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David Roland Hinkson v. United States of America

August 28, 2012




David Roland Hinkson ("Hinkson") moves to vacate his convictions for soliciting the murders of three federal officers, including a United States District Judge, an Assistant United States Attorney ("AUSA"), and a Special Agent of the Internal Revenue Service ("IRS") Criminal Investigation Division. See Case No. 1:04-cr-127-RCT. He insists he does not seek habeas corpus relief for his related criminal tax and money laundering convictions. See Case No. 3:02-cr-142-RCT (Hinkson's criminal tax case); Case No. 1:12-cv-196-RCT, Doc. No. 5, Defendant Hinkson's Ojbection [sic] to Court's Order at 2 (claiming that Hinkson's habeas petition does not raise issues related to his tax convictions).


In 2002, Hinkson was first indicted for financial crimes including money laundering, income tax evasion, failure to file income tax returns, and failure to collect and pay payroll taxes. The charges stemmed from the operation of Hinkson's Grangeville, Idaho, water-bottling company, WaterOz. See Case No. 3:02-cr-00142-BLW-RCT, Doc. No. 1, Indictment. Over a five-year period, Hinkson sold $12 million worth of water, claiming his product had medicinal properties that would cure various ailments. Id.

Thereafter, in 2004, while awaiting trial on his tax case, a federal grand jury in Idaho returned an eleven-count indictment against Hinkson for soliciting the murders of three federal officials involved in the tax case: United States District Judge Edward J. Lodge (originally assigned to preside over the matter), AUSA Nancy Cook (the prosecutor), and IRS Special Agent Steven Hines (the case agent). See Case No. 1:04-cr-00127-RCT, Doc. No. 37, Superceding Indictment. The first three counts charged Hinkson with violating 18 U.S.C. § 373 by soliciting a man named James Harding ("Harding") to kill the three officials in January 2003; counts four through six charged that Hinkson made a second such request to Harding in March of that year. Id. Counts seven through nine charged Hinkson with soliciting these same murders in December 2002 or January 2003, this time in a request to a friend and WaterOz laboratory services contractor, Elven Joe Swisher ("Swisher"). Id. The final two counts charged Hinkson with violating 18 U.S.C. § 115 for threatening to kill the children of AUSA Cook and Special Agent Hines. Id.

Hinkson's criminal tax trial was held before the undersigned in April and May of 2004.*fn1 A jury found him guilty of twenty-six counts on May 4, 2004. See Case No. 3:02-cr-00142-BLW-RCT, Doc. No. 307, Verdict. Sentencing on the tax counts was continued until the conclusion of Hinkson's murder-solicitation trial, which commenced before the undersigned in January of 2005.

Hinkson was represented at the murder-solicitation trial by retained attorneys Wesley Hoyt ("Hoyt") and Thomas Nolan ("Nolan"). The theory of the defense was that Hinkson was a blowhard whose words could not be taken at face value due to his "offensive" personality. See Case No. 1:04-cr-00127-RCT, Tr. 302. The prosecution, meanwhile, focused on Hinkson's flashing of a roll of cash to Harding when the contract murders were discussed, id. at 284, and Hinkson's belief that Swisher was an experienced combat veteran who had killed many people, id. at 291. Other evidence was introduced at trial to bolster the proof that Hinkson seriously intended to solicit the murders of his victims.

When Swisher was called as a witness to testify about counts seven through nine, he arrived at court wearing a replica of a Purple Heart on his lapel. Tr. 1116. On direct examination by the government, Swisher testified that he had befriended Hinkson while doing consulting work as a water safety tester for WaterOz. The pair had previously discussed Swisher's stint in the Marine Corps several times. Tr. 988. Swisher testified that he had told Hinkson of his combat experience in Korea. Id. When asked by Hinkson if he had ever killed anyone, Swisher replied that he had killed "too many." Tr. 988--89. Swisher also detailed Hinkson's devious plans for his victims. Hinkson told Swisher he wanted the victims and the victims' families "tortured and killed." Tr. 995. Specifically, Hinkson:

[S]aid he would like to see them stripped, bound, and gagged, and then burned with cigarettes or cigars. And then while [the victim] was down on his knees observing this occurring to his wife and any other family members that might be present, he wanted to have a plastic bag put over her head so that she would suffocate to death in front of him, along with other family members. Then he wanted that procedure repeated on [the victim] himself.

Tr. 996. Swisher testified that in July or August of 2002, Hinkson said he wanted this sadistic ordeal carried out against AUSA Cook and Special Agent Hines. Tr. 1004, 1007. Hinkson repeated his murderous request in January 2003, Swisher testified, but this time he included Judge Lodge, who was originally assigned to preside over the criminal tax trial. Tr. 1007. Hinkson offered at least "$10,000 a head." Id.

At trial, the defense sought to show the implausibility of the arrangement Swisher described. Hinkson testified that he was out of the country on business for much of April through November of 2002, such that the solicitations could not have occurred. Tr. 1902. Greg Towerton ("Towerton"), the general manager of WaterOz, confirmed that Hinkson was on a family vacation in July 2002. Tr. 2479. Hinkson also testified to Swisher's poor health during these months, pointing out that Swisher had open-heart surgery in September 2002 and was in a wheelchair for a time afterward. Tr. 1970. By November 2002, according to Hinkson, Swisher was barely able to walk even with the assistance of a cane. Tr. 1927. Swisher himself acknowledged his own September heart surgery in an affidavit completed before trial.

Hinkson also testified that his friendship with Swisher had soured by the time of trial, thereby implying that Swisher had a motive to lie about Hinkson after their falling out. Tr. 1977. Hinkson accused Swisher of being party to a scheme with another former Hinkson confederate, Richard Bellon ("Bellon"), to wrest control of WaterOz, noting that Bellon and Swisher had sued him over the matter. Tr. 1985. According to Hinkson's testimony, Swisher tried to corner Hinkson into granting Swisher a 50 percent ownership stake in WaterOz by threatening to report to the Food and Drug Administration that the WaterOz product contained sodium cyanide.*fn2 Tr. 1931--32. Towerton verified that Swisher made an attempt to extort money from Hinkson with similar threats. Tr. 2501. Towerton also testified that Swisher had demanded $6,000 for past-due invoices, even though Towerton had checked WaterOz's books and had been unable to find any unpaid invoices.

The defense conducted an "extensive and withering cross-examination" of Swisher, United States v. Hinkson, 526 F.3d 1262, 1303 (9th Cir. 2010) (McKeown, J., dissenting). The cross-examination occupies 122 pages of trial transcript and focuses on Swisher's bias, lack of credibility, and his falling out with Hinkson. Tr. 1018--1132, 1142--49. Swisher admitted that the two were no longer friends; in fact, Swisher testified that he believed Hinkson "hate[d]" him. Tr. 1068. Their relationship had gotten so acrimonious, Swisher explained, that Swisher suspected Hinkson had "put a contract out" on his life, and that someone had recently fired a shot at him in the woods of rural Idaho. Tr. 1067. Swisher also confirmed that the two had been embroiled in contentious civil litigation involving ownership of WaterOz. Tr. 1060. Defense counsel Nolan even got Swisher to acknowledge that he had a flawed memory. Tr. 1047--49.

After concluding his cross-examination, Nolan requested a sidebar, where he informed the Court of his concern that Swisher was exaggerating his military record. Tr. 1113. Counsel stated that, due to Swisher's age, it was unlikely he would have served at the time of the Korean War. Id. Nolan also referred to the Purple Heart that Swisher was wearing and said that he (Nolan) had received a letter from Bruce Tolbert, an archives technician at the National Personnel Records Center ("NPRC") in St. Louis, Missouri, ("the Tolbert letter"). The Tolbert letter indicated that Swisher had never been awarded any personal military decorations. Tr. 1114. Upon this foundation, the Court granted defense counsel's motion to re-open Swisher's cross-examination. Tr. 1115.

On cross-examination for the second time, Swisher testified that he was wearing a Purple Heart awarded to him for an injury sustained during classified operations in Korea following the war. Tr. 1117. Counsel responded by showing Swisher the Tolbert letter-disputing Swisher's claim-and asked if it refreshed his memory. Tr. 1118. Swisher, in turn, dramatically produced a document from his pocket, calling it a "Replacement DD-214." The document purported to be an official Department of Defense document advising of Swisher's entitlement to various awards, including the Purple Heart. Tr. 1118--19.

The Court immediately conducted yet another sidebar concerning the two conflicting, unauthenticated documents. With the concurrence of the defense, the Court instructed the jury to disregard Swisher's entire testimony regarding his Purple Heart. It was stricken from the record. Tr. 1131--32.

About a week later, the prosecution furnished the defense with a letter sent from Lieutenant Colonel K.G. Dowling, Assistant Head of the Military Awards Branch of the United States Marine Corps, ("the Dowling letter"), to Ben Keeley of the Idaho Division of Veterans Services. Tr. 2069, 2316. The Dowling letter was evidently in response to a query from Keeley about Swisher's "Replacement DD-214." Swisher had apparently attempted to obtain, and had obtained, veterans' benefits by submitting the document to officials at the Idaho Division of Veterans Services. The Dowling letter advised Keeley that the "Replacement DD-214" Swisher had relied upon did not exist in Swisher's official file. The letter also clarified that Swisher's official DD-214 mentioned neither wounds suffered nor awards received. In its concluding paragraph, the letter reiterated doubts as to Swisher's document's authenticity.

Swisher's official military personnel file arrived the same day from the NPRC in response to this Court's subpoena. The file contained copies of the Dowling letter, the official DD-214, and the "Replacement DD-214" that Swisher had displayed on the witness stand. After reviewing the personnel file in camera, the Court provided it to counsel. Tr. 2069. Without a qualified witness to interpret the contents of the personnel file, the Court was not persuaded one way or the other as to the replacement document's authenticity. Tr. 2317.

Defense counsel offered the Dowling letter and Swisher's personnel file into evidence without foundation from a qualified records custodian or witness who could interpret them, Tr. 2307--08, but the Court found both inadmissible under Rules 403 and 608(b) of the Federal Rules of Evidence. Tr. 2607. The Court did give Hinkson's attorney the option to re-open cross-examination once more to further probe Swisher's military record and the truthfulness of his earlier statements. Id. Defense counsel declined the invitation, and both sides concluded their cases.

On January 27, 2005, the jury acquitted Hinkson on counts one through three, ten, and eleven, and deadlocked on counts four through six. The jury convicted Hinkson on only the three counts involving his solicitation of Swisher to murder the three federal officials, counts seven through nine. See Case No. 1:04-cr-00127-RCT, Doc. No. 190, Jury Verdict.

The Court sentenced Hinkson to consecutive sentences of ten years' imprisonment for each of the three charges and three years for making the solicitations while on pretrial release from his tax case. Hinkson moved for a new trial in part based on purported "newly discovered" evidence that Swisher's "Replacement DD-214" was a forgery and that Swisher had perjured himself with regard to his activities in the military. See Case No. 1:04-cr-00127-RCT, Doc. No. 224, Motion for New Trial. The Court denied the motion under United States v. Harrington, 410 F.3d 598 (9th Cir. 2005), finding that the offered evidence was not new, that Hinkson had not been diligent in discovering the evidence, that the evidence would not be admissible, and that the evidence was cumulative of evidence produced at trial and in any event was "merely impeaching." See Case No. 1:04-cr-00127-RCT, Doc. No. 244, Order Denying Motion for New Trial.

Hinkson appealed. A divided three-judge panel of the Ninth Circuit reversed this Court's denial of Hinkson's motion for a new trial, holding that Hinkson had met all five requirements of the Harrington test and was entitled to a new trial. United States v. Hinkson, 526 F.3d 1262, 1298 (9th Cir. 2008). Upon rehearing, however, an en banc panel of the Ninth Circuit vacated the three-judge panel decision and affirmed this Court, concluding that this Court had not abused its discretion in denying Hinkson's motion for a new trial nor in excluding the Dowling letter. United States v. Hinkson, 585 F.3d 1247, 1263--64, 1267 (9th Cir. 2009) (en banc). The United States Supreme Court denied certiorari. Hinkson v. United States, 131 S. Ct. 2096 (2011).

Hinkson now petitions for habeas relief under 28 U.S.C. § 2255.


I. 28 U.S.C. § 2255 STANDARD

A federal prisoner may petition for a writ of habeas corpus under 28 U.S.C. § 2255 if his "sentence was imposed in violation of the Constitution or laws of the United States." Id. § 2255(a). Importantly, this Court's review of a § 2255 habeas petition is "narrowly limit[ed]" such that "an error of law that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Addonizio, 442 U.S. 178, 184 (1979). Rather, an error of law will provide a basis for habeas relief only if "'the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Having reviewed Hinkson's habeas petition and supporting appendices, and having heard the evidence against Hinkson over the course of nearly five weeks of trial in two criminal cases, the Court concludes that Hinkson's claims fail to satisfy this strict standard.

Moreover, as the Ninth Circuit has repeatedly held, a § 2255 habeas proceeding is not a forum for relitigating matters already decided on direct appeal. See Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) ("The law in this circuit is clear that when a matter has been decided adversely on appeal from conviction, it cannot be litigated again on a 2255 motion."); see also United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (explaining that "§ 2255 may not be used as a chance at a second appeal"). Hinkson's habeas petition presents a number of claims that were fully addressed during his underlying criminal trial and disposed of on direct appeal,*fn3 and those claims are not reviewable in this proceeding. See United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979) ("We are bound by the previous decision and decline to again review [the previously litigated] contention."); see also Odom, 455 F.2d at 160 (explaining that "[t]he decision in [the direct appeal] is the law of the case.").

Finally, it is well established that "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice.'" Bousley v. United States, 523 U.S. 614, 622 (1998). Hinkson also seeks to bring defaulted claims without showing cause or prejudice, and those claims are denied. He also seeks to add a supplemental claim that is barred as untimely under AEDPA. Alternatively, the claims are denied on the merits.

A. Claim One: Newly Discovered Evidence.

Hinkson alleges that "newly discovered" evidence supports his § 2255 petition. This evidence includes (1) Swisher's false testimony about his military record; (2) Hinkson's travel schedule during the period he solicited Swisher to commit murder; (3) Swisher's debilitating medical ailments during the period Hinkson solicited him to commit murder; and (4) impeachment evidence against Swisher showing his business-related motivation for lying about Hinkson.

A habeas petition raising claims based on newly discovered evidence is treated as a motion for a new trial under Federal Rule of Criminal Procedure 33. See United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir. 2000) ("We treat [petitioner's] motion under 28 U.S.C. § 2255 as a motion for a new trial."); see also Berry, 624 F.3d at 1039 (explaining that "[a] district court may treat a § 2255 motion as a Rule 33 motion for a new trial" if the government waives any objection to Rule 33 timeliness). To qualify for a new trial under Rule 33 based on new evidence, Hinkson must demonstrate that "(1) the evidence is newly discovered; (2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial." Hinkson, 585 F.3d at 1264. Hinkson's claims fail to satisfy these criteria, and were resolved against Hinkson in his prior direct appeal. See Hinkson, 585 F.3d at 1267 (affirming the district court's denial of Hinkson's motion for new trial).

1. Swisher's testimony concerning his military record.

Hinkson alleges throughout his § 2255 petition that Swisher's false testimony about his military record is grounds for a new trial.*fn4 This claim fails because Swisher's fabrications cannot be "newly discovered;" evidence contradicting Swisher's testimony was available to Hinkson and the issue was fully litigated at trial and on appeal. See Hinkson, 585 F.3d at 1257 ("Hinkson timely moved for a new trial under Federal Rule of Criminal Procedure 33 based, in relevant part, on 'newly discovered evidence' that Swisher's 'Replacement DD-214' form was forged and that Swisher committed perjury regarding his military record."). Hinkson possessed at trial: (1) the Tolbert letter contradicting Swisher's testimony; and (2) the Dowling letter alerting the Court that Swisher's "Replacement DD-214" form was not in his official military file.*fn5 Additionally, as appendices to Hinkson's original post-verdict Rule 33 motion, Hinkson provided affidavits from military officials explaining (1) that Swisher's documents were phony; (2) that Swisher was never awarded any military decorations; and (3) that Swisher did not suffer combat injuries. See id. ("Hinkson accompanied his motion [for new trial] with affidavits from (1) Chief Warrant Officer W.E. Miller, the Marine Corps liaison to the National Personnel Records Center ('Miller affidavit'), and (2) Col. Woodring, whose signature was affixed to the Woodring letter that validated the Swisher-produced 'Replacement DD-214' form, as well as the apparently bogus 'Replacement DD-214' form itself ('Woodring affidavit')."). There is thus no "new" evidence for this Court to consider and the claim is again denied.*fn6

2. Hinkson's own travel schedule.

Hinkson has submitted purported "alibi" evidence with his § 2255 petition, alleging that he was out of the country during much of 2002 and 2003 and was thus unable to solicit murders during that time period. This evidence is not new; it is almost identical to Hinkson's testimony at trial about his extensive travel schedule. Compare Tr. 1902 (responding to a question as to whether he was in the United States between April 16, 2002, and November 21, 2002: "I was pretty much gone a lot. . . . I was in Russia, the Ukraine, Egypt, Venezuela, Mexico. I even went to Africa."); with Memorandum in Support of Ground One at 13 ("Hinkson was outside the USA and traveling in the Ukraine on business at that time . . . ."); see also Tr. 2479 (Towerton testimony as to Hinkson's whereabouts in July 2002: "He was on a traveling vacation with his children through Colorado, Las Vegas, Los Angeles, San Diego, back to Las Vegas, and a final stop here in Boise before returning to Grangeville."). Moreover, it would be impossible for Hinkson to have freshly "discovered" his own whereabouts during the time period in question; he either knew or should have known his own travel schedule. This claim fails.

3. Swisher's deteriorating physical health.

Hinkson has submitted extensive allegations that Swisher was far too sick during the time period in question for Hinkson to have solicited him for murder. This evidence is not new; Hinkson himself testified at trial as to Swisher's deteriorating physical health including Swisher's heart surgery and his inability to walk without the aid of a crutch. See, e.g.,Tr. 1927 ("Well, first, Joe Swisher's health was so bad that he wasn't able to walk . . . ."). And as Hinkson's own ยง 2255 supporting affidavit demonstrates, Hinkson knew of Swisher's ill health in 2002, ten years before filing the present habeas petition. See Exhibit A-2, Memorandum in Support of Ground One ("By the end of July 2002, my understanding was that Mr. Swisher was so gravely ill from his heart condition that he would not have been able to come to WaterOz to meet ...

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