Ninth Circuit upholds conviction of Valor thief Elven Swisher

| October 30, 2014

Elven Swisher

Former Marine Elven Swisher told the Veterans Affairs Department that he had been wounded on a secret mission into China or North Korea in 1957, that he had been awarded a secret Purple Heart for the wounds, but that he’d been told to keep it quiet. As a result, he collected a few thousand bucks in disability pay, until the VA discovered that no such “off the books” operation took place. Swisher was convicted of the lie in 2007.

At his trial, the Marine Corp testified that Swisher hadn’t been injured during his service and the prosecutor presented the court with photos of him wearing the Purple Heart and a Silver Star. He was sentenced to a year in jail and three years of supervised release.

Following in the foot steps of Xavier Alvarez, Swisher appealed the decision to the 9th Circuit on the grounds that he was denied his First Amendment rights, according to Courthouse News.

Swisher presented similar arguments [to Alvarez], but U.S. District Judge B. Lynn Winmill in Boise denied his petition. A unanimous appellate panel agreed on Wednesday, though one judge argued that the ruling is based on a bad but unavoidable law.

The panel based its decision not on Alvarez but on the 9th Circuit’s 2012 ruling United States v. Perelman, which the high court declined to review. In that case, the appellate court “interpreted § 704(a) as criminalizing ‘the unauthorized wearing of medals only when the wearer intends to deceive.'”

The government’s “extensive evidence that Swisher was not entitled to wear those medals, as no military record documented the awards or Swisher’s claimed combat injuries,” proved at trial that Swisher had intended to deceive by wearing the unauthorized medals, the three-judge panel found.

“Taken together, this evidence demonstrates that Swisher wore the medals for the purpose of claiming that he was ‘worthy of commendation,’ when in fact he was not,” Judge Sandra Ikuta wrote for the panel. “Given Perelman’s conclusion that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with an intent to deceive, Swisher’s constitutional challenge to his conviction under § 704(a) fails.”

David Perelman had claimed that a self-inflicted gun shot wound was a war injury from his time in Vietnam and he collected about $180,000 in disability payments. He, of course, was convicted and used the same language as Alvarez claiming that his fraud was free speech, but the court disagreed because the Alvarez case defended “pure speech” but Perelman, and now Swisher, included fraud.

I’m not a lawyer, but I think I got all of that right.

Category: Stolen Valor Act

Comments (25)

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  1. PAO SSG says:

    Well, the court got that one right!

    Now I’m no legal scholar, but doesn’t each ruling that affirms that SV is not protected speech help with establishing precedent so that it makes it harder to argue that it is a 1st Amendment issue?

    Because if so, doesn’t that make this a bigger win than I immediately thought?

    • Gravel says:

      Not really.

      What it affirms is that using stolen valor to aid in the commission of a crime (in this case to defraud the VA of money and benefits) is illegal.

  2. ChipNASA says:

    I’m not a fake lawyer, never was CPO, fraudulent tour bus operator, Social Security check ambulance chaser, ground auguring aircraft pilot, piss stained, impotent, feces munching, psychotic asshat, but even I can see the system got this one right.

    😉

  3. Mayhem says:

    I once stayed at a cockroach infested, prostitute frequented Motel 6 and even I know the Ninth Circuit Court got this one right.

  4. NHSparky says:

    Doesn’t take a drunk-ass skydiving fucktard to see that this was the right decision.

  5. Semper Idem says:

    Hey, Supreme Court…repeat after me…

    Fraud. Is. Not. Speech.

    Think you can handle that? The First Amendment was created so We The People can discuss the issues of the day without worrying about our speech being repressed by those in power. It wasn’t so some loser could desecrate a funeral. It wasn’t so someone could lie about the Medal of Honour. It wasn’t so someone could burn our beloved Stars and Stripes. Think y’all can handle that?

    See? It really is that easy.

    • 2/17 Air Cav says:

      Hey, Semper Diem. I have noticed your use of the British spelling of common words in your comments. I recall colour, realise, and, in this post, Medal of Honour. What’s up with that?

      • Semper Idem says:

        I post on a lot of UK / Commonweath message boards. I suspect that some of those spellings rubbed off on me somehow.

        That’s pretty much it. US spellings just look strange to me now.

  6. Perry Gaskill says:

    A squadron of porkers just took off and is now circling the Ninth District courthouse.

  7. farmgirl with a mosin nagant says:

    Maybe it’s because I’m a bit of a nerd for games and so on, but I couldn’t get past his name. Elven Swisher.

    Elven Swisher.

    I mean… how did anybody even take his claims seriously in the first place?

    • Hondo says:

      I guess that means DADT has arrived in Tolkien’s world too . . . .

      • farmgirl with a mosin nagant says:

        Oh heck, open secret. All of what, three named female characters most people can remember, and that’s if you count Galadriel – that suggests a lot of lonely men. But yeah, Elven Swisher. Not a name I’d give my kid.

        • Hondo says:

          Don’t think that’s the case, farmgirl. Tolkien was a product of the very prudish Victorian Era (born 1892, fought in World War I) and wrote The Hobbit in the early 1930s; the first two volumes of “Lord of the Rings” were also written not long afterwards (though the trilogy wasn’t published until the mid-1950s). I’m guessing his Victorian upbringing and the fact that he was writing about mythological “antiquity” had more to do with the lack of named female characters in Tolkien’s works than any hidden or latent homosexuality.

    • Gravel says:

      Bit of a gamer myself. 🙂

  8. Sparks says:

    The Ninth Circuit called one right! I’m surprised but still glad they upheld this and refused to consider it further.

    • UpNorth says:

      Agreed, this is out of character for the 9th Circus, enough to make me wonder what they did with the real judges.

      • 2/17 Air Cav says:

        Well, before some of you start to think that hell must have frozen over, I would like to point out that the decision was rendered by a three-judge panel and, as such, it was bound to decide the case consistent with Perleman. In a nutshell, the panel’s hands were tied and all three acknowledged this in the decision. Said the majority, “We may overrule a prior decision by a three-judge panel only when there is intervening higher authority that is clearly irreconcilable with the prior decision.” So, because Perleman had not been overturned by the 9th Circuit sitting en banc or the US Supreme Court itself, the three were legally stuck with it. So, I would urge you who are bolstered by this decision to enjoy the moment because the 9th will sooner or later undo the controlling case, Perleman.

  9. ArmyATC says:

    Elven Swisher. So he’s a faerie….fairy?? Maybe Bubba and Thor will take his name literally.

  10. 91A10 says:

    US appeals court: Wearing unearned military medals is free speech
    By PAUL ELIAS
    Associated Press

    SAN FRANCISCO — A federal appeals court on Monday tossed out a veteran’s conviction for wearing military medals he didn’t earn, saying it was a form of free speech protected by the Constitution.

    A specially convened 11-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the First Amendment allows people to wear unearned military honors.

    Elven Joe Swisher of Idaho was convicted in 2007 of violating the Stolen Valor Act, which made it a misdemeanor to falsely claim military accomplishments. President George W. Bush signed it into law in 2006, but the U.S. Supreme Court struck it down in 2012 as a violation of free speech protections.

    Investigators looked into Swisher’s military claims after he testified at the 2005 trial of a man charged with soliciting the murder of a federal judge. Swisher wore a Purple Heart on the witness stand.

    Swisher testified that David Roland Hinkson offered him $10,000 to kill the federal judge presiding over Hinkson’s tax-evasion case. Swisher said Hinkson was impressed after Swisher boasted that he killed “many men” during the Korean War.

    Prosecutors say Swisher enlisted in the Marine Corps a year after the Korean War ended but was never wounded in the line of duty. Swisher was honorably discharged in 1957, and discharge documents indicate that he didn’t receive any medals, according to the 9th Circuit ruling.

    During his 2007 trial, prosecutors showed the jury a photograph of Swisher wearing several military medals and awards, including the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, and the Navy and Marine Corps Commendation Medal with a Bronze “V.”

    Swisher’s attorney Joseph Horras of Boise, Idaho, couldn’t immediately be reached for comment Monday.

    After the Stolen Valor Act was struck down, Congress passed a new law making it a crime to profit financially by lying about military service. President Barack Obama signed it in 2013.

    After Swisher’s conviction, Congress removed a provision making it illegal to wear unearned medals.

    http://www.stripes.com/news/veterans/us-appeals-court-wearing-unearned-military-medals-is-free-speech-1.388241