SUBJECT: Elven Joe Swisher’s criminal conviction and sentence recommendationDATE:  November 3, 2008

By contrast, the Lewiston [Idaho] Tribune inaccurately reported on January 31st, 2008 (two plus months before Swisher’s trial) that “the maximum penalty for theft of government funds is 10 years in prison, a $250,000 fine and three years of supervised probation, according to court files.  Two counts of making false statements have potential penalties of five years in prison for each, a $250,000 fine and three years of supervised release.  Wearing unauthorized military medals is punishable by six months in prison, a $5,000 fine and a year of supervised release.”

“[There was] no combat, no operation involving anyone and no notations of any injuries.”   

Currently Federal Probation Officer, Mr. Doug Grove of Boise, Idaho, assigned to Swisher’s case, is recommending leniency that amounts to six or seven levels below what the U.S. Sentencing Guidelines would allow.  This departure from normal permits Swisher to have home detention and an ankle bracelet without prison time.  It is beyond cavil and without credibility that a 20 year and 6 month prison sentence could be reduced to 15 months of home detention. 

Mr. Bugbee, in making his case for leniency says: “Certainly the seriousness of the offenses for which he [Swisher] has been convicted should he balanced against the law-abiding life that he lived prior to his convictions: “to reflect the seriousness of the offense, “to promote respect for the law, “to afford adequate deterrence to criminal conduct: “to protect the public from further crimes of the defendant while providing an adequate deterrence to future criminal conduct … [and] “to provide just punishment for the offense.”  Mr. Bugbee further advocates, “A sentence which imposes simple probation or home detention is more than adequate to do justice in this matter.”

He was subsequently discharged from the USMC Reserves on August 3, 1962, after having been court-martialed and reduced to a PFC while on active duty.  Swisher’s conviction answers the question: Where is the record showing participation in active combat?  It does not exist, just as the record of injuries, secret missions and awards do not exist. 

On October 1st, 1954, Swisher was promoted to PFC.  The Record showed that on February 14, 1955, Swisher left San Diego for Japan.  He was on board the USS Montrose on March 3rd, 1955, for amphibious training in Japan. 

The Korean War occurred during the period from June 27, 1950, to July 27, 1953 (when the negotiated Armistice was signed).  For proper accreditation of service personnel (POWs etc.) the official termination date was extended to January 31, 1955.  Technically, Swisher was in the extended period of post-Korean War activity for nearly six months (although there were no hostilities during his enlistment, and his duty assignments never included Korea). 

Instead, he claimed that he was in combat activity beginning in September 1955, nine months after the close of the extended period of the War.  Swisher stated that he had been transferred in August 1955 to a combat unit in Korea and remained there through November 1955.  He further said that on October 26, 1955, he was admitted to Third Battalion Medical Center “to do something about my broken and missing teeth” (see A Marine Remembers, page 8) supposedly sustained in a combat operation – what about shrapnel and gunshot wounds?  What about recovery from those wounds?  In his book, Swisher made the preposterous claim that he came out of the hospital the next day after being admitted and was, as a Corporal, assigned to direct maneuvers of a mock invasion.  On October 29, 1955, Swisher claimed, “I was offered a position in the Marine Corps Honor Guard in Tokyo Japan.”

In the past, Swisher conveniently maintained that the exact events of his combat exploits were “top secret,” so that he could not reveal them; thus, no one could analyze them or compare them to other known information or records.  Finally, it was Col. Dowlings team of experts that was able to negate Swisher’s claims and overcome the mystique of his feigned “secrecy.” 

On December 12, 1955, Swisher’s name was on the Roster of those left behind when the rest of the Company went to Okinawa.  The Records also shows that Swisher, in December 1955, went for eight days to You Kasha Japan.  Swisher, in his book (A Marine Remembers, page 8), made the claim that during this time (December 21, 1955) he had been recommended for meritorious promotion to Sergeant; but no records support this contention.  Moreover, this supposed promotion was inconsistent with his court-martial that occurred only 60 days later.

A few days later, “on January 2, 1956,” Swisher stated, “I was back from the hospital….”  Two days later he fictionalized, “on January 4, 1956, a situation occurred in the grenade pits near Gotemba, Japan.”  In his book, Swisher told a story about how he bravely saved lives of fellow marines.  He claimed he retrieved a hand grenade after the pin was pulled [similar to the Gomer Pile story].  This supposed incident was offered by Swisher as more evidence to build his false history of heroism.

The charges contained in the indictment and Swisher’s convictions were based on allegations that he lied about participating in military action to free American POWs.  Mr. Shaddock, the Government expert, testified at Swisher’s trial and said that he saw no evidence of any records about any secret activity occurring between August and September of 1955.  Mr. Shaddock further said, “Had Swisher been transferred,” to a combat unit in Korea in August through November of 1955 it would have been in the [official] Record.”  There was no covert military operation during September 1955 into North Korea. 

Also “there was no status entry for claims [by Swisher] made as of January 31, 1956.”  The official U.S. military record shows that from March 4th to May 6th, 1956, Swisher was stationed at Middle Camp Fuji and Yokosuka, Japan with no travel to Korea, no combat, no hospitalizations, no wounds from bullets or shrapnel – the recovery from which would have required hospitalization and taken months to heal. 

During his tour with the Marine Corps, Swisher was eventually elevated to the rank of corporal.  However, his official U.S. military record indicates that he was subject to an Article 115 disciplinary action resulting in demotion on February 28th, 1956, from Corporal to Private First Class.  Swisher maintains that he “was arrested on trumped up charges and received a Summary Court Martial for drinking alcohol in a Navy corpsmen quarters.”  Whatever the true reason, this stands as evidence that he was a discipline problem and not a combat hero.

Swisher’s official U.S. military record shows that from March 4th to May 6th, 1956, as stated above, rather than being assigned to a combat mission in post-War Korea (as he claimed) he continued to be stationed at Camp Fuji and Yokosuka, Japan.  “Possibly in May of 1956,” Swisher admitted, “ l was sent back ‘stateside’ on a Destroyer Tender with 38 other Marines … In late August of 1956 I arrived at the Bangor Washington Naval Ammo Dump.” 

On February 10, 1957, Swisher was involved in a private car accident near Port Townsend Washington.  He was treated at the Naval Hospital at Bremerton, Washington.   After his discharge from active duty in 1957 he remained in the USMC Reserves for the next 8 years. 

 He also maintained that he incurred other shrapnel wounds during a grenade training accident in January 1956 near Middle Camp Fuji Japan all of which he claims disabled him.  Since hostilities had been concluded by January 1955, by September of that year the conditions necessary to meeting the minimum standard for awarding the Purple Heart could not have been met (i.e., injury from enemy fire in combat) – because there had been no combat since January.

In reference to Swisher’s supposed 1955 combat injuries, he stated in his book, “Later upon leaving the hospital [Third 3rd Battalion Medical Center] in mid-October [1955], I received a Navy Commendation Medal and Ribbon with Bronze ‘V’ and a Silver Star medal.”  He claimed that he suffered shrapnel and gunshot wounds “during the time he was in Korea.”  As a result he swore that he was awarded the Purple Heart Medal and other awards for his valor.

Swisher made yet another, unsupported claim of heroism saying that in “May or June, 1957,” he managed to save the life of an armed, “possibly homicidal Marine at the Bangor Washington Naval Torpedo Station.”   He claimed in his book that he would receive the Marine Corps medal (A Marine Remembers, page 22) for this act of daring and courage.

But in January 2001, after he had visited with veteran Mike Clausen, he began to seek increased VA benefits. The Ninth Circuit also noted, “Other medals Swisher wore or acquired, but did not earn, were the Silver Star Medal, Navy and Marine Corps Medal (with Gold Star in lieu of the Second Award) and the Purple Heart.  A Purple Heart is an award given to members of the United States military who are wounded in combat.”

[The] Marine Corps record has been carefully examined by the Military Awards Branch of the office of the Commandant of the Marine Corps, and that office has stated that his [Swisher’s] record fails to show that he was ever recommended for [or given] awards.  Further review of Mr. Swisher’s records reveals that he is not entitled to any service awards including the Marine Corps Expeditionary Medal for his service in the U.S. Marine Corps.  Mr. Swisher’s official military records failed to indicate any information that he served in Korea during the period when any awards were authorized.  There is no information in his military record or his medical record to substantiate his entitlement to a Purple Heart medal … and that Swisher’s record does not indicate that he earned any service record or service medals during his military duty.

Count Two, Perjury (making false statements):  The charges contained in the Indictment were based on allegations that the defendant lied about serving in a covert military operation into North Korea in September 1955 to free American POWs.  The evidence establishes that before putting Swisher on the stand on January 14, 2005 (in the David Hinkson trial), the government learned that the prior grand jury testimony by Swisher, about being wounded in the Korean War, was false. 

Swisher submitted to the VA a letter claiming injuries to his nose (he said occurred in field maneuvers in Iwo Jima, Japan), but the letter didn’t follow the proper procedure [more evidence of forgery].  A thorough investigation revealed that Mr. Swisher forged and/or falsified those records.  The National Personnel Records Center verified that the “Replacement” DD-214 was a fraud.  Yet he had contacted various government agencies, showing them his “Replacement” DD-214 in an attempt to legitimize his fraud – each time he showed the “Replacement” DD-214 was a separate crime of presenting a forged document as if it was authentic. 

In June 2004, Swisher defrauded the Veterans Administration with both his testimony and “Replacement” DD-214.  Retired Marine Corps Colonel W.J. Woodring Jr. confirmed in an affidavit that Swisher's “Replacement” DD-214 was a fraud.  Federal Prosecutor Jessica Fehr reminded the Jurors that Swisher’s deception had allowed him to receive $2,500 per month as disability benefits from the VA [in addition to medical benefits valued at over $100,000].  Swisher applied for VA benefits but was turned down.  On June 28, 1963, a decision was made by the VA not to increase his benefits.  By 2004, when he testified before the Federal Administrative Law Judge in connection with the VA, he was again seeking additional benefits–illegally.

Dennis Riordan, appellate attorney for David Hinkson, with 30 years practice (mostly in the 9th Circuit), made the following observation:

Count Three, Forgery (false DD-214): Swisher defrauded the Veterans Administration by doctoring documents.  A highly qualified Security Service government specialist, Annette Amerman, with a BS Degree and certified by the Independent Forensic Association (a 3 year program) demonstrated Swisher’s fraud and forgery.  She testified that Swisher’s “Replacement” DD-214 accompanying his support letter, supposedly from Woodring, was a forgery, which conclusion was supported by the Affidavit of Woodring. 

In fact, Chief Warrant Officer Miller, a Liaison Officer at National Personnel Records Center, gave his Affidavit explaining that: “Military Rules and Procedures require that a DD Form 214 can only be issued and retyped at the Headquarters of the USMC and signed by a designee of the Commandant of the Marine Corps [with] offices at Headquarters.”  At the time, Captain Woodring never held such designation. 

However [the original] Form DD-214 had been recorded in February 2001 (at the Idaho County Recorder‘s Office) rather than February 2004.  The earlier recorded Form DD-214 was identical to the later-recorded form with the notable difference that none of the medals, commendations or wounds was mentioned in the earlier recorded form.” 

The document was a forgery –  had any change been made in the discharge document it would have been done on a Form DD-215 rather than a form DD-214. Count Four, Theft (VA benefits without entitlement):  The Government proved that the defendant fabricated these stories to qualify for increased VA benefits and services.  Swisher came to the VA Hospital over a period of three years.  He got a pacemaker and heart surgery and treatments in 2002 from the VA Hospital in Spokane, Washington.  Stealing benefits reserved for honorable, deserving veterans is grand theft and despicable.

D – Swisher’s Case for Leniency

Having been convicted at his April 2008 trial, Swisher then “turned” on his two defense attorneys [Dunlap and Groom] and is now asking for a new trial.  He accuses them of conspiracy to deprive him of a proper defense, denial of the opportunity to tell his story to the jury in testimony and conflict of interest because they had previously represented Mr. Hinkson. 

Through his current Attorney Chris Bugbee, Swisher states that Attorney Groom told him “that the original carbon copy of the ‘reissued’ DD-214 and the original Woodring letter had inexplicably disappeared from [Groom‘s] office.”  Swisher alleges that Groom and Dunlap conspired to deprive him of the right to testify in his own behalf.  But on February 2, 2004, Swisher was the last one to have the “Replacement” DD-214

“Still the possibility exists,” said Mr. Bugbee, “that they [Dunlap and Groom] were truly influenced in their decision making by how their actions and how the outcome of Mr. Swisher's trial might later affect their former client, Mr. Hinkson.”

Mr. Bugbee relates that “Mr. Hinkson's supporters were transparently targeted [by Dunlap and Groom] against Mr. Swisher's interests and towards supporting Mr. Hinkson's effort to overturn his conviction.” 

However David Hinkson believes that Mr. Groom, a long time neighbor of Swisher as well as his friend and business associate, deliberately set him up.  Hinkson doesn’t even know and has never met Mr. Dunlap. 

David Hinkson was convicted in January 2005 of solicitation of murder-for-hire based solely on the testimony of Swisher.  No murders occurred nor did any solicitations for murder take place because Mr. Hinkson was outside the United States when Swisher claimed he was approached by Hinkson.  But Hinkson’s trial judge would not allow Hinkson’s passport to be admitted to disprove Swisher’s allegations – there was only Swisher’s testimony at Hinkson’s trial (accusing Hinkson of supposedly wanting Swisher to commit murders): and without the ability to show that Swisher was not a decorated national war-hero, it was impossible to counteract what he was saying. 

The jury believed Swisher, who has a very convincing manner.  He convinced them that he was a brave war-hero who had been approached by Hinkson to kill three Federal officials.  Few people would believe that a courageous, combat veteran – such as Swisher was supposed to be, who had gone on at least one expeditionary mission to save POWs in Korea – would lie under oath on the witness stand.

Yet there is testimony that Swisher had been blackmailing Hinkson to gain half of his lucrative WaterOz business.  When extortion did not work, Swisher sued Hinkson for $522,000.00 (in the Idaho County District Court) and sought to obtain ownership of WaterOz.  Again, the Trial Judge would not admit these facts into evidence.  Based solely on the testimony of one man – Elven Joe Swisher – David Hinkson was sentenced to 33 years in solitary confinement at the most severe penitentiary in the United States (Admax Florence, Colorado).

A – Has Swisher’s life been law-abiding?

Former Idaho County Deputy Prosecutor, Attorney Wesley Hoyt, investigated Swisher’s past criminal conduct and has spoken with numerous individuals who characterized Swisher as a “liar” that can be very convincing.  Mr. Hoyt points out that in the past, Swisher has been involved in numerous situations where claims of fraud have arisen.  One of Swisher’s former mine-industry business associates, a person who supposedly had a secret formula for rendering gold from ore, mysteriously died under suspicious circumstances with tire tracks over his body in a desolate area of Idaho.  Swisher was not charged, but ended up controlling that deceased party’s interest in the mining corporation.

In 1980, Swisher was charged with sexual molestation of all four of his daughters who testified against him.  During jury selection, fifteen prospective jurors were excused from service because they had received the so-called “Nutting” letter touting Swisher as a person who was being wronged by the prosecution.  Mr. Hoyt said his investigation showed the “Nutting” letter was duplicated and mailed to a large number of the residents of the Idaho County community by Swisher and a team of helpers, including children, whom he recruited to address and stuff envelopes.  This constitutes the uncharged criminal conduct of jury tampering and obstruction of justice.  When the jury that was finally seated – most of whom were from Swisher’s small town of Cottonwood, Idaho, and were unable to decide on two of the counts of molestation – it became a “hung jury.” 

A new trial on the two undecided counts was never brought to court because, among other things, the prosecuting attorney, Dennis Albers (a long time associate of Swisher), had talked with one of the jurors in the hallway of the court house shortly before final deliberations.  “By the time that the questions of prosecutorial misconduct were resolved and some other procedural questions were decided,” Hoyt said, “the window of opportunity for a speedy trial elapsed, and the remaining charges were dismissed on technical grounds.”

Further investigation by Mr. Hoyt, revealed that Swisher has had a large number of mining claims at his disposal.  Swisher put the claims in the names of other individuals to avoid the BLM annual $100 claim maintenance fee.  Under the new BLM law effective in 1992, the first ten fees were waiveable upon application by the owner of the claim.  Swisher owned in the early 1990’s, before the change in the law, between two and three thousand claims.  The fee to the BLM, over the past 15 years, could have amounted to over a million dollars (the number of claims times claims originally held by Swisher).

 In order to keep those claims alive so they would remain at his disposal and not become available to the public, Swisher would have had to pay to the BLM yearly as much as $200,000 to $300,000 in claim maintenance fees.  Rather than losing control over the claims and to avoid the fee, Swisher “deeded” numerous claims to other individuals in bundles of ten claims or less each.  Thus he’d have the supposed new “owner” sign a Maintenance Fee Waiver form (under oath) stating that they were the owner of the claims in question and were entitled to exemption from the fees.  By spreading “ownership” to numerous individuals, Swisher is able to avoid paying a large sum to the government and still retain tacit control over the claims. 

My investigation reveals that Swisher would file with the BLM in Boise, Idaho, a large number of Waiver forms each year purportedly signed by some other individual as if that person were the owner of the mining claims.  In some cases, those supposed owners of the mining claims were found to be fictitious persons or involve a fictitious address.  Of those claim-owners who existed, some said that the signature on the Waiver form was not theirs, and they had not authorized anyone to sign a form for them.

To understand how Swisher’s method of operation worked, he transferred claims to other people, such as Ron Miller of Idaho County, Idaho.  Mr. Miller stated that when he informed Swisher that he was going to do some prospecting on one of the claims listed in his name, Miller was told by Swisher, ‘Don’t go there.’ 

Restricting access to a mining claim is one of the incidents of ownership and should be considered a badge of fraud with reference to the BLM, for individuals such as Miller, who believed he was the true owner of the claim as stated in the BLM annual Maintenance Waiver form.

While the above is circumstantial evidence of fraud, some of the papers filed by Swisher were Maintenance Fee Waiver forms with forged signatures.  Two people from Swisher’s September 2, 2008, submission to the BLM contained affidavits where the signature on the form is not theirs and they did not give their permission to anyone to sign for them.  So far, some of the Idaho addresses have been determined to be at a location on which there is no residence, and the people named in other Waiver Forms did not exist (no driver’s license or other identification in Idaho).

Swisher is awaiting approval of validity testing by the Cottonwood office of the BLM on three mining claims: Golden Eagle, Golden Eagle I and II located in the Elk City area of Idaho.  If a patent is issued to Swisher and his partners (including Mr. Groom) he can sell capital stock in a mining company controlled by him or his associates that owns said claims and raise millions of dollars (this is known as ‘mining the public’) which is what he did in the Silver Crystal and Idaho Consolidated cases in the 1980s and 1990s. Lawsuits exposing Swisher’s past fraud in these cases were filed and have been settled.

 From the above investigation it cannot be said that Swisher had lived a law-abiding life.

Discussion

Now Mr. Bugbee implores the Court to grant Mr. Swisher a new trial and/or a minimum sentence.  He solicits bare minimum punishment and says, “Despite his convictions Mr. Swisher has lived a long and law-abiding life.  Until his arrest on this case he was well respected by friends and family and within his community,” and therefore requests downward departure [a reduction of the penal recommended guidelines].

In a deposition taken October 1, 2008, Swisher blames others for his conviction instead of taking responsibility for his own criminal acts.  Mr. Hoyt believes that downward departure would be a travesty of justice.  In fact, he believes that since Swisher used perjury to destroy the life of David Hinkson [who was given upward departure of 3 extra years plus 30 years based on Swisher’s testimony] the same measure should be applied to Swisher.  Otherwise, consider the impact Swisher could have if he was allowed to return home with an ankle bracelet and be able to do paperwork on his mining claims.  What damage he could do if he had millions of dollars at his disposal from his gold mines.

So many people have lost faith in our justice system in America and ask, how could the non-violent David Hinkson be convicted upon the sole testimony of a known liar such as Elven Joe Swisher and sent to prison for 33 years in solitary confinement while this blackmailing, lying, false accuser gets a slap on the wrist – then the fraudster is sent home to be with his wife to work on his documents for his gold mine claims?  Is justice blind or is it corrupt? 

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