526 F.3d 1262 (9th Cir. 2008), 05-30303, United States v. Hinkson

Docket Nº:05-30303
Citation:526 F.3d 1262
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Roland HINKSON, Defendant-Appellant.
Case Date:May 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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526 F.3d 1262 (9th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


David Roland HINKSON, Defendant-Appellant.

No. 05-30303

United States Court of Appeals, Ninth Circuit.

May 30, 2008

Argued and Submitted May 7, 2007.

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[Copyrighted Material Omitted]

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Dennis P. Riordan, Riordan & Riordan, San Francisco, CA, Curtis R. Smith, Idaho Falls, Idaho, for the appellant.

Michael D. Taxay, Counter-Terrorism Section, Alan Hecht Kopf, and Elissa Hart, Tax Division, United States Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the District of Idaho Richard C. Tallman, [*] Presiding. D.C. No. CR-04-00127-RCT.

Before: PROCTER HUG, JR., M. MARGARET McKEOWN, and W. FLETCHER, Circuit Judges.

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Following a two-week trial in federal district court in Boise, Idaho, a jury convicted David Roland Hinkson of soliciting the murder of three federal officials. The government's star witness supporting the conviction was Elven Joe Swisher. Wearing a Purple Heart lapel pin on the witness stand, Swisher testified that he had told Hinkson that he was a Korean War combat veteran and that Hinkson, impressed by Swisher's military exploits, solicited him to kill the officials.

The government maintained in its opening statement to the jury that Swisher was a Korean War combat veteran, and it maintained throughout the trial that Hinkson's understanding of Swisher's military exploits showed that he was serious in his solicitations of Swisher. The government now concedes that Swisher neither served in combat nor earned any personal military commendations, and that Swisher presented a forged military document in court and repeatedly lied under oath at trial about his military record.

On appeal, Hinkson makes three arguments. First, he argues that the district court wrongly precluded him from introducing evidence showing that Swisher presented a forged document and lied on the stand. Second, he argues that the prosecutor engaged in misconduct when he invoked Swisher's military service in his closing argument despite having substantial reason to suspect that Swisher had not been truthful. Third, he argues that he is entitled to a new trial based upon his discovery after trial of evidence that conclusively establishes Swisher's fabrications.

We agree with Hinkson's third argument. Because Hinkson's conviction substantially rests upon the testimony of a witness who had been conclusively shown, by the time Hinkson moved for a new trial, to be a forger and a liar, we hold that the district court abused its discretion in denying Hinkson's motion for a new trial. We do not reach Hinkson's first and second arguments.

I. Background

In an indictment filed on September 21, 2004, a federal grand jury in Idaho charged Hinkson with soliciting the murders of Assistant U.S. Attorney Nancy Cook, IRS Special Agent Steven Hines and U.S. District Court Judge Edward J. Lodge. All three officials had been involved in the investigation and prosecution of Hinkson on tax and currency structuring charges. Hinkson appeals his conviction on those charges in a companion case. We affirm that conviction in a separate memorandum disposition.

The superseding indictment in this case contained eleven counts. Counts 1-6 charged that Hinkson, in violation of 18 U.S.C. § 373, sought to persuade an acquaintance named James Harding to murder Cook, Hines and Lodge, first in January 2003 (Counts 1-3) and again in March 2003 (Counts 4-6). Counts 7-9 charged that Hinkson, again in violation of 18 U.S.C. § 373, sought in December 2002 or January 2003 to persuade Swisher to murder Cook, Hines and Lodge. Counts 10 and 11 charged that Hinkson, in violation of 18 U.S.C. § 115, personally threatened to kill the children of Cook and Hines.

Hinkson was convicted on only the Swisher-related counts, Counts 7-9. The jury acquitted Hinkson on Counts 1-3, 10, and 11, and deadlocked on Counts 4-6. Because this appeal involves only the Swisher-related counts, we focus our discussion on them.

At several points during Hinkson's trial, the prosecutor emphasized Swisher's military

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background, and Hinkson's understanding of that background, in an effort to show the seriousness of Hinkson's solicitations. In his opening statement to the jury on January 11, 2005, the prosecutor stated that Swisher "was a Marine, a Combat Veteran from Korea during the Korean conflict. He was not adverse to this kind of violent, dangerous activity; but he wanted no part of murdering federal officials." However, during direct examination of Swisher three days later on January 14, the prosecutor did not ask Swisher whether he was, in fact, a Korean War combat veteran. Rather, the prosecutor asked only what had been his branch of service and what he had told Hinkson about his military experience in Korea.

Swisher came to the witness stand wearing a replica of a Purple Heart on his lapel. A Purple Heart is an award given to members of the United States military who are wounded in combat. Swisher testified that he first became acquainted with Hinkson in 2000. According to Swisher, he had done some consulting work for Hinkson's company, WaterOz, and the two men had developed a friendship. Swisher testified that he had served in the Marine Corps. He testified further that he discussed his military exploits with Hinkson on several occasions and told Hinkson that he had been in combat in Korea as a Marine. According to Swisher, Hinkson asked whether he had ever killed anyone, to which Swisher said he responded, "Too many."

Swisher testified that on various occasions in 2001 and early 2002, he and Hinkson discussed Hinkson's legal problems, particularly a civil suit brought against Hinkson by a former WaterOz employee. Swisher testified that Hinkson expressed "considerable" anger toward the employee's lawyer, Dennis Albers, and spoke in graphic detail about wanting to see Albers and his family "tortured and killed." Swisher testified that Hinkson offered him "$10,000 a head to do it," but Swisher "told [Hinkson] he was out of his mind and he needed to knock that kind of BS off."

Swisher testified that in July or August of 2002, Hinkson began to focus on his problems with federal officials. According to Swisher, Hinkson stated that Cook and Hines "had been harassing him a great deal," "abused the judicial system," "cost him a lot of money," and "didn't deserve to live." Swisher testified that Hinkson asked him if he "remembered the offer he made regarding Mr. Albers and his family" and "said he wanted that done, basically, with Ms. Cook and her family and Mr. Hines and his family." Swisher testified that Hinkson told him, "I know you're used to it. I mean, you have killed people [while serving in the military]." Swisher testified that he replied that he would report Hinkson to the authorities if Hinkson "continue[d] talking that way."

Swisher testified that after Hinkson was arrested on tax charges in November 2002, he and Swisher had further conversations. According to Swisher, Hinkson "was extremely hostile to all of the people who had been involved in that arrest." In January 2003, Hinkson "went through the names of the people that had offended him, and added a federal judge by the name of Lodge to that list." Swisher testified that Hinkson then offered him "[a]t least $10,000 a head" to have "them all treated the way that the initial offer regarding Albers and his family had been handled" --that is, "[t]ortured and killed." Swisher testified that Hinkson spoke in a "pleading fashion" about how "he just had to have this done." Swisher replied that he "never wanted to hear that again." After that January 2003 exchange, the two men had a serious falling out, eventually resulting in a lawsuit and a nasty feud. Swisher testified that sometime after April 2003 he

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reported Hinkson's solicitations to a local Idaho prosecutor. At the time of his testimony at Hinkson's trial in January 2005, Swisher was a bitter enemy.

On cross examination, defense counsel did not initially inquire into Swisher's military background. Instead, counsel sought to discredit Swisher by identifying inconsistencies in his testimony and by emphasizing the ongoing feud between Swisher and Hinkson. However, after having indicated that he had no further questions for Swisher, counsel asked to approach the bench. At the sidebar, he told the court, "For quite some time, [the defense has] been trying to dig into [Swisher's] military history." Counsel explained that, "[b]ecause of his age and because of the time of the war, we don't believe he was in the war. We also don't believe that he got a Purple Heart or was in combat." Counsel then told the court that he had just been "handed a letter from the National Personnel Records Center indicating that . . . the records fail to show that [Swisher] ever was recommended for or awarded any person[al] decorations." Defense counsel noted for the record that Swisher was "wearing a Purple Heart on the witness stand, in the presence of the jury."

Still at the sidebar, the prosecutor responded that he never asked Swisher about "winning medals or combat" and had merely asked about "a conversation that [Swisher] had with Mr. Hinkson and what Mr. Hinkson asked him about." The prosecutor did not mention that three days earlier, in his opening statement to the jury, he had stated as a fact that Swisher was a combat veteran from the Korean War. The prosecutor also stated at the sidebar, "For the record, he has a little --I don't know --you know, something stuck in his lapel. If somebody knows what that is, fine. No one has said what...

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