A cesspool of Judicial Corruption

FOUR the chief accuser testifies at trial

Back in the Federal Building in Boise David sat quietly at the Counsels' table next to his Attorneys, Wes Hoyt and Tom Nolan. The trail preliminaries concluded after a few days, and various persons testified. The only witness whose testimony ultimately survived on behalf of the government's prosecution team was Swisher.

At mid-time during the Trial (on January 14, 2005–9:13 a.m.), AUSA Michael P. Sullivan called to the stand the government's star witness, 68 year old "War Hero" Elven Joe Swisher. He approached the stand wearing his favorite black leather jacket with a Purple Heart lapel-pin proudly displayed. He took the Oath–"Tell the truth, the whole truth . . ."

"I do."

Sullivan then asked Swisher to relate his educational and professional background.

"I received a Master's Degree from Columbia. I was six hours away from completing my dissertation for a PhD in psychology and Sociology."

My understanding of his testimony was that he did not complete his doctorate because of health reasons. Also in an earlier deposition, he testified that he was four hours away from getting a PhD. I don't understand what he meant by "six hours" or "four hour away" from getting a doctorate. But it sounded good, and the Jurors were impressed. Then he added, "I was certified as a social worker,[but] I switched careers in the early seventies to metallurgy and mining."

Throughout Sullivan's questioning, Swisher detailed how David had approached him, offered money and wanted him to kill three federal officials.

Obviously, testimony from such an apparently credible witness made an indelible impression on the minds of everyone listening. A friendly reverence and cordiality prevailed. After moments of silence following Sullivan's question, David's lead counsel, Mr. Tom Nolan (from California) approach Swisher to cross-examined him; he asked,

"Were you hired in a federal case as an expert witness against Mr. Hinkson?"

Swisher claimed that due to his age he needed to refresh his memory of his prior testimony in an earlier case by reviewing the transcript, as he could not remember his prior grand jury testimony. The Judge granted him permission. Thus, he was able to fashion a somewhat consistent response to earlier testimony.

But just before Attorney Nolan rested David's defense, something dramatic happened. At approximately 1:57 p.m. Sandy Hoyt, the wife and secretary of Attorney Wesley Hoyt, entered the Court Room disrupting the proceeding by waving a document. The impact of that document was explosive and could trigger a mistrial. Within ten minutes, the Judge ordered an unscheduled recess.

We sat nervously wondering if this was the turning point, and the Judge would declare a mistrial. Of course, Faye and I already knew that Swisher was a liar.

I reflected back on my first meeting with this witness. He had called me on the phone telling me how impressed he was with David and his products, and that he is planning a business trip to New Mexico and could enroot drive through Ouray, Colorado, where we live. He said he'd like to help us with an issue we were facing but needed us to help pay for the extra gas. We agreed.

Joe Swisher and his wife, Barbara, arrived on June 3, 2001. We put them up as house guests for a couple of days. Joe told us that he was a Korean War combat veteran and had fought in a Korean War skirmish. He allowed me to see a copy of his booklet, A Marine Remembers. I was impressed. I didn't know his age, but he appeared to be close to my age. Since I received an Honorable Discharge from the U.S. Army in July of 1948, I never doubted that Swisher could have served in the Korean War. He talked about the healing benefits of WaterOz products and of his spiritual beliefs.

To my shock and chagrin, I got a call from David on July 19th, 2001, telling me that Jeri Gray (the WaterOz office manager) paid Swisher $2,500, and charging me, for coming to Ouray while enroot to New Mexico. We had graciously hosted them and fed them for two days. And this was our reward. I immediately called David's attorney, Britt Groom, the man who originally introduced Swisher to David. I told Groom that Swisher is a thief and liar. But, at that time, I had no reason to believe he is also a fraud.

At Trial Swisher's testimony shocked everyone. He testified to nearly all the accusations published about David in the media. In addition, he had talked about how much money David promised him and that he was entitled to certain land and equipment–"as promised," he said.

When Attorney Hoyt learned that Swisher would be a government witness against David, without hesitation, Hoyt began his due diligence investigation.

Swisher was born January 13, 1937. The Korean War began June 25th, 1950, and lasted until July 27th, 1953. A moment's calculation suggested a problem. How could Swisher have been in the Korean War at age thirteen? And by time the war concluded, he'd be only about 16 years old. But his booklet, A Marine Remembers, made the timing appear more plausible. Now he was on a "Special Secret-Mission." Not even the Marine Corp would have knowledge of this episode–"It was top secret," he proclaimed.

The Hoyts contacted the National Personnel Records Center immediately. But they told the Hoyts that Swisher's file was currently unavailable. However, during the Trail Sandy Hoyt was successful in getting a preliminary response from the Records Center. Chief Warrant Officer W. E. Miller, United States Marine Corps (USMC), informed her and sent her a letter concerning Swisher's discharge document (DD-214). Archives Technician Bruce R. Tolbert signed the letter (later referred to as the Tolbert Letter).

When Sandy Hoyt entered the Court Room (on January 14th, 2005), she was waving this document. All of Swisher's testimony against David could become suspect in the minds of the jurors if the jurors were to learn of the contents of this document and if Swisher turned out to be a fraud.

On Wednesday, January 19, while Swisher was testifying on the stand, Attorney Nolan asked him about the Purple Heart lapel-pin on his chest. Swisher reached into his pocket and pulled out an Idaho certified copy of his DD-214, which did confirm that he, in fact, had earned the Purple Heart. Then Prosecuting Attorney Michael Sullivan held up a duplicate copy of the same DD-214. But both were in conflict with the Tolbert Letter.

At this point Noland asked to approach the Bench. At sidebar outside the presence of the jury, Nolan and Hoyt told the Judge that they now have information indicating that the document Swisher had taken from his pocket while on the witness stand (the so-called "replacement DD-214") was provably fraudulent.

Attorney Hoyt asked AUSA Sullivan, "When did you learn about the DD-214 [that Swisher had held up].

Sullivan said he had received a copy earlier that morning.

"Why didn't you tell us," Hoyt retorted.

"Why should I?'

Nolan called for a mistrial because the government had withheld exculpatory evidence. But Judge Tallman denied the motion for a mistrial, stating:

"The court finds, as a matter of fact, that if Swisher’s document is a copy of a genuine military record–and at this point, I don’t have any way to determine that–but it appears to be genuine, at least in appearance." He left the sentence dangling. Tallman cleared the Jury from the Courtroom. He then said,

"Until the government received the Tolbert Letter it had no reason to believe that Swisher’s document was 'discloseable' under Brady or Giglio because it was not impeaching."

So Judge Tallman decided to instruct the jury to strike that portion of the cross examination of Swisher's that relates to the Purple Heart. Yet, he failed to address the real issue: "Was Swisher a credible witness, or is he a liar." An apparent felony was committed in the presence of an appellate court judge, but the Judge just brushed it under the rug.

When the jury returned, Tallman said, "Ladies and gentlemen, it’s been a long day; and I now realize that I made a mistake in allowing the questioning with regard to the Purple Heart Medal."

When David's life was at stake, wouldn't it have been prudent and reasonable to, at least, verify the credibility of a witness' testimony. An honorable, fair-minded judge would have done so.

The Defense told Tallman that the National Personnel Records Center stands by the Letter of January 14th, and that they will provide an authentic, certified copy of his DD-214 but only in response to a subpoena signed by the Court. Judge Tallman signed a subpoena later that day.

Two days later, on Friday morning, January 21, again outside the presence of the jury, the prosecutor provided a photocopy of a letter to the Court "for in-camera review" [for the Judge in his chambers]. But a new question arose. When did the government get copies of the documents? In other words, when did the government, in fact, know about the fraudulent DD-214.

A letter from Lieutenant Colonel K.G. Dowling, Assistant Head of the Military Awards Branch of the Marine Corps went to Ben Keeley (now deceased) of the Idaho Division of Veterans Services.

The Record refers to a letter called the "Dowling Letter"– dated December 30, 2004. What appeared to be a "received" stamp had the date "January 10, 2005." Upon close examination it can be detected– that this date had been altered–Was this alteration a crime committed by the FBI? At the top of the letter was a fax line dated Thursday, January 13, 2005. It had a caption, "ID. STATE VETERANS SVS" in Lewiston, Idaho (where Keeley’s office was located).

January 13 was the day before Swisher took the stand to testify against David. The prosecution gave various answers about when it received the Dowling Letter or learned of its existence. This is important because it shows that the government was hiding exculpatory evidence. If the Justice Department and Judge wanted to dig out the truth, why would they alter evidence or suborn the truth?

On the morning of January 21st, Sullivan gave the Letter to the District Court (Tallman). The Prosecutor stated that he "believed Agent Long got the letter the day before by going to the Veterans’ Administration." Later, in his opposition to David's motion for a new trial, Sullivan stated in his brief that the letter was "obtained by federal investigators a few days earlier from the Boise Veteran’s Affairs office."

The Ninth Circuit assigned Tallman by designation to the step down role as district judge to replace Judge B. Lynn Winmill (who recued himself). Tallman was actually a Ninth Circuit Court of Appeals judge).

Michael P. Sullivan and Michael Taxay composed the Federal Prosecution Team. They stated that, "government investigators obtained the letter on or about January 20." They claimed they first learned of the Dowling Letter on January 18 or 19 at the Boise, Idaho, office of the Department of Veterans' Affairs. There is no indication in the record that either Nolan or Hoyt had any idea of the existence of the Dowling Letter until the government provided it to the Court on January 21.

The Dowling Letter indicated that Keeley had earlier contacted the Personnel Management Support Branch of Marine Corps Headquarters, after Swisher attempted to use his "replacement DD-214" to obtain veterans’ benefits from the Idaho Division of Veterans Services. What this meant is that Swisher must have determined that perjury might be the only way he could wiggle out of exposure for stealing benefits from the Veterans Administration–to the tune of thousands of dollars ($200k in benefits).

Dowling wrote back to Keeley:
We have thoroughly reviewed the copy of the Certificate of Release or Discharge from Active Duty (DD Form 214) and supporting letter which you submitted on behalf of Mr. Swisher with your request. The documents you provided do not exist in Mr. Swisher’s official file. The official DD Form 214 in his record of the same date was signed by Mr. Swisher and does not contain any awards information in box 26, and contains no "wounds" information in box 27. Given this information, we have reason to believe that the documents you submitted are not authentic. Specifically, the DD 214 you submitted on behalf of Mr. Swisher indicates that Mr. Swisher is entitled to the Silver Star Medal, Navy and Marine Corps Medal (Gold Star in lieu of the Second Award), Purple Heart, and Navy and Marine Corps Commendation Medal with Combat V.

However, our review of his official military records, those of this headquarters, and the Navy Department Board of Decorations and Medals failed to reveal any information that would indicate that he was ever recommended for, or awarded any personal decoration. Additionally, the Navy and Marine Corps Commendation Medal, which is listed in block 26 of the DD 214 that you submitted did not exist at the time of Mr. Swisher’s transfer to the Marine Corps Reserve in 1957. On March 22, 1950, a metal pendant was authorized for issue in connection with a Letter of Commendation and Commendation Ribbon. On September 21, 1960, the Secretary of the Navy changed the name of the award to the "Navy Commendation Medal."

Thus, we now have irrefutable confirmation that Swisher is a fraud and perjurer. Would the fact that Swisher was capable of lying under oath cast a shadow on any of his testimony? What kind of impact would the revelation of Swisher's lies have on his circle of friends and acquaintances?

The government reluctantly admitted that the Jurors convicted David of murder-for-hire based solely on the testimony of one "witness," Elven Joe Swisher. Based on the testimony of this lying blackmailer, Deputy Marshal Meyer dragged David away in chains. David was yet to learn his fate.