U.S. v. Hinkson

Decision Date05 November 2009
Docket NumberNo. 05-30303.,05-30303.
Citation585 F.3d 1247
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David Roland HINKSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
585 F.3d 1247
UNITED STATES of America, Plaintiff-Appellee,
v.
David Roland HINKSON, Defendant-Appellant.
No. 05-30303.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 16, 2008.
Filed November 5, 2009.

[585 F.3d 1250]

Dennis P. Riordan and Donald M. Horgan, San Francisco, CA, and Curtis R. Smith, Idaho Falls, ID, for the defendant-appellant.

John F. De Pue and Michael D. Taxay, Department of Justice, Washington, D.C., for the plaintiff-appellee.

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

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, KIM McLANE WARDLAW, W. FLETCHER, RICHARD A. PAEZ, CONSUELO M. CALLAHAN, CARLOS T. BEA, SANDRA S. IKUTA and N. RANDY SMITH, Circuit Judges.

Opinion by Judge BEA; Dissent by Judge WILLIAM A. FLETCHER.

BEA, Circuit Judge:


Today we consider the familiar "abuse of discretion" standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.

585 F.3d 1251
* * *
Introduction

David Hinkson refused to pay income tax on his business profits. He asserted the United States Constitution forbade the federal government from taxing a person's income. He was investigated by Internal Revenue Service Agent Steven Hines, prosecuted to a conviction for income tax evasion by United States Attorney Nancy Cook, and sentenced by United States District Judge Edward Lodge.

While awaiting trial on his tax evasion case, Hinkson solicited his friend and employee Elven Joe Swisher to torture and kill Hines, Cook, and Lodge, for $10,000 per head. Swisher reported Hinkson's solicitations to federal authorities.

Hinkson was indicted, tried, and convicted by a jury for solicitation of the murder of the three federal officials. Swisher testified on behalf of the government.

Hinkson then moved for a new trial principally on grounds that Swisher had fraudulently presented himself to Hinkson, and later to the judge and jury, as a Korean War veteran with experience in killing people, but he had no such war service nor experience. In brief, Swisher had falsely held himself out to be a war hero. The trial court denied the new trial motion.

Hinkson appealed this denial of his new trial motion and several evidentiary rulings made by the trial court.

We granted en banc review of the panel's decision to reverse the district court's denial of Hinkson's new trial motion and, for the reasons explained below, we conclude that our "abuse of discretion" standard is in need of clarification. The standard, as it is currently described, grants a court of appeals power to reverse a district court's determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a "definite and firm conviction that a mistake has been committed." At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court's finding is "permissible."

Because it has previously been left to us to decide, without further objective guidance, whether we have a "definite and firm conviction that mistake has been committed," or whether a district court's finding is "permissible," there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we re-state the "abuse of discretion" standard of review of a trial court's factual findings as an objective two-part test. As discussed below, our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Applying our "abuse of discretion" test, we affirm the district court's rulings.

Background

Hinkson owned and operated a Grangeville, Idaho water-bottling company called WaterOz, which sold bottled water with purported health benefits.

Elven Joe Swisher was a water safety tester for a nearby independent water testing company. In 2000, Hinkson hired Swisher to test the WaterOz water on an ongoing basis. Hinkson and Swisher became fast friends. Swisher told Hinkson he was a veteran of the United States

585 F.3d 1252

Marine Corps and a firearms expert who had killed a number of people in the Korean War. Swisher would later testify this seemed greatly to impress Hinkson.

In April 2002, according to Swisher, Hinkson asked him to torture and kill local attorney Dennis Albers and his family because Albers had been causing legal trouble for Hinkson. Hinskon offered Swisher $10,000 per "head" in payment. Swisher thought Hinkson was joking and brushed off the suggestion.

Meanwhile, Hinkson was refusing to pay federal income tax on his WaterOz profits, asserting that the Constitution prohibits the federal government from collecting income tax. Assistant United States Attorney Nancy Cook and Internal Revenue Service Special Agent Steven Hines led an investigation into Hinkson's possible tax evasion.

Swisher would later testify that in July or August 2002, Hinkson asked him if he remembered his request regarding Albers and his family. Swisher said he did, and Hinkson told Swisher he wanted Cook and Hines and their families "treated in the same way as Albers." "I know you're used to it," Hinkson prodded Swisher, "I mean, you have killed people." Swisher, less convinced this time that Hinkson was joking, refused and threatened to report Hinkson to authorities.

In November 2002, Cook and Hines executed search warrants on Hinkson's home; Hines arrested Hinkson on tax evasion charges.1 The magistrate judge freed Hinkson on bail pending trial. Judge Edward J. Lodge of the United States District Court for the District of Idaho was assigned the case.

While Hinkson was on pretrial release on the tax evasion charges, Swisher later testified, Hinkson once again asked Swisher to torture and kill Cook and Hines and their families; this time he also added Judge Lodge to the list. Hinkson again offered Swisher $10,000 per "head," and even "pleaded" with Swisher to do the deed, calling Swisher his "best friend." Swisher declined.

The relationship between Swisher and Hinkson soon soured. A WaterOz employee named Richard Bellon sued Hinkson for control of WaterOz, and Hinkson in turn sued Swisher. Swisher counterclaimed against Hinkson for more than $500,000.

In January 2003, Hinkson met bodyguard-turned-restaurant manager James Harding at a "health forum" in Southern California. Hinkson offered Harding a job at WaterOz and invited him to stay in Hinkson's home. Harding later testified that, during his stay, Hinkson handed him a "large amount" of cash and offered him $20,000 total if he would kill Cook, Hines, and Lodge. Harding refused. In March 2003, Hinkson again asked Harding to kill Cook, Hines, and Lodge. Harding again refused. After this second request, Harding called the FBI and reported Hinkson's solicitations.

Shortly thereafter, in Spring or Summer 2003, Swisher told an Idaho state prosecutor that Hinkson had solicited him to kill Cook, Hines, and Lodge. Swisher then contacted the FBI and told the FBI the same.

On September 21, 2004, a federal grand jury in Idaho indicted Hinkson for soliciting the murders of Cook, Hines, and Lodge. The indictment contained 11 counts:

Counts 1 through 3 charged Hinkson

585 F.3d 1253

with violating 18 U.S.C. § 3732 when he solicited Harding to torture and kill Cook, Hines, and Lodge in January 2003.3

Counts 4 through 6 charged Hinkson with violating 18 U.S.C. § 373 when he solicited Harding to torture and kill Cook, Hines, and Lodge a second time, in March 2003.4

Counts 7 through 9 charged Hinkson with violating 18 U.S.C. § 373 by soliciting Swisher to torture and kill Cook, Hines, and Lodge.5

Counts 10 and 11 charged Hinkson with violating 18 U.S.C. § 1156 by threatening to kill the children of Cook and Hines.7

Trial

Hinkson's two-week jury trial began January 11, 2005. The government's opening statement revealed its theory of the case as to counts 7-11: that Hinkson solicited Swisher in particular to murder Cook, Hines, and Lodge because Hinkson believed Swisher was a battle-hardened Marine veteran with numerous military kills to his name. The prosecution also stated that Swisher was, in fact, such a battle-hardened veteran.8

The government called Swisher to testify three days later. On direct examination, although the prosecutor asked whether Swisher had served in the "Armed Forces"—and Swisher testified accurately that he had served in the U.S. Marine Corps—the prosecutor did not ask whether Swisher had engaged in combat or earned any decorations. Instead, the prosecutor confined his questions to what Swisher had told Hinkson of his combat experience. Swisher explained he had told Hinkson he was a Korean War veteran with substantial combat experience. Swisher also testified that Hinkson had solicited him to torture and kill Cook, Hines, and Lodge.

On cross-examination, Hinkson's attorney first sought to impeach Swisher's credibility by establishing that Swisher harbored animosity toward Hinkson. He asked about litigation involving the two former friends, and the bitter feud that

585 F.3d 1254

had developed between them. Hinkson's attorney also attacked inconsistencies in Swisher's testimony.

After he had finished his cross-examination of Swisher for such animosity toward Hinkson, Hinkson's attorney asked for a sidebar conference with the judge and opposing counsel, outside the hearing of the jury....

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