Idaho- We have got a lot of emails and posts about this conviction that was over-turned today. Elvin used the basis of the over turning of the original act to have his conviction overturned as he wasn’t gaining a tangible benefit. He was not charged under the current law as it hadn’t been written yet. Many news organizations are posting this story and not giving all the facts and details. The SV ACT of 2005 was over-turned in 2012, but with headlines like “US Court: Wearing unearned military medals is free speech”, you would think it happened today.
The Stolen Valor Act of 2013 still stands, as he wasn’t convicted under it.
Background of Elvin’s Case:
Elvin Joe Swisher was convicted of wearing a Purple Heart he hadn’t earned,among other charges after he appeared as a witness in a 2004 trial. Swisher’s claim that he was awarded a Purple Heart became a key issue in a criminal trial involving defendant David Hinkson, who was on trial for solicitation of murder. See United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2). According to testimony at trial in 2004, Swisher told Hinkson “he was a veteran of the United States Marine Corps and a firearms expert who had killed a number of people in the Korean War.” Apparently impressed by Swisher’s war record, Hinkson asked him to torture and kill various people. Because Swisher wore a Purple Heart while testifying, the defense counsel attempted to impeach his credibility by producing military records showing that Swisher had not been awarded any medals.
On re-cross, Swisher produced a replacement DD214. The district court denied Hinkson’s motion for a mistrial and instructed the jury to disregard the testimony about whether Swisher had a right to wear the Purple Heart. About a year later, the VA received information from the military personnel division that the replacement DD-214 was fraudulent.
In 1958, a year after his discharge, Swisher applied for disability benefits from the Veterans Administration (VA) in connection with a shoulder injury stemming from a drunk driving incident that occurred off base in Washington, and a nasal operation that took place shortly before he was discharged. The VA awarded Swisher ten percent disability for shoulder arthritis, but denied Swisher’s subsequent applications for increased disability benefits for the same injuries.
In 2001, more than forty years after his discharge, Swisher filed a new claim for service-related Post-Traumatic Stress Disorder (PTSD). In his application, Swisher claimed he suffered from PTSD as a result of his participation in a secret combat mission in North Korea in August or September 1955. Along with his application, Swisher provided a self-published narrative that described the North Korea operation. According to the narrative, Swisher was selected for a secret combat mission while stationed at Middle Camp Fuji, Japan. Swisher and about 130 other Marines were flown by helicopter to an unknown place in China or North Korea. After the unit disembarked and began to approach a designated hill, it came under heavy enemy gunfire and sustained significant casualties. Swisher was severely wounded and flown back to Japan where he received medical treatment. He later learned he had sustained a “concussion, broken nose, (lost a piece of meat out of the right side), broken foot, broken teeth, collar bone separation, cracked ribs and grenade fragments in both arms, both legs, and torso.” While in the Third Battalion Medical Center recovering from his wounds, Swisher claimed that he and the other wounded were visited by an unnamed captain, who presented a Purple Heart to each of the wounded men, including Swisher.
The Captain “then told us that because of the participation in combat, all the survivors were entitled to and should wear the National Defense Medal, Korean War Service Medal and the Korean War U.N. Service Medal and Ribbons,” along with Navy Commendation Ribbons with a Bronze V. Swisher claims he also received a Silver Star. The Captain cautioned the men not to talk about “the incident” and warned that “anyone who talks will wind up in federal prison.” When Swisher asked the Captain “exactly where we had been and what happened to the others,” the Captain “left abruptly without answering.” After reviewing Swisher’s application for PTSD benefits and the accompanying narrative, the VA denied the claim because Swisher failed to provide corroborating evidence beyond his own statement that his PTSD was service connected. Swisher appealed the denial and submitted a photocopy of a second DD-214, which included the typewritten comment that “[t]his document replaces the previously issued transfer document” and “changes and additions have been verified by Command.” Section 16 of the second DD-214 stated that Swisher had received the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Expeditionary Medal with Bronze “V.” Section 17 stated that Swisher had received “[m]ultiple shrapnel and gunshot [wounds]—September 1955, Korea.” The form was again signed by Captain W.J. Woodring. Swisher also submitted a letter signed by Captain Woodring, dated October 16, 1957, that confirmed Swisher’s involvement in a “Top Secret” expeditionary mission, and verified his awards. Based on this information, the VA reversed its earlier decision in July 2004, ruled that Swisher’s PTSD was a compensable disability, and granted Swisher a total of $2,366 a month in benefits.
In July 2006, after further investigation confirmed that the DD-214 was forged, the VA reversed its determination that the PTSD was service connected and required Swisher to pay back the PTSD benefits that he had received. In July 2007, a grand jury indicted Swisher for four violations of federal law: (1) wearing unauthorized military medals in violation of 18 U.S.C. § 704(a); (2) making false statements to the VA regarding his military service, disabilities, and honors, in an effort to obtain benefits in violation of 18 U.S.C. § 1001(a)(2); (3) forging or altering his certificate of discharge, also in an effort to obtain benefits, in violation of 18 U.S.C. § 1001(a)(3); and (4) theft of government funds, in violation of 18 U.S.C. § 641.
During the one-week trial, Lieutenant Colonel Elaine Hensen, the assistant head for the Military Awards Branch at Headquarters Marine Corp, discussed her review of the Marine Corps files and her determination that the files contained no record of Swisher suffering any injuries in combat or receiving or being awarded the Purple Heart or any other medal or award. The government also introduced Exhibit 67, a photograph showing Swisher and another man wear a Purple Heart.
The parties agreed that any evidence related to the Hinkson trial would be excluded from Swisher’s trial. In the photograph, Swisher is wearing several military medals and awards, and shaking hands with a person in civilian garb. The parties stipulated that the photograph was authentic. Lt. Col. Henson testified that the photograph showed Swisher wearing the Silver Star, the Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze V, and the UMC Expeditionary Medal. She reiterated that there was nothing “in the United States Marine Corps’ files . . . to substantiate Mr. Swisher’s entitlement to wear any of those awards.” In addition, Jeffrey Shattuck, the head of the Records Correspondence Section for the Personnel Management Support Branch of the Marine Corps, outlined in detail the numerous indicia of fraud on Swisher’s replacement DD-214 and accompanying letter from Captain Woodring that Swisher had used to verify his awards. At the conclusion of the trial, the jury found Swisher guilty on all counts. The court imposed a below-guidelines sentence of 12 months and one day, with a three-year term of supervised release.
Swisher later challenged his conviction through a motion under 18 U.S.C. § 2255 and claimed that his conviction for wearing the medals violated the First Amendment under the reasoning of the Ninth Circuit’s intervening decision in United States v. Alvarez, the case the found the Stolen Valor Act of 2005 was unconstitutional and in violation of free speech.
Swisher served time in Federal prison after being found guilty of defrauding the government of nearly $100,000 in veterans’ benefits, presenting false statements and documents to the Department of Veterans Affairs and theft of government funds.
We are now exercising our free speech and posting the truth for the world to see. Also please refer to my Colleague’s article explaining the legal aspects and that this changes nothing. 9th Circuit Overturns Portion Of Old Stolen Valor Law