{"id":56120,"date":"2014-10-30T11:00:59","date_gmt":"2014-10-30T15:00:59","guid":{"rendered":"http:\/\/valorguardians.com\/blog\/?p=56120"},"modified":"2014-10-30T16:00:47","modified_gmt":"2014-10-30T20:00:47","slug":"ninth-circuit-upholds-conviction-of-valor-thief-elven-swisher","status":"publish","type":"post","link":"https:\/\/www.azuse.cloud\/?p=56120","title":{"rendered":"Ninth Circuit upholds conviction of Valor thief Elven Swisher"},"content":{"rendered":"

\"Elven<\/a><\/center><\/p>\n

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. <\/p>\n

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.<\/p>\n

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<\/a>. <\/p>\n

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.<\/p>\n

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 \u00a7 704(a) as criminalizing ‘the unauthorized wearing of medals only when the wearer intends to deceive.'”<\/p>\n

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.<\/p>\n

“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 \u00a7 704(a) fails.”<\/p><\/blockquote>\n

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.<\/p>\n

I’m not a lawyer, but I think I got all of that right.<\/p>\n","protected":false},"excerpt":{"rendered":"

Former Marine Elven Swisher told the Veterans Affairs Department that he had been wounded on a … Ninth Circuit upholds conviction of Valor thief Elven Swisher<\/span>Read more<\/a><\/p>\n","protected":false},"author":1,"featured_media":56139,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[183],"tags":[],"class_list":["post-56120","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-stolen-valor-act"],"_links":{"self":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/56120","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=56120"}],"version-history":[{"count":0,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/56120\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/media\/56139"}],"wp:attachment":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=56120"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=56120"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=56120"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}