U.S.A v. Hinkson

• Decision Date: 14 July 2010
• Docket Number: No. 05-30303.,05-30303.
• Citation: 611 F.3d 1098
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.David Roland HINKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 1098

UNITED STATES of America, Plaintiff-Appellee,

v.David Roland HINKSON, Defendant-Appellant.

No. 05-30303.

United States Court of Appeals, Ninth Circuit.

July 14, 2010.

John F. De Pue, Esquire, Michael D. Taxay, Esquire, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.

Dennis P. Riordan, Donald M. Horgan, Riordan & Horgan, San Francisco, CA, Curtis R. Smith, Esquire, Thompson Smith Woolf Anderson, PLLC, Idaho Falls, ID, for Defendant-Appellant.

D.C. No. CR-04-00127-RCT, District of Idaho, Boise.

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.

Order; Dissent by Chief Judge KOZINSKI; Dissent by Judge WILLIAM A. FLETCHER.

ORDER

Appellant's Petition for Rehearing by the Limited En Banc Court and for Rehearing by the Full Court is denied. Chief Judge Kozinski and Judges Pregerson, Wardlaw, W. Fletcher, and Paez voted to grant the petition. The remaining judges voted to deny it.

The original en banc opinion filed on November 5, 2009 remains unchanged, except that Chief Judge Kozinski concurs only in the portion of the opinion that clarifies this court's abuse of discretion standard of review, but dissents from the application of that standard to the facts of this case as stated in his partial dissent filed today with this order. The original en banc dissent filed by Judge W. Fletcher on November 5, 2009 is vacated and replaced by the attached dissent filed today with this order.

No further petitions for rehearing will be accepted.

Chief Judge KOZINSKI, dissenting:

I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud. My change of heart came about after I read the Supreme Court's summary reversal in Porter v. McCollum, --- U.S. ----, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), and the amicus brief of William Mac Swain filed in our case. Without Swisher, the government had no case. I'm now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full.

W. FLETCHER, Circuit Judge, dissenting, joined by KOZINSKI, Chief Judge, and PREGERSON, WARDLAW, and PAEZ, Circuit Judges:

I dissent.

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.

Hinkson makes three arguments on appeal. First, he argues that the district court wrongly excluded documentary 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 lied about that service. Third, he argues that the district court abused its discretion in denying his motion for a new trial based upon his discovery after trial of new evidence conclusively establishing that Swisher had lied on the stand.

I would reverse the district court based on Hinkson's first and third arguments. I would hold that the district court abused its discretion when it excluded documentary evidence that would have contradicted Swisher's claim on the stand that he was a decorated combat veteran. I would also hold that the district court abused its discretion when it denied Hinkson's motion for a new trial. I would not reach Hinkson's second argument.

I. Background

The majority opinion recites some of the background facts relevant to Hinkson's appeal. In my view, however, the majority's recitation is too truncated. I begin by providing the background necessary to understand what went on during Hinkson's trial, and to understand why I believe the district court abused its discretion.

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 appealed his conviction on those charges in a companion case. The three-judge panel of which I was a member affirmed that conviction in a separate memorandum disposition.

The superseding indictment in the case now before us 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 in December 2002 or January 2003, Hinkson, again in violation of § 373, sought to persuade Swisher to murder Cook, Hines, and Lodge. Finally, 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. This appeal involves only the Swisher-related counts.

At several points during Hinkson's trial, the prosecutor emphasized Swisher's military 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 affirmatively 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. Somewhat oddly, given his affirmative statement to the jury only three days earlier, the prosecutor asked Swisher only 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. In response to the prosecutor's questions, 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 had asked whether he had ever killed anyone, to which Swisher said he had 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 shortly after April 2002, 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 had further conversations with Hinkson. 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 ...