Metropolitan News-Enterprise


Friday, November 6, 2009


Page 1


Court Denies New Trial in Plot to Kill Judge, Prosecutor, IRS Agent


By a MetNews Staff Writer


A defendant who proffered evidence that the star prosecution witness had presented the trial court with a forged military document and repeatedly lied under oath about being a combat veteran is not entitled to a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a 7-4 en banc decision, the court affirmed David Roland Hinkson’s conviction on charges of soliciting the murders of U.S. District Judge Edward C. Lodge of the District of Idaho; Nancy Cook, the assistant U.S. attorney who prosecuted Hinkson for income tax evasion; and IRS Agent Steven Hines.

Hinkson, who reportedly earned millions of dollars as the founder of WaterOz, a company whose products were claimed to possess tremendous health benefits, and who contended that the government had no constitutional power to tax those earnings, is serving 43 years in federal prison.

Ninth Circuit Judge Richard C. Tallman, sitting by designation in the U.S. District Court in Idaho, sentenced him to 10 years on the original charges of tax evasion, structuring financial transactions to evade reporting requirements, and violating the food and drug laws, and 33 years for soliciting three murders.

Abuse of Discretion

Tallman subsequently denied Hinkson’s motion for new trial, which was based on the revelation that the government’s star witness at trial had lied in explaining his military background. In June 2008, a divided three-judge panel held that the denial of the new trial motion was an abuse of discretion, but the en banc court yesterday disagreed.

The witness, Elven Joe Swisher, had claimed to be a Korean War combat veteran. The government maintained throughout the trial that Hinkson’s understanding of Swisher’s military exploits demonstrated his seriousness in soliciting Swisher.

Although numerous witnesses testified regarding Hinkson’s feelings toward the three government officials and that Hinkson had asked many people whether they would be willing to commit murder, Swisher was the only witness who specifically testified that Hinkson solicited him to murder the three.

Swisher took the stand wearing a lapel pin that was a replica of a Purple Heart, given to members of the United States military who are wounded in combat.

During a sidebar, Hinkson’s counsel told the trial court that the defense doubted the veracity of Swisher’s claimed military background and had “been trying to dig into [Swisher’s] military history.”

Milit ary Records

Defense counsel also produced a letter from the military’s National Personnel Records Center indicating that Swisher was never awarded any decorations to substantiate the defense’s claims. However, when defense counsel cross-examined Swisher about the letter, Swisher pulled a document out of his pocket which purported to be a copy of his military record substantiating his claims.

The next day, outside the presence of the jury, defense counsel produced a copy of Swisher’s military record that counsel had obtained, which was identical to the record produced by Swisher, except that it did not mention any of the medals, commendations or wounds set forth in the record Swisher produced.

Defense counsel then sought and obtained a subpoena for Swisher’s full military record from the National Personnel Records Center.

Upon receiving and reviewing the file, Tallman was unable to conclude whether Swisher’s claims were false, or if he was involved in top secret military activities as he claimed.

In order to be persuaded, Tallman said that “a records custodian from the National Personnel Records Center or someone else who is more familiar with military records and decorations” would have to explain the file.

Evidence Excluded

After concluding that the documents in the file were neither “self-authenticating nor self explanatory,” Tallman ruled that the defense could recall Swisher for further examination, but could not introduce any of the documents bearing on his military experience.

The defense elected not to recall Swisher and the jury ultimately convicted Hinkson on the three counts of soliciting Swisher to commit murder. Hinkson was also charged with soliciting another man to commit the murders and with threatening to kill Lodge and Cook’s children, but those charges all resulted in juror deadlock or acquittal.

In moving for a new trial, the defense presented additional evidence that Swisher did not possess the claimed decorations. But Tallman concluded that the evidence was not substantively “new,” that the defense had not been diligent in obtaining it, that it was excludable under the Rules of Evidence, and that it was cumulative and “merely impeaching.”

Judge Carlos Bea, writing yesterday for the en banc court, said the court owed significant deference to Tallman’s determination that Swisher’s lies as to a collateral issue did not undermine confidence in the verdict.

To find that a district judge has abused his discretion in denying a new trial, Bea explained, the appellate court must either determine that the judge used an incorrect legal standard, or that denial of the motion was “illogical,” “implausible,” or lacking “support in inferences that may be drawn from the facts in the record.”

In this case, Bea said, Tallman correctly identified the Ninth Circuit’s five-part test—based on United States v. Harrington (9th Cir. 2005) 410 F.3d 598—requiring a showing that the evidence supporting the motion be newly discovered, that it have been diligently pursued, that it be material, that it not be cumulative or merely impeaching, and that it indicate a probability of acquittal at a new trial.

Denial of the motion, Bea went on to say, was not illogical or implausible, because if—as the prosecution theorized—Hinkson tried to hire Swisher as a killer because Hinkson believed him to be a combat veteran, it was of little relevance that he really wasn’t one.

Chief Judge Alex Kozinski and Judges Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, Consuelo M. Callahan, Sandra S. Ikuta and N. Randy Smith joined in the opinion.

Judge William Fletcher, who wrote the panel opinion last year, dissented, joined by Judges Harry Pregerson, Kim M. Wardlaw and Richard A. Paez.

Fletcher said the district judge misapplied Harrington.

The affidavits Hinkson introduced were newly discovered because they were neither known to or in the possession of either party during trial, the jurist said. The evidence was also precisely what Tallman had found fatally lacking during trial, Fletcher noted.

Fletcher wrote that Hinkson had been diligent in investigating Swisher’s military record because the defense had begun investigating it immediately after Swisher’s deposition and produced impeaching evidence as soon as it could be obtained from military authorities to continually challenge Swisher’s claims.

He also concluded that Federal Rule of Evidence 608(b) would not bar introduction of Hinkson’s new evidence as extrinsic evidence attacking a witness’s credibility because Swisher had worn the Purple Heart pin, indicating that he had been wounded in combat while serving in the United States armed forces.

Wearing that pin was nonverbal conduct intended as an assertion, Fletcher opined, and evidence contradicting a witness’s statement is not barred by the rule.

The case is United States v. Hinkson, 05-30303.


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