat experience; and (2) that he was "ecstatic about the jury that was chosen." Groom Aff. ¶¶ 32-33; Dunlap Aff. ¶¶ 32-33. Swisher's only reply to the statements in counsel's affidavits is that he did not wish to have an Army Special Forces individual on his jury "because of the long term service animosity with Marines." Reply at 13, Dkt. 13 in civil case.
Whether or not Swisher wanted that particular juror selected, the Court cannot say that counsel's strategic choice is indicative of an adverse effect induced by a conflict of interest. Aside from the generalized perception of animosity between the services, Swisher has not alleged that the juror exhibited any specific bias against him during voir dire or that he otherwise was an unsuitable choice. The Court cannot infer an adverse effect based on this lack of evidence. See United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995) (absent evidence that counsel did anything wrong in selecting the jury, court cannot infer that it is likely that his performance in jury selection was adversely affected by the alleged conflict of interest).
Likewise, there is no basis for finding either deficient performance or prejudice under Strickland. "An attorney's actions during voir dire are considered to be matters of trial strategy . . . . A strategic decision cannot be the basis for a claim of ineffective assistance unless counsel's decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness." Miller v. Webb, 385 F.3d 666, 672-73 (6th Cir. 2004) (internal citation omitted).
Because Swisher makes no credible claim that the Special Forces juror himself harbored any bias or was otherwise unsuitable, there is no basis for finding that counsel's failure to strike that juror was deficient. The strategy advanced by counsel that the Special Forces juror might be sympathetic to the defense theory that the military either lost his records or intentionally covered up his combat experience appears to be reasonable in the absence of any indication of specific bias. Furthermore, the likelihood that the presence of the Special Forces juror changed the outcome of the trial is entirely speculative.
B. Ineffective Assistance of Counsel Unrelated to Conflict of Interest
Strickland directs the Court to "eliminate the distorting effects of hindsight" to the extent possible and to evaluate the challenged conduct "from counsel's perspective at the time." Strickland, 466 U.S. at 690. Recognizing the difficulty of doing so, Strickland explained further:
[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Id. (citations omitted) (emphasis added).
As shown below, most of the acts and omissions of which Swisher complains are the result of strategic decisions generally left to counsel and not to the demands of a client.Furthermore, a difference of opinion regarding trial tactics is not proof of ineffective assistance of counsel. See Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010) (citing United States v. Mayo, 646 F.3d 369, 375 (9th Cir. 1981) (per curiam)).
(1) Withholding Evidence
In Ground Five of the § 2255 Motion, Swisher lists numerous documents and witnesses counsel failed to introduce that allegedly would have resulted in acquittal if admitted. As the Government points out in its Response and a review of the record confirms, many of the witnesses did testify and many of the documents were admitted.*fn15
Resp. at 18-19. Others would have clearly been inadmissible, irrelevant, or cumulative of other evidence. Id.
Contrary to Swisher's allegations, Travis King was permitted to discuss the use of Photo Shop, James Funke testified regarding his experience with individuals who attempt to fake PTSD, Doug Sellars testified about the changes he observed in Swisher after Swisher returned from the military, and Esther Westlake testified about Swisher's disability rating. See Tr. 553-54; 468-69; 409; 502-05. Other witnesses and evidence were either cumulative or of little relevance to the time period in which Swisher served. In any event, Swisher has not persuaded the Court that any failure to call certain listed witnesses and to introduce certain evidence constitutes deficient performance.
(2) Failure to Investigate or Subpoena Documents
Swisher contends that counsel should have further investigated and subpoenaed the numerous documents listed in his discovery motion and § 2255 Motion.
Strickland counsels that attorneys have a "duty to make reasonable investigations" regarding whether admissible evidence exists. In evaluating attorneys' judgments as to whether to pursue evidence, courts must consider "whether the known evidence would lead a reasonable attorney to investigate further." We apply a "heavy measure of deference to [an attorney's] judgments" as to whether additional evidence may be adduced by further investigation. As the district court said, "[i]f the decision not to investigate beyond a certain point is reasonable, then the failure to do so cannot constitute ineffective assistance of counsel."
Stenson v. Lambert, 504 F.3d 873, 889 (9th Cir. 2007) (internal citations omitted).
Here, counsel received discovery from the Government which contained Swisher's entire military file, medical file, and other correspondence from the military. Those files contained no hint that there was a secret mission; that Swisher participated and was wounded in the mission; or that he received any medals, commendations, or other recognition. Furthermore, the unit diaries and other records did not reveal that Swisher's Company or anyone from his Company had engaged in any missions or battles or been injured or killed during the time Swisher was on active duty. Letters from Marine Corps record custodians that there was no secret mission, that information regarding General Erskine for 1955 pertaining to Korea did not exist,*fn16 and that no medical or other record existed supporting his claims suggests the futility of further investigation. Even Swisher himself states only that the documents "may" support his claims.*fn17 The Court finds that the decision not to investigate further was thus reasonable under the circumstances especially given that Swisher's service in Japan occurred over fifty years before trial.*fn18
Furthermore, testimony at trial indicates that he was not prejudiced even if counsel should have subpoenaed documents.*fn19
(3) Comments Made in Jest.
Swisher alleges in Ground Seven that Dunlap made comments in jest during the opening statement, during examination of a Marine Corps Major, and in the closing argument to the effect that Swisher was the "most intelligent" person he had met who had been planning to defraud the government for over 50 years. § 2255 Motion at 12. He reasons that because no one laughed or took it as a joke, the jury believed Dunlap. Therefore, Dunlap "intentionally aided the prosecution" because the comments elicited bias against him "as no one likes a 'most intelligent' person." Id. 12-13.
The Court has reviewed defense counsel's opening statement and finds no comment about sitting next to the "most intelligent" person. Tr. 62-67. Swisher has not identified the "Marine Corps Major" during whose testimony Dunlap allegedly made a similar comment. The Court will not search the record looking for the context of a comment made by an unidentified witness. A review of defense counsel's closing argument, however, does reveal such a comment. After thanking the jurors at the start of his closing argument, defense counsel stated: Right now I think that I have had the pleasure of sitting next to one of the smartest people on the face of the earth, and that's got to be my client because, since 1955, he has been planning a fraud, and he has been doing it for 50-plus years.
Tr. at 652.
After then quoting language from a September 2, 1955 letter Swisher had written to his family while stationed in Japan, Dunlap said:
September 2, 1955, is when this plan, apparently, was hatched. He backed that up in 1956, prior to June. . . . This is one of the most fascinating plans I've ever heard of. 1955, 1956, he is planning on defrauding the VA.
Tr. at 653-54.
There are no other such comments during closing. Tr. 652-67. Those two comments in the context of the entire closing and, indeed, the entire trial, do not evidence anything other than a bit of sarcasm. It appears that counsel was trying to suggest that the Government's strategy was to argue that Swisher was laying the groundwork in 1957 to defraud the VA almost fifty years later.
As the Supreme Court has stated,
The right to effective assistance extends to closing arguments. Nonetheless, counsel has wide latitude in deciding how to best represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should "sharpen and clarify the issues for resolution by the trier of fact," but which issues to sharpen and how best to clarify them are questions with many reasonable answers. . . . Judicial review of a defense attorney's summation is therefore highly deferential -- and doubly deferential when it is conducted through the lens of federal habeas.
Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (citations omitted) (noting several key points made by counsel in closing).
In his closing, Dunlap stressed a photo depicting Swisher wearing ribbons above the left pocket of his uniform in 1956 while on active duty; the errors, inconsistencies, and omissions in various military records; the testimony of another individual who was stationed at Middle Camp Fuji that Swisher's Company "disappeared" for a long time and that there was "scuttlebutt" that there were huge losses; two other "lifesaving" incidents that led to receiving Navy Marine Corps Medals; the letter he had written home indicating that something "special" was taking place; that Woodring retained Swisher's official record beyond the few days he should have retained it; and his expert's superior methods of determining whether the replacement DD-214 was a forgery as compared with those of the Government's expert. Finally, counsel argued that Woodring had deliberately not submitted the replacement DD-214 because he wanted to seek revenge on Swisher for Swisher's having an affair with his "woman" apparently to sabotage any attempt on Swisher's part to get into the ROTC program.
Isolated comments in an argument must be considered in the context within which they were made. See, e.g., Cope v. United States, 272 Fed. Appx. 445, 448-49 (6th Cir. 2008) (noting that each of three isolated comments when considered in context supported a reasonable trial strategy). Here, Dunlap's comments, though perhaps inartful, were part of his strategy to show the weakness of one part of the Government's case. That strategy was only one among the several employed by counsel. Taken in the context of the entire argument, the comments made in jest are not indicative of deficient performance.
(4) Failure to File Post-Trial Motions or Advise of Post-Conviction Rights
Swisher claims in Ground Nine, that Dunlap and Groom failed to file post-trial motions and to advise him of his post-conviction rights. He does not allege any grounds upon which a post-trial motion could have been brought. Both Dunlap and Groom state in their respective affidavits that after the verdict, they met with each other, the Swishers, and the handwriting expert and discussed "for hours" grounds for a new trial and for possible appeal following sentencing. Dunlap Aff. ¶ 41; Groom Aff. ¶ 41. They further discussed the need for new, material evidence to support a new trial motion and assigned each person a series of investigatory tasks. Id., ¶ 42. No new evidence was uncovered. Id., ¶ 43. Swisher does not rebut counsel's statements in his Reply.
It is unclear whether Swisher includes an appeal and a § 2255 motion when he refers to post-conviction rights. However, whether counsel discussed them or not is a moot point because Swisher's new counsel filed a timely notice of appeal and Swisher himself filed a timely § 2255 motion.
Counsel in any trial must make numerous strategic decisions. "Representation is an art, and an act or omission that is unprofessional in one case may be sound or either brilliant in another." Strickland, 466 U.S. at 693.
Swisher believes that because counsel made decisions with which he now contends he did not agree, counsel must have made them out of loyalty to Hinkson. However, counsel's decisions are readily explained by other considerations. While the Hinkson family may have wanted to discredit Swisher, there is simply nothing in the record -- aside from Swisher's conclusory allegations -- indicating that counsel made any decision based on loyalty to Hinkson whom neither had represented for several years. Likewise, there is nothing in the record indicating that counsel's performance was deficient or resulted in any prejudice.
It is apparent that Swisher is given to hyperbole and wild speculation and sees conspiracy in the most innocuous of actions or inactions. It is also apparent that he wanted to be in total control of every decision. Indeed, much of Swisher's argument is essentially that if things had been done his way, he would have been acquitted. However, Swisher focuses on certain evidence that was not sought or certain testimony that was not presented while ignoring the overwhelming evidence against him. Notably, the Court commented at sentencing, "I don't think there was too much doubt there was absolutely no evidence to support his claim which he tried to suggest was the result of some type of covert operation . . . ." Sent. Tr. at 72-73.
The Court observed counsel through five days of trial and did not see anything less than zealous advocacy on Swisher's behalf. In fact, at times it was almost overzealous as evidenced by the Court's admonishments of counsel cited by Swisher on appeal. The Court also observed Swisher both personally at trial and in his lengthy allocution at sentencing and through reading his post-sentencing filings.
A review of the entire record, including the trial transcripts, coupled with the Court's own observations, reveals a vigorous defense which did not prevail given the overwhelming evidence that there was no secret mission in North Korea and that Swisher did not receive the medals he claimed to have been awarded.
REVIEW OF RENEWED § 2255 MOTION
On February 17, 2011, Swisher filed a further § 2255 Motion which was docketed as a Renewed § 2255 Motion. In it, he adopts and includes all grounds contained in the original still pending § 2255 Motion. The Court notes that Swisher did not seek leave of Court to file what is essentially an amendment to his original § 2255 Motion. See Fed. R. Civ. P. 15(a)(2). Nevertheless, the Court will address his new claims without requiring a response from the Government.
Swisher bases the motion on what he refers to as newly discovered facts: (1) the Ninth Circuit case of United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010), reh'g denied, 2011 WL 941617 (9th Cir. Mar. 21, 2001), finding the Stolen Valor Act facially invalid under the First Amendment, and (2) the new Department of Veterans Affairs regulation regarding PTSD claims. Neither qualifies as newly discovered evidence. Nor do they provide grounds for relief under any other theory.
1. Unconstitutionality of the Stolen Valor Act
The Court interprets Swisher's claim that Alvarez is a newly discovered fact as a claim that his conviction under 18 U.S.C. § 704(a) for wearing unauthorized medals is unconstitutional given the holding in Alvarez that Stolen Valor Act violates the First Amendment.
Because Swisher did not challenge the constitutionality of § 704(a) at trial or on appeal, he is procedurally barred from raising this issue absent a showing of cause and prejudice for failing to so raise it on direct review. See Bousley v. United States, 523 U.S. 614, 622 (1998). However, the Court does not reach the issue of procedural default because it dismisses Swisher's claim on the ground that Alvarez does not apply to § 704(a).
The Stolen Valor Act of 2005, 18 U.S.C. § 704,*fn20 became effective December 20, 2006. In short, it expands on the prior versions of § 704 in response to concerns about the damage to the reputation and meaning of military medals and decorations caused by fraudulent claims regarding their receipt and the limited ability of federal law enforcement officers to prosecute fraudulent claims.*fn21 152 Cong. Rec. H8819 (daily ed. Dec. 6, 2006) (statement of the Act's proponent Congressman Salazar).
From 1948 until the enactment of the Stolen Valor Act, § 704(a) had essentially criminalized the knowing wearing, manufacturing, or selling of military medals or decorations except when authorized by regulation. The language was substantially the same as its predecessor statute, the former 10 U.S.C. § 1425.
The present Act now criminalizes several other activities with respect to medals or decorations. Most notably, the present Act added a new provision criminalizing written or verbal false claims of receipt of military decorations or medals. See § 704(b). The prior Act provided for enhanced penalties for offenses involving the Congressional Medal of Honor. See § 704(c). The current Act retains that enhanced penalty provision and adds an enhanced penalty provision for claims involving the Distinguished Service Cross, Navy cross, Air Force Cross, Silver Star and Purple Heart. See §§ 704(c) and (d).
In Alvarez, the Ninth Circuit ruled that the Stolen Valor Act violates the First Amendment by regulating pure speech that "is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment's protective sweep" and by not being "narrowly tailored to achieving a compelling governmental interest." Alvarez, 617 F.3d at 1200. Notably, the defendant in Alvarez had been convicted of falsely verbally claiming to have receive the Congressional Medal of Honor and was thus prosecuted under § 704(b) and the enhancing provision of § 704(c).
The Court respectfully suggests that it is not at all clear that the Alvarez decision invalidated § 704(a), the provision under which Swisher was convicted. The entire decision as well as the dissenting opinion discussed the pure speech aspects of the § 704(b) without referencing § 704(a) even in passing. Similarly, the decision in United States v. Strandlof, No. 09-cr-00497-REB, 2010 WL 4235395, (D.Colo. Jul. 16, 2010), which also found the Stolen Valor Act to be unconstitutional, addressed only § 704(b). On the other hand, the only decisions to have addressed § 704(a), both of which are post-Alvarez, have upheld the provision.
The Nevada district court denied the defendant's motion to dismiss the indictment charging him with violating § 704(a) by the unauthorized wearing of a Purple Heart. See United States v. Perelman, 73 F.Supp. 2d 1221 (D. Nev. Aug. 19, 2010). The court found that the facts and issues of the case were distinguishable from the facts and issues in Alvarez since Alvarez only addressed false claims under §§ 704(b) and (c) and not the unauthorized wearing of a medal under § 704(a). Id. at 1223 (accepting and adopting the Magistrate Judge's Report and Recommendation submitted prior to the Alvarez decision).
Likewise, the district court for the Western District of Virginia upheld the constitutionality of both § 704(a) and § 704(b) specifically rejecting Alvarez regarding § 704(b) and making no mention of it in its discussion of § 704(a). See United States v. Robbins, No. 2:10CR00006, 2011 WL 7384 (W.D.Va. Jan. 3, 2001).
The Court agrees with the courts in Perelman and Robbins that the Alvarez decision does not implicate § 704(a).
2. New Regulation Regarding PTSD
According to the Department of Veterans Affairs Fact Sheet dated July 12, 2010 submitted by Swisher as Exhibit A (Dkt. 18-1), a new regulation became effective July 13, 2010 regarding claims for PTSD. See 38 C.F.R. § 3.304(f). According to the Fact Sheet, the new regulation is applicable to claims and appeals received by the VA on or after the effective date or received before but not yet decided on that date. In recognition of the frequent delayed onset of PTSD and the difficulty in gathering the required documentation, it "liberalizes the evidentiary standard for Veterans claiming service connection for post traumatic stress disorder (PTSD)." Fact Sheet at 1.
Swisher submits the Fact Sheet apparently in support of his theory at trial that service records are often incomplete or lost. However, by its terms, the regulation is not applicable to the claim he made with the VA that was the subject of his underlying criminal offense. Swisher attached copies of his recent correspondence with the VA about this new regulation and his new claim made pursuant thereto. Neither is relevant to this case. In any event, given the limiting language in the Fact Sheet, it is doubtful that even the new application will be approved. See Fact Sheet, ¶¶ 5 and 8 referring to the requirement that "the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service and the record provides no clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(f).
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability will issue only when a movant has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When, as here, the court has denied a § 2255 motion or claims within the motion on the merits, the movant must show that reasonable jurists would find the court's decision on the merits to be debatable or wrong. Slack v. McDaniel,529 U.S. 473, 484 (2000);*fn22
Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006). Rule 11 of the Rules Governing § 2255 Proceedings provides that the district court must issue or deny a certificate of appealability at the time it enters a final order adverse to the movant. Rule 11(a), 28 U.S.C. foll. § 2255.
After carefully considering the record and the relevant case law, the Court finds that reasonable jurists may find debatable the Court's determination that the Ninth Circuit decision in Alvarez does not warrant addressing Swisher's claim regarding his conviction under § 704(a). The Court further finds that reasonable jurists would not find the Court's determination regarding Swisher's claims of ineffective assistance of counsel to be debatable or wrong.
IT IS ORDERED:
1. Swisher's 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) are DISMISSED.
2. A certificate of appealability shall issue only as to the issue of whether Alvarez entitles Swisher to relief from his conviction under 18 U.S.C. § 704(a).