*1 Olson, Esquire, reargument Sara J. then schedule this matter for AGWA—Office General, Washington Attorney in Seattle. WA, Olympia, Defendants-Appellees. for BEEZER,

Before R. ROBERT RONALD M. GOULD and RICHARD C. TALLMAN, Judges. Circuit

ORDER America, UNITED STATES Plaintiff-Appellee, by The Petition For Rehearing filed de- fendants-appellees hereby is GRANTED. v. opinion filed by panel May 2010, is withdrawn. HINKSON, David Roland Defendant- Appellant. parties shall supplemental file briefs (1) addressing: genuine Is there a issue of No. 05-30303. material only fact whether Florer could get religious Jewish materials and instruc- United States Court Appeals, Pidyon tion from Congregation defendant Ninth Circuit. (2) Shevuyim? Does evidence in rec- July 14, 2010. support ord the conclusion that Florer ex- any grievances hausted through available Pue, F. John De Esquire, Michael D. levels suing Congregation Pidyon before Taxay, Esquire, Department U.S. of Jus- (3) Shevuyim? Any other or legal factual tice, DC, Washington, Plaintiff-Appel- for issue raised petition for rehearing lee. banc, and for rehearing plaintiff- en or appellant’s response petition. Riordan, Dennis P. Horgan, Donald M.

Plaintiff-appellant shall opening file its Francisco, CA, Riordan & Horgan, San supplemental sixty brief on days before Smith, R. Esquire, Thompson Curtis from the date this order. Defendants- Anderson, PLLC, Smith Woolf Idaho appellees responsive shall file a brief or Falls, ID, for Defendant-Appellant. thirty days before from the date that

plaintiff-appellant files its brief. Plaintiff- may

appellant optional also file an reply brief not than days more fifteen after the responsive of defendants-appellees brief KOZINSKI, Before: ALEX Chief filed. Extension of these time limits shall Judge, PREGERSON, HARRY granted only good be for cause shown. O’SCANNLAIN, DIARMUID F.

After filed, all has briefing KLEINFELD, been the ANDREW J. KIM panel shall confer WARDLAW, FLETCHER, about whether further McLANE W. argument oral PAEZ, will helpful in reaching RICHARD A. CONSUELO M. decision, CALLAHAN, BEA, so Clerk of the court CARLOS T. will make appropriate inquiries with coun- SANDRA S. IKUTA and N. RANDY parties SMITH, sel with the panel, Judges. Circuit *2 dissent, join I in his which in articulated Order; by Judge Chief Dissent KOZINSKI; Judge full. by Dissent WILLIAM

A. FLETCHER. FLETCHER, Judge, W. Circuit KOZINSKI,

ORDER dissenting, joined by Chief PREGERSON, WARDLAW, Judge, and Rehearing by for Appellant’s Petition PAEZ, Judges: and Circuit for Re- En Court and Limited Banc the the Full denied. Chief by Court hearing I dissent. Judges Pregerson, and Judge Kozinski in a trial federal Following two-week Fletcher, voted

Wardlaw, and Paez W. Boise, Idaho, jury in con- district court judges remaining The petition. grant the soliciting Hinkson of victed David Roland deny it. voted to the of three federal officials. The murder filed opinion en banc original The government’s supporting star witness unchanged, ex- 2009 remains November was Elven Joe Swisher. Wear- conviction concurs Judge Kozinski cept that Chief ing Purple lapel pin Heart on the witness that only portion opinion in stand, had testified that he told Swisher this court’s abuse of discretion clarifies he that was Korean War com- review, from but dissents standard of Hinkson, impressed bat and that veteran facts to the application of that standard exploits, military solicited Swisher’s partial in his dissent as stated case him kill the officials. original order. The today filed with this open- maintained in its government by Judge Fletcher filed W. en banc dissent ing to the statement Swisher is vacated re- on November veteran, and a Korean War combat today dissent filed by the attached placed Hink- throughout maintained trial that order. with this military understanding son’s of Swisher’s rehearing petitions No will further in exploits showed that he serious his accepted. government solicitations Swisher. now that Swisher neither served concedes KOZINSKI, dissenting: Judge Chief mili- personal nor earned combat with, join, that agree I continue commendations, tary and that Swisher opinion explaining how we portion of forged military presented a document discretion, abuse of but now review for lied oath at repeatedly court and under this stan disagree application with the his trial about record. had underes the case before us. dard to arguments on ap- three Hinkson makes jurors the trust some timated First, he the district peal. argues they thought if he was a in Swisher placed documentary wrongly excluded evi- court veteran, likely combat decorated showing presented that Swisher dence they was a had learned he backlash forged lied the stand. document and of heart came about My change fraud. Second, argues prosecutor he en- summary Supreme Court’s after I read - when he invoked gaged misconduct McCollum, U.S. reversal in Porter v. closing in his service -, 447, 175 L.Ed.2d 398 130 S.Ct. argument despite having substantial rea- (2009), William the amicus brief of lied had suspect son to in our case. Without Mac filed Swain Third, argues that service. Swisher, no case. I’m had deny- its discretion district court abused Judge has persuaded that Fletcher now ing upon a new trial based his motion for argument for the reasons the better 2003, Hinkson, § discovery trial again after of new evidence violation of conclusively establishing that sought persuade Swisher to murder Hines, lied on the stand. Cook, Lodge. Finally, Counts *3 Hinkson, charged 10 and 11 that in viola- I would reverse the district court based 115, § of personally tion 18 U.S.C. threat- I arguments. on Hinkson’s first and third kill of ened to the children Cook and that court would hold the district abused Hines. when it documenta- its discretion excluded that

ry evidence would have contradicted on only Hinkson was convicted the Swisher’s claim on the stand that he was a counts, Swisher-related Counts 7-9. The I decorated combat veteran. also 1-3, 10, jury Hinkson acquitted on Counts hold that the district court dis- abused its 11, and Counts 4-6. deadlocked on cretion motion when denied Hinkson’s This appeal only involves the Swisher-re- a trial. new would not reach Hink- lated counts. argument. son’s second trial, points during At several Hinkson’s prosecutor the mili- emphasized Swisher’s Background I. tary background, and Hinkson’s under- majority opinion recites some of the standing that in background, of an effort background ap- facts relevant to Hinkson’s to show the of solici- seriousness Hinkson’s my view, however, peal. majority’s In the tations. In to opening statement I begin by recitation is too truncated. 11, 2005, January on the prosecutor providing background necessary to un- affirmatively stated that Swisher “was a during derstand what went on Hinkson’s Marine, a Combat Veteran from Korea trial, and to Iwhy understand believe the during the Korean conflict. He was not district court abused its discretion. violent, adverse to this kind of dangerous September 21, In an indictment filed on activity; but he wanted part no of murder- 2004, a federal grand jury in Idaho ing However, during federal officials.” di- charged soliciting Hinkson with mur- rect examination of days Swisher three ders of Assistant Attorney Nancy U.S. January prosecutor later on did not Cook, Special Agent Hines, IRS Steven was, fact, ask Swisher whether in he a and U.S. District Judge Court Edward J. Korean War combat veteran. Somewhat Lodge. All three had in- officials been oddly, given his affirmative statement investigation prosecution volved in the only earlier, the jury days three prose- on currency Hinkson tax and structur- only cutor asked Swisher what he had told ing charges. appealed Hinkson his convic- Hinkson about his in experience in charges companion tion those case. Korea. three-judge panel of which I was a member affirmed that sepa- conviction in a Swisher came to the witness stand wear- disposition. rate memorandum ing a replica Purple of a Heart on his lapel. A Heart given is an award The superseding indictment in the case to members of the United States now before us contained eleven counts. who are in wounded combat. tes- Hinkson, charged Counts 1-6 that in viola- acquainted tified that he first became with § sought persuade tion 18 U.S.C. Swisher, According Hinkson in 2000. acquaintance Harding an named James Cook, he had Hines, consulting done some work for murder Lodge, first (Counts 1-3) WaterOz, company, Hinkson’s January 2003 and the two again (Counts 4-6). March 2003 men developed friendship. Counts 7-9 charged that December 2002 or testified that he had served Marine people to all who extremely hostile prosecutor’s to the response Corps. he in that arrest.” In Jan- further that dis- had been involved testified questions, through uary with Hinkson Hinkson “went military exploits cussed his him, told Hinkson people occasions and names of the had offended several as in Korea judge by combat he had been a federal name added Swisher, Hinkson According to Lodge Marine. to that Swisher testified list.” killed any- had ever whether he had asked “[a]t then offered him least one, respond- he had to which Swisher said $10,000 all head” have “them treated ed, many.” “Too regarding initial way offer family and his had been handled”— Albers on various occa- Swisher testified *4 is, and killed.” that Swisher “[t]ortured 2002, and Hink- early in he sions 2001 “pleading in a spoke that Hinkson testified legal problems, Hinkson’s son discussed just “he had fashion” about how to against brought civil a suit particularly replied that he this done.” Swisher “never employee. by Hinkson a former WaterOz again.” to hear that After the wanted shortly April that after testified Swisher January exchange, the two men had 2002, expressed Hinkson “considerable” falling-out, eventually resulting in serious lawyer, Den- employee’s the anger toward nasty and a testi- a lawsuit feud. Swisher Albers, spoke graphic in detail nis after April fied that sometime 2003 he family to see Albers and his wanting about to reported Hinkson’s solicitations a local and killed.” Swisher testified “tortured At prosecutor. time of his testimo- “$10,000 Idaho him a head offered that Hinkson 2005, ny at Hinkson’s trial in it,” “told he [Hinkson] to do but Swisher enemy. Swisher was bitter and he needed to out of his mind was kind of BS off.” knock that examination, On cross defense counsel August mili- July initially inquire in or did into Swisher’s testified that Swisher Instead, 2002, tary background. sought to on his counsel began focus by identifying incon- According federal officials. to Swisher problems with discredit Swisher, empha- Hinkson stated that Cook to sistencies his harassing great him sizing ongoing Hines “had been the feud between Swisher deal,” system,” However, judicial the “cost having “abused and Hinkson. after indi- money,” a lot and “didn’t deserve to questions him for cated that he had no further testified that Hinkson Swisher, live.” Swisher the approach counsel asked to the offer he sidebar, court, him if he “remembered asked the At the he told bench. family” regarding made Mr. Albers and time, defense quite [the has] “For some done, basically, that and “said he wanted into trying dig [Swisher’s] been family and Mr. with Ms. Cook and her that, explained history.” “[b]e- Counsel family.” testified Hines and his Swisher age of the time of cause of his and because him, you’re “I Hinkson told know that war, was believe he in the we don’t mean, you people have killed used it. got also believe that he war. We don’t military].” Swisher serving [while Purple Heart or was combat.” Counsel re- replied that he he would testified just had been then the court he told if Hinkson Hinkson to the authorities port a letter from National Person- “handed way.” talking that “continue[d] ... indicating nel Center Records ever [Swisher] fail show that records after Hinkson testified that any per- or awarded 2002, recommended tax in November charges arrested on not- counsel decorations.” Defense sonal] Hink- conversations with he further Swisher, that Swisher “wear- ed for the record According to Hinkson “was son. stand, ing a Heart on the witness Corps [A] U.S. Marine record was lo- presence of jury.” cated on file at this Center for Mr. pro- Swisher based on the information sidebar, Still at the prosecutor re- your request. vided rec- USMC never sponded asked Swisher ord shows Mr. Swisher served on active “winning medals combat” and had duty August in the from USMC merely about “a asked conversation duty his release from active Au- Mr. had with Hinkson and what [Swisher] gust 1957. He was subsequently dis- Mr. Hinkson asked him about.” The pros- from charged USMC reserves days ecutor did not mention that three addition, August 1962. In Mr. Swish- earlier, in his opening statement to the er’s Marine Corps record has been care- jury, affirmatively he had stated that fully by Military examined Awards was a combat veteran from Branch of the office of the Commandant prosecutor Korean War. The also stated sidebar, record, Corps, of the Marine “For the he has a that office has know, little —I stated that his something don’t record fails show that know— for, *5 lapel. somebody in his If he was stuck knows ever recommended or award- is, what that fine. No one ed personal has said what decorations. is.” Defense counsel asked Swisher whether permitted

The court the defense re- “might the letter refresh [his] recollection open its cross examination of toas whether or not the Government is- lapel pin order to ask about Swisher’s sued a Purple [him] Heart.” during about his service the Korean War. letter, After Swisher reviewed the response questions, In to defense counsel’s following exchange place: took wearing Swisher testified that he was “a Q Now, [by sir, defense counsel]: when Purple Heart Medal” that had been award- you Heart, are awarded Purple are by ed to him government. the U.S. He you given reflecting document explained then that he had served in com- your entitlement to that Heart? bat in the Korean but following “[n]ot War A [by Commonly. Swisher]: said, the Korean War.” He “I of a part was Q: you given Were such a document? special expedition, Corps Marine Expedi- tionary Unit that engaged was combat A: Yes. Armistice, after attempt an to free Q: Where is that document? prison camps POWs still secret in North my A: In pocket.

Korea. And that information still remains Q: it, IMay see please? classified, so I’m not sure how much more A: I replacement DD-214, have a if the say I can on that.” permit court will me to— prosecutor’s Over objection, defense THE it, COURT: Let me take a look at counsel just-re- then showed Swisher the first. ceived letter from the National Personnel

Records Center. The letter was THE dated It WITNESS: certified. We day of the cross examination and had been had to clear go Headquarters of faxed to defense Corps counsel’s office at 2:34 Marine and all over to get it. p.m. that classifications, afternoon. The letter signed was of my Because rec- by ord, Archives Technician Bruce R. along Tolbert. with the other survivors of (hereinafter Mission, The letter the “Tolbert let- had been pretty much ter”) purged. stated: STAR, HEART, Longstreet, PURPLE NAVY Ms. would GOLD THE COURT: counsel, please? to both AND MARINE you tender that CORPS COMMENDA- TION MEDAL ‘V’.” box copy, I PROSECUTOR]: W/BRONZE [THE below, 27, immediately typewritten: Honor. Your “Multiple shrapnel gunshot Septem- hang on to it. Just THE COURT: — 1955, Korea.” The document bore the ber COUNSEL]: What [DEFENSE WOODRING, Jr., Capt., “W.J. signature that? USMC.” copy. have a PROSECUTOR]: [THE ap- May we COUNSEL]:

[DEFENSE the same below the page, photocopy On Your Honor? proach, DD-214, writ- purported of the Form at the request ten: “Filed recorded sidebar, hearing of the At out o’clock p.m. Swisher[.] Joe At 2:40 this continued: jury, exchange E. ROSE day February 2nd 2004[.] going I am COUNSEL]: [DEFENSE [,] Ex-Officio Auditor and Re- GEHRING govern- counsel apparently, to— County, By Idaho Dana Idaho[.] corder validity ment knew about (Un- $0[,] Deputy[.] Fee Stroop[,] pg.” just He said he has Purple Heart. handwriting; in- derlining indicates italics copy this. stamp; brackets indicate material dicates Have seen this doc- THE COURT: me.) added ument? me He showed PROSECUTOR]: [THE jury, The court excused and the 9:00 morning, this document The court conversation continued. asked o’clock. *6 that he prosecutor the to confirm had seen you copy a of

THE COURT: Do have morning at the document that 9:00 a.m. it? prosecutor replied: The I copy a PROSECUTOR]: [THE showed it to me at 9:00 a.m. [Swisher] of it. I morning this because had asked—he Why COUNSEL]: didn’t [DEFENSE Korea, serving in had mentioned Korea. tell us? you said, I “Wasn’t the Armistice in '52?” I? Why should PROSECUTOR]: [THE said, still, you there was He “But pocket from his a pulled Swisher had know, combat; and it continues to this single paper, photo- sheet which was of I to know to true. day,” happen which be to copy purporting of document day to this in Korea. There is combat 214, Department Form described Defense requested Defense counsel a mistrial testimony “replace- by Swisher in his as a prosecutor’s failure inform on the to based the bot- ment DD-214.” In box near the given the defense that Swisher document, was typewritten: tom of to appeared document replaces previously is- “This document from the National contradict letter 8-3-57. sued transfer document prosecu- Personnel Records Center. The Changes and have been verified additions “should responded tor that defense counsel original this DD- by Command. The said, go to I have listened me when ‘Don’t to headquarters 214 has been forwarded ” there.’ He elaborated: (10-15-57) ... Entitled Ma- MC to wear anything go I didn’t into Corps Near Expeditionary rine Medal.” anything else document, combat or his medals in box was the middle go to this STAR, my on direct. He chose down NAVY “SILVER typewritten: objected even I it. path, when AND MARINE CORPS MEDAL W/ I pin jury didn’t attention to the little The court offered to “instruct draw lapel. in Mr. Lots of people portion strike that of the cross examina- They anything. them. could be wear tion of Mr. Swisher that relates to the He wanted to make an issue of it. Purple complete- Heart. Just them to tell

ly disregard Purple all about the agreed. Heart.” Defense counsel When whipped Counsel out his document returned, jury the court said: ago. he I received minutes believe gentlemen, Ladies and it’s a long been probably enough he didn’t have time to day; and I now realize that I made a digest it read and tried to use allowing questioning mistake in with impeach the im- witness. That was regard to the Heart Medal. proper. I going you

So am to instruct disre- gard all completely of Mr. Swisher’s tes- It grandstand play was a in front of timony regard with to that com- that didn’t—that wasn’t so mendation. grand, got caught it. That’s You certainly are entitled to where we are. consider testimony. all the rest of his Just nothing There is did the Government from I everything asked where [defense go that caused him to in the area he did. re-open, please counsel] to strike that tried going We to avoid into this area. your minds; from you are know, I don’t I barely had think — consider it as the case. time to myself. look this It refers to replaces other —that this docu- some contretemps over the Tolbert letter previously ment issued. don’t know the “replacement place DD-214” took is, just what that document and it led Friday afternoon, January 14. The me to conclude that is not a proper following Monday, awas fed- go area to into. holiday. eral When trial resumed on Tuesday, prosecution rested, mistrial, court denied the motion for a defense called its first stating: witnesses. *7 The court finds as a matter fact of day, Wednesday, 19, The next January that copy if[Swisher’s is a of document] court, defense counsel told the outside the genuine military a record—and at this presence jury, of the that he had obtained point, any way don’t have to determine information indicating that the document that; appears genuine, but it at taken pocket Swisher had from his while in appearance. least the on witness stand —the so-called “re- It consistently indicates with the how placement DD-214”—was fraudulent. De- testified; did, witness has that in he fense had photocopy counsel obtained a fact, multiple shrapnel gun- receive DD-214, a different Form also recorded in September shot wounds 1955 in Ko- by County Swisher at the Idaho Auditor rea; and he that was awarded commen- However, and Recorder’s office. this medals, including dations and the Form DD-214 had been recorded in Feb- Heart. ruary February 2001 rather than 2004. receipt The court that stated “until the earlier-recorded Form DD-214 was letter,” form, the[Tolbert] the “had identical to the later-recorded with no reason to believe docu- the notable difference that none of the that[Swisher’s medals, Brady commendations, was ment] discloseable under or wounds was Giglio because it was not impeaching.” mentioned in the earlier-recorded form. letter, in the Dowling pos- now top the 26 where written in box “N/A” Heart, other Star, Purple fax line government, session the Silver later-record- specified in the were indicating awards it had been faxed from the that in boxes was also written form. ed “N/A” SVS” Lewi- “ID. STATE VETERANS where, in the later-recorded 27 and 32 Idaho, ston, Keeley’s office was lo- where gunshot— form, shrapnel “Multiple 13, cated, Thursday, January on and “Entitled Korea” September January day the before Swisher Corps Expeditionary Medal” Marine wear testify against the stand to Hinkson. took written. were has an- prosecution given various the court: Defense counsel told Dowling the about when received swers we people from the indications [T]he its or learned of existence. On the letter the National Person- [at have talked January gave he morning of when they that stand Center] nel Records court, prosecutor to the letter district January 14th letter of by the [Tolbert] Agent Long got stated he “believe[d] with a they provide will us and that day by going letter] the before to the [the DD-214 that would copy of his certified Later, in its Administration.” Veterans’ document]; that support [Swisher’s to Hinkson’s motion a new opposition forgery; is a document] [Swisher’s trial, its prosecution stated in brief given any never that he was by was “obtained the letter federal or benefits as indicated awards days from the investigators a few earlier further, that, document]; and [Swisher’s Affairs office.” In its Boise Veteran’s in the any change had been made court, document, have been stated prosecution it would brief to discharge DD-215 than [rather on a form obtained “government investigators done DD-214].... form January 20.” Fi- on or letter] [the queries during to the nally, response believed further stated Counsel three-judge pan- argument oral before the in combat not been wounded Swisher had fact, el, attorney post- in the sent but, “injured government’s had been while Bremerton, car stating in a accident that he “been argument Service letter He National Washington.” stated on the investigating agents informed that would send Personnel Records Center first learned of team saw and prosecution court, full record Dowling 18 or letter only subpoena signed response to a but Boise, Department Idaho office of the subpoe- signed The court court. is no Affairs.” There indica- of Veteran’s day. na late that *8 had tion in the record defense counsel later, Friday morning, on Jan- days Two Dowling any idea of the existence of 21, presence of the uary again outside the it to government provided until the letter jury, prosecutor provided photocopy January on 21. the court “for in-camera of a letter court Keeley indicated that Dowling The letter letter from Lieutenant review.” The had Personnel Man- earlier contacted the Head of Dowling, K.G. Assistant Colonel Corps Branch Marine of agement Support Awards Branch of the Marine Military attempted Headquarters, after Swisher Keeley Division to Ben of the Idaho Corps, DD-214” to “replacement use his obtain (the Services. The letter of Veterans from the Idaho Division letter”) benefits 30, veterans’ “Dowling was dated December Dowling of Veterans Services. wrote back appeared to be “received” 2004. What 10, Keeley: January At the stamp was dated 2005. thoroughly have

We reviewed the official document in indicating Mr. of copy of Certificate Release or personal Swisher’s entitlement to a de- (DD Discharge Duty from Active Form coration which did not pres- exist its 214) you letter supporting and which form ent until 1994. on of Mr. with submitted behalf Further of review Mr. Swisher’s rec- your request. pro- you The documents ords reveals that he is not entitled to in Mr. offi- not exist vided do any awards, service including the Ma- cial The official DD Form 214 in file. Corps Medal, rine Expeditionary for his signed of the same date record Corps. service the U.S. Marine Mr. any does not Mr. and contain Swisher’s official records failed 26, information box con- awards and any to indicate information that he no “wounds” information in tains box during period served Korea when A of DD 214 copy provided his official any awards were His authorized. rec- as the enclosure. Given this information ords show that he was stationed at we reason to believe that docu- Camp Fuji Yokosuka, Japan and from you ments submitted are not authentic. 4,1955 6,1956. March to May Specifically, you the DD 214 submit- There is no information in his military ted behalf of on Mr. Swisher indicates record or his medical record substan- that Mr. Swisher is entitled to the Silver tiate his Purple entitlement to a Heart Medal, Navy Star Corps Marine medal. His medical show records (Gold in lieu Medal Star of the Second 10, 1957, February he was involved in Award), Heart, Navy private vehicle accident near Port Corps Marine Commendation Medal Townsend, Washington. However,

with Combat “V.” our review military records, of his official those Friday, 21, Later the court headquarters, Navy Depart- and the received Swisher’s official file—“a ment Board of Decorations and Medals half-inch-thick stack of materials” —from any failed to reveal information the National Personnel Records Center in would indicate that he was recom- ever response subpoena. to its official mil- for, mended personal awarded itary file a copy contained the Dowling decoration. letter. The undoubtedly an- Additionally, Navy and Marine ticipated that the file would arrive on or Medal, Corps Commendation which is day, about that when it arrived it listed in block DD 26 of the 214 that would contain Dowling letter that the submitted did not exist at the time of government presented to the court Mr. Swisher’s transfer to the Marine that morning. presence of the Dowl- Corps Reserve in 1957. On March ing entirely letter in predicta- the file was 1950, a Metal Pendant was authorized ble, for it in its paragraph: stated last issue connection with a Letter “[Mr. records will be Swisher’s] returned Commendation and rib- commendation Center, the National Personnel Records September bon. On the Secre- a copy of this letter will be filed in Mr. tary of the Navy changed the name *9 military Swisher’s official records.” Navy the award to the Commendation Swisher’s military official file also con- 19, 1994, On August Medal. the Secre- a copy original tained of Swisher’s Form tary Navy of the renamed the as medal DD-214. Form Navy the This DD-214 Corps matched Marine Commenda- tion impossible precisely Medal. It is the Form DD-214 that the that Swisher approving officer could have an signed registered in Idaho County the Recorder’s Then, on record and This Form DD- record. the without February in office had re- jury present, that Swisher never the the court stated con- showed its any military awards. ceived that clusions. The court stated the file by been the had sent to the court National also the file contained Swisher’s official response in to Personnel Records Center Keeley had sent to documents that two subpoena; Dowling the court’s that the of docu- Dowling for One the evaluation. provid- in the letter letter file matched the “replacement of the copy ments was a to the by prosecution ed court the by signed Capt. DD-214” W.J. purportedly Friday; Dowling and that the letter con- pulled Woodring, out Jr. Swisher “replacement cluded the DD-214” and pocket the witness stand. The of his purportedly a letter the purportedly “supporting signed other document was letter” Woodring by on Octo- by Woodring written were “not authentic.” But 16,1957. stated: ber That letter court it found the file “very the stated that you your decipher.” inform difficult to The court

I am stated: pleased action, awards and citations have combat It is not at all clear to me what the replacement of a copyA been verified. is; I suspect truth the matter it document, which more DD transfer the something has to do with fact that service, your accurately reflects are dealing we with events occurred correspondence. The is attached to this that, fifty years at the ago time that original has been forwarded the Com- occurred, they involving top were secret Corps of the Marine at Head- mandant military activities. Corps Washington, quarters Marine because, I you So to look at it wanted D.C. obviously, you your have to make own judgment think you sig- as to what surgery, When recover from both nificance of it is. Major encourage you and I Morgan problem The court stated that “the program college at enter R.O.T.C. reviewing court had in documents your we were able to choice. Glad have, camera is we the documents help. themselves, self-authenticating are neither above, the letter Dowling As indicated self-explanatory.” nor have reason to believe” stated that “we The court concluded: not that both of these documents “are turn this And do not want to issue authentic.” under peripheral into mini-trial Rule jury, of the presence Outside the 608(b) of the Rules of Evidence. surprisingly court stated —some-what of the file—that a view the contents point So state of the record “quick of the file indicates that Mr. review jury that the is before not to was, fact, in top involved secret consider battlefield com- Mr. Swisher’s activities; appears that and it he thereof, mendations, although or lack that he awarded the medals claims that they certainly credibility can assess his ... do [The documents] awarded. regard with to the extensive cross-exam- appear impeaching.” court told ination conducted the de- that was conduct a thor- counsel that it would more jives with all fense see how the file over weekend. ough review of in the case. other evidence Monday, reconvened on When the trial that, light replied Defense counsel January 24, discussed the court court, information now before the de- official file with counsel off *10 opportunity question you fense deserved an prove How would that something that “replacement signed very Swisher further about his was in 1957—I doubt military experience. Woodring us, DD-214” and much Mr. is De- still with Ibut don’t fense counsel know. reiterated Swisher had worn a Purple Heart on the witness stand. agreed The court that it “was not at all prosecutor

The reminded the court yet” convinced that “the document during his direct examination of Mr. pulled Swisher out of his pocket [was] he had not to elicit attempted “for the false or not” military because Swisher’s was, truth of the matter that Swisher record in- was not “self-explanatory.” The deed, Instead, stated, idea, court said, combat.” “I have somebody no if jury heard is military about “a conversation ... involved secret operations, be- personnel tween Mr. Mr. whether or not their ... Swisher and Hinkson re- file him, would ever garding asking reflect those The ‘Were missions.” ” court ever in stated that it prosecutor combat?’ The needed to hear “a also ad- from records custodian from the Replica dressed “what we National Per- Purple call sonnel Records Center or Heart. someone else It’s not a real Heart at all.” who is more familiar with military The records prosecutor’s basis of the conclusion any than decorations us.” lapel pin wore on the witness stand a real Purple was “not Heart The court ruled that the defense would all” is not from clear the record. The permitted be recall Swisher for further prosecutor that, maintained to the court in cross but examination would per- not be event, any whether Swisher was “entitled mitted to introduce into any evidence wear Replica Purple Heart or bearing documents on his ex- other kind of lapel” little medal on his is, perience. That the court ruled that the a “collateral only issue that arose on cross- permitted defense would intro- examination.” letter, letter, duce the Tolbert the Dowling or anything else contained in Swisher’s

Defense counsel told court that he official military file that had been sent when “concerned about the Govern- response to the court’s subpoena. The got Dowling letter],” ment [the which the court stated: prosecutor provided to the court on which documents form the basis Friday morning, prose- for the doubt cast responded, got cutor it—I “[W]e believe record and [his] entitlement to wear Agent Long got day before going Purple Heart are extrinsic pro- Veterans’ Administration.” The bative of a specific incident of untruth- prosecutor letter, added that the Dowling fulness. alone, standing prove did not that Swish- The court therefore holds that “replacement er’s DD-214” was fraudu- admission these documents is barred lent. He said: 608(b). by Rule What they really prove, would have to resolved, this were to be they would Furthermore, the court prove have to holds that ad- that the substitute DD- mission of signed the actual im- by Captain in, documents of Woodring, believe, peachment is barred under Rule 403. October '57 —... that signa- Captain ture of Woodring First, forged; yet the documents have not and I would suggest probably officially authenticated; been resolve whether correct it’s or not. process could waste considerable time *11 strongly can to be corrobo- indirectly you consider only relat- tangential issues Hinkson’s to resolved at trial rative of Mr. intent solicit the issues to be to ed jury to the as and, murder be the fact that an ac- perhaps, submitted would as tomorrow. cused or was aware that the early believed previously had commit- person solicited The documents themselves Second: ted similar offenses. entirely They are conclusive. are not self-authenticating. The certainly not Mr. powerful. to have to be allowed Government He how Hinkson un- talked about Mr. or testi- conflicting introduce documents that Mr. Swisher had been derstood explain mony military officers peo- the had a lot of military and killed them. ple. very impressed by that. He was state, proffered The documents Swisher, fact, according In Mr. Mr. summation, record that Swisher’s does asked, you “Have some- Hinkson killed earned service not indicate that he body?” during mili- or service medals his record ‘Tes,” says, And Mr. Swisher when however, duty; other documents tary “Wow, not, response Mr. Hinkson’s suggest court available terrible,” is, but it “How must be indeed, have earned such might, many you killed?” He was people medals. very by that. impressed “[ajnother prosecutor The stated that may The defense reference these doc- reason Mr. Hinkson liked Joe Swisher during cross-examination.... uments its they is Mr. were friends Swisher had been sum, ques- finds that the court Corps. in the Marine Mr. Hinkson had tionability of Swisher’s character Navy. you served in the Joe Swisher told amply demonstrat- may truthfulness experiences in the they talked about their jury by re-opening to the cross-exam- ed later, prosecutor Service.” The stated by allowing the defense to ination Swisher, suggest a “Mr. reason- impeaching documents reference find, juror told truth about able could during the cross-examination. gov- At the the solicitation.” end of closing, prosecutor stated ernment’s way which I will let defense decide “understood Mr. Swisher they go; want to either leave alone or and that had served record him. call people. combat killed It’s the kind in- Hinkson’s counsel morning, The next thing.” do person he thinks will such that, given inability the court formed 2005, days two On after into docu- introduce deliberations, guilty returned showing that Swisher had lied on ments verdict on the Swisher-related solicitation receiving Heart the stand all other acquitted hung counts. It decorations, he had decided not and other counts. to recall Swisher. just month On March over a several

The made refer- later, a new counsel moved for military experience dur- defense ences to Swisher’s jury. Pro- closing arguments to the Federal Rule of ing trial under Criminal on, began by explaining signifi- motion inter prosecutor cedure 33. The relied testimony: alia, of Swisher’s cance evidence” “newly discovered witness lied under oath on the you Swisher had judge will further instruct produced forged docu- fourth stand and had that the sort of circumstance *12 1110 in court. That

ment evidence consisted of First Class on Private 28 Feb. 56 newly from obtained affidavit Chief War- which involved disobedience to mili- Miller, Officer Corps rant W.E. Marine tary during law his active tour of liaison to the National Personnel Records duty!.] Center, newly and a obtained affidavit military D. official Swisher’s U.S. rec- from now-retired W.J. Woodring, Colonel ord that rather being shows than Jr., Corps signa- the Marine officer whose assigned to missions in post-War appeared original ture Swisher’s Form (as Swisher) Korea claimed by he DD-214, on the purported “replacement was stationed at Camp Fuji and DD-214,” purported and on the “support- Yokosuka, Japan 4 from to 6 March letter” for ing “re-placement DD-214.” May 1956 with no docu- supporting precisely These documents were what the or mentation information indicate court district and the had said participated that he in any classified prove were needed to that Swisher had Corps Marine expeditionary opera- lied the stand. tion performed into incursions stated, Chief Warrant Miller Officer during Korea his tour of active 24, 2005, an affidavit February dated “As duty.... part my duties ... I have access to the E. Swisher asserts that the expedition- military official United States records of ary missions he was involved with former members of the USMC which are in Korea were “Top classified as deposited in the Nfational] Personnel] Secret” operations. The Ma- U.S. and, among my R[ecords] C[enter] other perform rine did not Corps any responsibilities, I evaluate the authenticity operations “Top classified Se- information, records documents af- cret” operations during Swisher’s fecting individual Department Defense duty. tour of transfer including documents DD Forms Miller also concluded that “replace- 214.” ment DD-214” that Swisher presented Miller concluded that Swisher had never in court an was not “authentic document.” been awarded a Purple Heart. He wrote (Miller referred to this “Ex- document as that his reasons included the following: C.”) hibit addition the factors enu- A. Swisher’s medical records show that merated in support of his conclusion that did not sustain combat Swisher was not entitled to wounds, rather he was involved in a Heart, Miller wrote: private motor vehicle accident near A. Military Rules and Procedures re- Townsend, Port Washington on 10 quire that a DD only Form 214 can February 1957 and was treated at retyped issued and at Head- hospital Bremerton, at Wash- quarters signed USMC and ington .... designee of the Commandant B. The DD signed by Form 214 Swish- Corps Marine who offices er on August 3 1957 ... which is a Headquarters. Capt. Woodring part of his official U.S. rec- never designation. held such ord specification contains a that he C, was not entitled VA B. Exhibit box provides: benefits!.] “[tjhis replaces document previ- C. Swisher’s official U.S. rec- ously ord subject indicates that he was issued document transfer an disciplinary Article 115 action 8-3-57.” There are re- no additional sulting in demotion from Corporal sup- records in Swisher’s file that Ex- superimposed upon letter. origi- port the claim A is a replaced; forgery. hibit Form nal DD B C, Exhibit attached provides: box I have reviewed C. Exhibit have been of a purports copy and additions to be “[cjhanges which *13 Changes DD 214” for by “Replacement Command.” Swisher. verified original in handwriting Swisher’s 34b there is or additions box truly 214 if my signature. DD Form to be I did purports “verified ” in would have resulted Command B. looks like sign not Exhibit What becoming a documents B verification Exhibit actual- my signature on mili- U.S. part of Swisher’s official image my signature that ly the tary record.... superimposed has somehow been B the letter. Exhibit is a for-

upon gery. which Military policy procedure G. in effect since before the

has been 22, 2005, On the court denied April from ac- time transfer of Swisher’s Apply motion for a new trial. Hinkson’s Reserves on duty tive USMC ing set forth in the criteria United States would have directed Aug. 3 57 (9th 339 919 Waggoner, v. F.3d Cir. first, 215 a DD Form issuance of 2003), gave the court several for reasons version of any replacement before grant a trial on the basis declining to new DD Form 214 original newly of Hinkson’s discovered evidence. issued____ have been would First, the court concluded DD no of a Form H. There is record diligent seeking in had not been the evi having issued for 215 been ever dence he now submitted to court. Sec Swisher. ond, that the the court concluded evidence “newly because “[t]he was not discovered” original.) (Emphasis and brackets proffered of both documents is substance (and, government’s to the Now-retired generally not new and is cumulative living) Corps Marine Colonel surprise, still Finally, available information.” previously Jr., in an affidavit dated Woodring, W.J. court importantly,” the concluded “[m]ost 27, 2005, February stated: not ‘new’ evidence is proffered “the spent years months 2. I trial, nor material to the issue at would I Corps. Marine United States acquittal, new an probably trial result Corps in the Marine Captain is inadmissible.” because the evidence I and reside 1957. I am now retired “previously it had explained court in Southern California. ... now held on the record at trial A Exhibit attached have reviewed reiterates, proffered admission of the doc copy of a purports which be prohibited by is still uments Pfc Elven letter addressed to Joe 608(b), introducing bars Fed.R.Evid. which (Swisher) dated 16 Oct past extrinsic evidence of witness’s cause Ex- 1957. I did not write or conduct.” hibit A to written. Below the be Fidelis, on June there is Hinkson was sentenced Semper words as well as for my for his convictions purports solicitation handwriting currency structuring A. his tax evasion and signature. sign I did Exhibit of 43 He total my signature like on Ex- convictions. received looks What tax and years ten on the actually image my years prison: hibit A is years on each of structuring charges, ten signature that has somehow been charges, and an he is to a three solicitation addi- entitled new trial based on the years having tional three made the presented new post-trial in his pretrial solicitations while on release in the motion under Rule 33. I reach only tax case. arguments. the first and third I agree with arguments both of those and would Subsequent II. Indictment and reverse the district court based either Conviction of Swisher of them.

n On 30, 2007, July indict- knowingly wearing ed Swisher for A. Refusal to Admit Impeaching entitled, to which decorations he was not Military into Documents *14 Heart, in including Purple the violation of Evidence 704(a); willfully § 18 for U.S.C. and know- We for review abuse of discretion a dis- ingly making representations false evidentiary rulings, trict including court’s military service in to obtain order ben- impeachment decisions to admit or exclude entitled, he efits which was not in viola- Tran, evidence. United States v. 568 F.3d 1001(a)(2); § tion of U.S.C. 18 and for (9th 1156, Cir.2009); 1162 United States v. presenting false and a “forged (9th Geston, Cir.2002). 1130, 299 F.3d 1137 form DD-214” in obtain order to benefits We must then apply the harmless error entitled, to which he was not in violation of standard. will evidentiary We reverse an §§ 641 U.S.C. and 642. As the date of ruling for “only abuse discretion if such clear, the indictment makes the govern- likely nonconstitutional error more than ment indicted more than two not affected the verdict.” United States v. years after district court ruled on Edwards, (9th F.3d 1178-79 Cir. motion Hinkson’s for a new trial. On 2000); 52(a) see also Fed.R.Crim.P. April 11, Swisher was convicted on (“Harmless error, defect, Error. Any ir- all three counts of the indictment. Be- regularity, or variance that does not affect cause Swisher’s indictment and conviction rights disregarded.”). substantial must be did not until occur after the district court ruled on for trial, Hinkson’s motion a new sought Hinkson to introduce the Tolbert court obviously district could not have letter, letter, Dowling and the rest of reaching considered them in its decision. military Swisher’s official file in order to show that receiving Swisher lied about Appeal III. Purple Heart and his other claimed mili- appeal court, On to this Hinkson chal- tary decorations, and to that he show lenges denial of his motion for a new forged “replacement his so-called DD-214” grounds. First, trial on three Hinkson that he jury. had brandished before the argues that the district pre- court erred in The district court excluded this evidence cluding introducing him from into evidence 608(b) based on Federal Rules of Evidence military documents that would have and 403. shown that Swisher lied Purple about his 608(b) provides: Rule Heart, decorations, about his other Specific instances of the conduct of a forged about his “replacement DD-214.” witness, for the purpose attacking or Second, argues Hinkson prosecu- that the supporting the witness’ character engaged by tion in misconduct referring truthfulness, other than conviction of Swisher’s background during its provided may crime as closing argument rule clearly after it was proved by notice of the be contents of extrinsic evidence. They Swisher’s official Third, argues however, file. may, Hinkson in the discretion during court, or un- “a Combat Veteran from Korea probative of truthfulness truthfulness, inquired into on cross- was not Korean adverse to conflict[who] (1) of the witness concern- violent, examination dangerous ... activity.” Particu- character for truthful- ing statement, the witness’ larly given prosecutor’s untruthfulness, or ness or hardly understanding could avoid (2) for truth- concerning the character wearing Heart as wit- of another fulness untruthfulness ... “non-verbal conduct ... intended as to which character witness ness as had been an assertion” wounded testified. being cross-examined has military combat. The documents Hinkson sought have directly documents introduce would court deemed the district statement, military experience bearing on Swisher’s contradicted and would probative specific “extrinsic have shown be a liar. Swisher to incident of untruthfulness” therefore The district court also refusing erred 608(b). under Rule inadmissible allow introduce this extrinsic erred as a matter of district court impeach evidence to Swisher based on letter, the holding law in that the Tolbert 403. Rule 403 provides: Rule *15 letter, the Dowling and other documents Although relevant, may be evidence ex- file be excluded under Swisher’s could probative cluded its value is substan- 608(b). Advisory Rule The 2003 Commit tially outweighed by danger the of unfair to 608 make clear that “the tee Notes Rule issues, prejudice, of confusion the on extrinsic prohibition absolute evidence by the misleading jury, or considerations only prof when the sole reason for applies time, delay, of undue waste or need- support is to attack or fering that evidence presentation less of cumulative evidence. truthfulness.” the witness’ character for The district court its by abused discretion comm, 608(b), advisory *16 Wright, case from which it derives. See 3 trial, newly proved obtained after conclu- King Klein, & Federal Proce- Practice and sively presented that Swisher had false (3d 557, ed.2004) § dure at 541 (citing presented forged and had a doc- State, (1851)). Berry 511, v. 10 Ga. 527 during ument The government trial. no Although ordinarily we longer state the test as disputes that Swisher lied about his military experience comprising requirements, five presented a we have rec- forged (5) “replacement ognized (3), contends, (4), It that requirements DD-214.” how- ever, that newly duplicative. is, obtained are That newly Miller and discovered Woodring affidavits not do warrant a new evidence is “material” when the of result trial. newly discovered evidence that “a is new trial probably acquit- would result in We review for abuse discretion a dis tal,” a condition that is not usually met trict court’s denial aof motion for a new when the newly discovered “cu- evidence is trial upon newly based discovered evi See, merely mulative impeaching.” []or See, Sarno, dence. e.g., v. United States e.g., Krasny, United States v. 607 F.2d (9th 1470, Cir.1995). 73 F.3d 1507 A dis 840, (9th Cir.1979) 845 n. (noting 3 that the trict court abuses its discretion when it materiality probability requirements law, makes an error of when it rests its really “are two means of measuring the clearly decision on findings erroneous Davila, same fact, thing”); United States v. 428 or when left we are with “a definite (9th 465, Cir.1970) curiam) F.2d 466 (per and firm conviction that the district court (noting newly that discovered impeach- committed clear of judgment.” error Gordon, (9th Delay v. ment “it supports 475 F.3d evidence new trial if is 1043 Cir.2007) (internal likely quotation marks that the would omit have reached ted). evidence); light different result” in of the already Klein, that was not King supra, motion considered Wright, & see also rejected evidentiary from admission § at 552. Maj. Op. court.” 585 F.3d by the newly defendant’s The character words, majority In other 1264-65. how strict- determines discovered evidence contained in concludes evidence Harrington probability ly apply we merely is cumulative of evi- the documents newly usual rule is that requirement. Our already during that was known trial. dence a de- does entitle not discovered argument That is addressed to best trial the evidence to a new unless fendant I Harrington requirement, third ad- than not probable it is more indicates that argument below. I dress detail acquittal. trial will that the new result only briefly respond here. newly to most discovered applies This rule majority’s conclusion would more evidence, evi- including newly discovered if the court had persuasive district pre- tending to show that evidence dence that, clearly trial during indicated its false. trial was at the defendant’s sented view, it was the evidence then before insuf- F.2d at Krasny, See 842.1 had lied ficient to show has satis- conclude that Hinkson reading record. After test. Harrington parts fied five all file half-inch-thick received majority concludes my surprise, To from the National Personnel Records Cen- of them. has satisfied none letter, ter, Dowling which included the stated, not at all district court “It is clear Newly Evidence Discovered matter to me what the truth of the is.” Harrington part the first of the Under indicated the file was “very The court test, the evi- must determine whether we decipher” “self-explana- and not difficult support motion presented dence tory.” The court stated that could not “newly trial discovered.” for a new uncertainty its without “hearing resolve on two new trial motion relied Hinkson’s custodian” or from” “records (1) the affidavit new of evidence: pieces person. prosecutor added that similar Miller, the from Warrant Officer Chief was needed in order to show the what Per- National Corps liaison *17 the Marine falsity “replacement the DD-214” of was (2) Center; the affida- Records sonnel Woodring from stating an affidavit Colonel the officer Woodring, vit from Colonel forged. signature his had been that signature on appeared purported whose below, in more detail I will discuss As DD-214” “replacement Swisher’s newly provided Woodring Miller and the that undisputed It letter.” is “supporting precisely were the evidence that affidavits to, or of evidence known piece neither was prosecutor court and the on the district of, until defense possession was in the the fatally 21 had lack- January described as after trial concluded. Hinkson’s explicitly If the district court had not ing. the majority concedes that both provided evidence the sort stated that of “newly Woodring Woodring are Miller and affidavits the Miller and affidavits was evidence, “decipher” it but contends that to Swisher’s file and to written” needed truth, majority’s conclu- provide any not new determine “did affidavits infor- (9th Cir.2002); United States applied demand F.3d 1204 v. 1. a less We have sometimes granting Cir.1994). where it ing (9th a new trial Young, standard 17 F.3d 1201 Because conclusively at of the new is known the time hold that is entitled to new I would at presented that evidence trial motion test, Harrington it is unneces trial under Corr., Hall 343 See v. Dir. trial was false. of sary apply this to test. Poole, Cir.2003); (9th 282 v. F.3d Killian 976 1116 merely that this is that

sion cumula- Swisher had purported discussed his might injuries tive be understandable. But the war even before the deposition, explicit court’s statement during jury district it grand testimony April 16, precisely 2002, 10, needed this evidence makes it February is 2004. impossible to conclude the “sub- deposition in the case civil Woodring stance” Miller and affida- took place just three months before was not vits new. start of Hinkson’s criminal trial. That was the first Hinkson put time was on notice of Diligence 2. injuries.” Swisher’s claimed “battlefield part Under the second of the Harring- true, wrote, It is as the district court test, we ton ask whether the failure to gave grand jury testimony discover evidence sooner resulted early only 2004. But this meant a “lack diligence from on the defen- government that the knew about Swisher’s part.” Kulczyk, dant’s See 931 F.2d at grand testimony, jury govern- thus the A court cannot conclude that a de- put ment was on notice in 2002 and diligence merely lacks fendant because a injuries.” his claimed “battlefield As the team defense with unlimited time and re- known, district court knew or should have might managed sources to discover precisely grand jury because was testi- Instead, the evidence sooner. a court mony, testimony kept secret from ask must whether it was unreasonable for Hinkson. finally turned the defense to have failed to discover the Swisher’s grand to over promptly. evidence more “All that is re- Hinkson to pursuant Act on Jencks quired ordinary diligence, high- 2005, January only one week before degree diligence.” Wright, est King trial. Klein, § supra, & 559-60. Thus, time put the first The district court concluded that Hink- inju- notice of Swisher’s claimed battlefield sufficiently diligent son had not been ries was on October 2004. On discovering wrote, It new evidence. 14, 2005, sought when Hinkson’s to counsel Court finds that Defendant “[T]he is un- reopen his cross examination of Swisher to able establish that the failure to discov- order question him about the Tolbert er this evidence not due to his coun- letter, court, counsel stated “For lack diligence.... sel’s [T]he Court quite [sic], sometime we trying have been finds defense counsel had ample time dig military history into his because we investigate prior Swisher’s record Then, don’t believe trial, it’s accurate.” after but diligent was not in pursuing the *18 pulled “replacement Swisher DD-214” issue.” out of pocket, his Hinkson’s counsel stated support In of its conclusion that Hinkson at the sidebar that the defense had “been not been had the district diligent, court trying get to military Mr. Swisher’s rec- pointed out that had testified to ninety days-, ords have we for receiving injuries” “battlefield from his very little control over hap- when that military during service an October added.) pens.” (Emphasis January 2004, deposition in civil a suit involving ninety-five days after 11. October Swisher and rep- Hinkson. Thus, by Wesley Hoyt, resented that suit we from one know the uncontradicted the two attorneys representing him trial that transcript Hinkson’s counsel criminal support his case. In further tried military its to obtain Swisher’s record conclusion, the court pointed immediately district out his deposi- after October 11 following a Wednesday, au- government that On know tion. We also weekend, had thorities, long holiday counsel defense counsel in- whom defense over to control,” respond. slow “very were had they little the court that learned formed anything provide not government The did recorded two different that Swisher had it the Tolbert provided Hinkson until County, DD-214 Idaho forms with of Swisher’s testi- very day letter on the DD-214 “de- that earlier-recorded hardly can claim mony. government The ... any void of honors medals.” diligent when that Hinkson was they that had spoken stated Counsel also immediate- information sought counsel Personnel Records to staff the National 11 deposition, October ly after Swisher’s who that the Center stood Center stated ninety government took and it the Tolbert letter but by the conclusions of days to respond. would not release additional documents Hinkson’s my view, counsel were dili- subpoena from a about Swisher without be for evidence could gent looking judge. agreed to subpoena The court Indeed, they to impeach used Swisher. file, which military Swisher’s arrived two finding such evidence. were successful later, days January 21. Friday, on efforts, defense counsel As a result of their military The court kept Swisher’s file to from letter the Na- received the Tolbert weekend, over review then dis- tional Records Center while Personnel Monday, January it to closed counsel stand. letter still on the The Swisher was day the last full before did not ac- recounted that Swisher enter closing arguments. court ruled The that it duty It stated that tive until to recall would allow the defense Corps record has been “Swisher’s Marine examination, further but cross would carefully by Military Awards examined not allow the defense to introduce into ..., has Branch and that office stated documents that he to show was ever his record fails further obtained. court stated that it for, any person- or awarded recommended mini-trial during did not want conduct a al decorations.” put experts the government which would reasonably viewed the Hinkson’s counsel explain on the stand to documents. exactly the im- Tolbert as sort of letter concluded, Once Hinkson’s trial the de- seeking. been peaching evidence obtaining diligent fense was the evi- Swisher, when con- hoped Counsel Woodring from and Miller. It filed dence letter, fronted would forced with the just trial one its motion for a new over com- admit that he was not decorated month after the conclusion of trial. See purported be. Counsel bat veteran 33(b)(1) (providing Fed.R.Crim.P. that mo- Swisher, hardly anticipated could “grounded newly tions for new trial letter, pull after being shown filed discovered evidence must be within 3 forged pur- from his document pocket added)). (emphasis after years the verdict” account porting superseding to provide moment, Until that of his service. own duty had its there reason for defense to was little military record, investigate hav- *19 of Swisher’s “re- suspect the existence possibility “the real ing been alerted to DD-214,” suspect alone placement let testimony.” N. false Commonwealth of forgery. that the was a document Bowie, 1109, 243 Mariana v. F.3d Islands (9th Cir.2001). the govern- 1118 Because DD- “replacement After learning of grand in the ment had participated 214” on defense Friday, long it before Hinkson’s investigate authenticity. proceedings, its knew quick was 1118 given

counsel that Swisher had potentially ton clearly test is framed terms of what false about his military experi- will happen on retrial rather than what ence. grand jury testimony Swisher’s first happened original at the trial. See Har in April years 2002. This was two (“[T]he rington, 410 F.3d at 601 three months before deposition, must indicate that a new trial prob would years and two and sixth months before ably in acquittal.”); result see also Kras During Hinkson’s trial. if period, it ny, (“Yet, 607 F.2d at 844 always we have so, government had wished to do could required a showing that the new evidence easily have obtained Swisher’s official mili- would ‘probably’ result acquittal an tary file determine whether its star upon trial.”); (ex a new n. id. witness telling the truth. But so far plaining that materiality probability shows, as the government record made really “are two means measuring no effort to do so. thing”). same below, As I discuss in ad government

The argues now that Hink- dressing Harrington’s fifth requirement, I son was not diligent investigating Swish- conclude that the newly discovered evi er’s record. But for two and a dence of Swisher’s fabrications it makes half years, government was the probable that a new trial will result virtually made no effort to investigate the acquittal. Thus, I also conclude that the trustworthiness of its star witness. Fur- new evidence is material Harring under ther, government it was the that took nine- ton. ty days to respond to request Hinkson’s majority The relies evidentiary rul- immediately after Swisher’s October 11 de- ings by made the district court. It notes position for information about that the district court held that documents record. Yet government now has the showing that Swisher lied about his mili- nerve argue that it was Hinkson who tary record were inadmissible under Fed- was not diligent. It is almost incompre- 608(b). eral Rule of Evidence majori- The hensible to me that the would ty further notes that the district court make that argument. It entirely is incom- excluded the evidence under Rule 403. As prehensible that the majority accept above, discussed the district court’s evi- it. dentiary 608(b) ruling under Rule wrong law, as a Material to the matter of ruling Issues at and its Trial under Rule 403 was an abuse of discretion. part The third of the Harrington test majority (erro- does not merely hold requires newly discovered evi- neously) that the evidence was correctly dence be “material to the issues at trial.” excluded the district court. It goes In the context of a new trial motion under further, suggesting that because the dis- Harrington, materiality has a special trict properly court impeach- excluded the meaning. Materiality under Harrington ing documents from evidence under Rules does not require that the evidence in ques- 608(b) these documents could tion would have been material at origi- have no material effect on retrial. Even Rather, nal trial. materiality under Har- true, this were this is irrelevant under rington requires the evidence in Harrington. question materiality test under materially will alter the result on Harrington is not cases, retrial. whether many newly there will dis- be little practical See, no covered difference. evidence—the Miller and e.g., Unit- Woodr- ed George, ing States v. 420 F.3d affidavits—would have been admissible (9th Cir.2005) (analyzing materiality during Hinkson’s first trial. The test trial). terms of the first But the Harring- newly whether discovered evidence *20 ary retri- 21 and which the court also acquittal result on received probably would day part al. later that as of Swisher’s official file; third, and remainder military the the part in detail in five of As I discuss file, military official which the Swisher’s test, I conclude that the Miller Harrington of January court received the afternoon probably affidavits Woodring and on retrial. The affida- acquittal result in 21. into have to not be admitted

vits would trial, the During court concluded district govern- The to have this effect. evidence these neither that documents established lied ment now conceded that Swisher has testimony that was false nor that Swisher’s record, did not military that he about his DD-214” was “replacement the fraudulent. combat, he the engage in that not earn did Monday, 24, after January reviewing On he wore on the witness Heart military file, the including Swisher’s Dowl- stand, he did not earn of the that letter, military weekend, records to he claimed ing other which over the the court told entitled, that he brandished was outside the of the presence counsel in front of forged “replacement DD-214” “very it found the difficult that file sides now the truth. jury. the Both know decipher,” stated that “the truth of the and is asked If Swisher takes stand was “not at matter” all clear.” court record, if he is about his that told counsel the documents file he lied about asked whether under oath self-authenticating “neither nor were self- trial, the first the truth will that record at conclusively explanatory” did “not de- al- necessarily come out. There are two cide the The court concluded that issue.” truth, the If Swisher tells the ternatives. it “not at all that it convinced” had testimony. through truth come out his will enough question “resolve the lies, If will have not of whether or the document that Mr. the rec- obligation correct professional pulled out of is false pocket testimony of its star ord and to disown not.” witness. The district court that re- stated Neither Cumulative nor mained uncertain the truthfulness of Merely Impeaching authenticity Swisher’s and the test part Harrington The fourth DD-214,” “replacement despite requires the new “neither evidence be gov- file was a fact merely impeaching.” cumulative nor ernment record that the court itself had subpoenaed, and the fact despite a. Cumulative Dowling file contained the letter. The court concluded that “[t]he The district letter, Dowling by an officer written proffered of both documents is substance Marine Headquarters Corps, the U.S. generally cumulative of new and plain that Swisher language stated previously available information.” any personal military not earned commen- “previously available information” to which “replacement DD- dations referred consists of the docu- court forgery. 214” was Another factfinder light different that came at three ments have found sufficient to may this evidence first, the trial: the Tolbert points during and a forger that Swisher liar. show cross letter used defense counsel to explicit saying court But the district second, 14; examine Swisher then that it found the evidence before letter, Dowling prosecution which the inconclusive. gave morning court on the of Janu- it was to the *21 sum, only The district court stated that “the the court stated at trial that way” uncertainty to resolve the surround- the evidence before it was insufficient to ing the “silent file” would be to hear from allow it to determine the truth falsity “a records custodian from the National of Swisher’s evidence. Defense counsel Personnel Records Center or someone who presented court, then support to the is familiar more with records and trial, the motion for a new precisely the any decorations than prosecu- us.” The additional evidence the court and the agreed tor with the court’s assessment and prosecutor said was needed to resolve the added: uncertainty. circumstance, In this What would really [the defense] have new possibly evidence cannot be consid- resolved, prove, if this were to be is ered cumulative. ... signed substitute DD-214 majority concludes that the Miller in, Captain Woodring, believe, I Octo- Woodring affidavits are cumulative be- signature ber '57 —that ... Cap- cause attorney already “Hinkson’s tain Woodring forged; was I and would proffered evidence that ‘Replacement such suggest that probably would resolve DD-214’ form was a forgery, in the form whether it’s correct or not. How of the Tolbert Dowling Maj. letters.” prove would that something that was Op. 585 majority F.3d 1266. The signed 1957-1 very doubt much Mr. ground be on firmer in so concluding the Woodring us, is still with but don’t district court had agreed with this state- know. However, ment. the district court was Precisely the additional evidence the very in saying clear precisely opposite court said lacking was supplied by majority what the says. now As I have Hinkson in his motion for a new trial in just explained, the district court concluded the form of an affidavit from Chief War- file, personnel Swisher’s entire includ- rant Officer Miller. Miller is the U.S. ing letters, the Tolbert Dowling Corps Marine Liaison Officer to the Na- insufficient to “establish that the replace- tional Personnel job Records Center. His ment DD-214 was a forgery and that is to “evaluate the authenticity of informa- Swisher had lied about receiving military tion, records and documents affecting indi- awards.” Given the district court’s view of vidual Defense Department transfer docu- available, the evidence then impossible is ments including DD Forms 214.” Miller to conclude that the Miller and Woodring concluded, after a thorough investigation, affidavits are cumulative. replacement DD-214 awas for- gery and that Swisher had not earned a b. Merely Impeaching Heart or personal other com- mendation. Impeaching may properly sup- port a motion for a new trial under Rule

Similarly, precisely the additional evi- Indeed, we have expressly rejected prosecutor dence the lacking said was the proposition that “impeachment supplied in evi- the form of an affidavit from ... dence is never sufficient to warrant a now-retired Colonel Woodring. As it new trial out, (to under turned Colonel Fed.R.Crim.P. 33.” Woodring Unit- use Davis, words) (9th ed v. prosecutor’s States 960 F.2d “still with us.” Cir.1992) Colonel Woodring (emphasis stated unequivocally original); see also Wallach, (2d his affidavit that signatures United v. on both the States 935 F.2d 445 purported Cir.1991), 1957 letter to Swisher and the as (concluding amended replacement DD-214 forgeries. were new evidence impeaching government’s *22 government’s trial that the star to ered after sufficiently powerful was witness central trial); Tag- “utterly unworthy being of States v. a new United witness require (ex- (7th Cir.1991) 413, lia, consistently 415 lied F.2d believed because he had 922 using im- prohibition cases”); on Wright that the plaining string previous in a of 3 et a new trial to secure 557, 560, evidence peachment al., § supra, (noting at 563 value”); at face Bal- “taken not be should usually evidence is “not suffi- impeachment States, 915, 917 224 F.2d estreri v. United trial,” justify a new but that this is cient to Cir.1955) (“To (9th every case a deny rule,” flagrant an “invariable and “in ground on the of a new trial motion for suffice”). may cases for the sole rea- evidence newly discovered a denying In Hinkson’s motion for new im- ‘merely the evidence son trial, the district court wrote that “the injustice.”). lead to might often peachment’ [ie., evidence the Miller and proffered enforcing a recognized in Davis We impeachment evi- Woodring is affidavits] impeachment evi- prohibition per se for a dence and so is not valid basis new a new trial would be as the basis for dence apparent trial.” It is from statement 33, spirit of Rule with the inconsistent mistakenly that the district court believed a new trial granting “permits which law, that, impeachment as a matter of jus- ‘if in the interest required motion may provide evidence never basis for ” Davis, perA se F.2d at 825. tice.’ 960 discussed, just our new trial. As cases do inconsistent with would also be prohibition not so hold. a “cate- refusal to draw longstanding our majority concludes that the Miller The types of evi- distinction between gorical Woodring impeaching affidavits are 415; F.2d at see also Taglia, 922 dence.” satisfy and therefore cannot the fourth States, 150, 154- v. 405 U.S. Giglio United writes, Harrington. It requirement (1972) 763, 55, L.Ed.2d 104 92 S.Ct. 31 “[E]videntiary admission of the extrinsic exculpato- (refusing distinguish between Woodring Miller and affidavits would serve Brady evidence ry impeachment impeach other than to Swish- purpose no Illinois, context); 360 Napue v. U.S. testimony military record er’s as to his (1959) 1217 3 L.Ed.2d 79 S.Ct. testimony rather than his as Hinkson’s exculpato- (refusing distinguish between Maj. F.3d at Op. solicitations.” 585 1266. in- ry impeachment evidence cases majority mistakes the nature of the The misconduct). Ac- volving prosecutorial They affidavits. are Woodring Miller and in Davis that cordingly, recognized we jury con- powerful enough permit sometimes, testimony inculpating that Swisher’s clude impeachment evidence newly-discovered only uncorroborated Hinkson —the testi- that, if it to be may powerful be so were mony implicating Hinkson the three fact, by the trier of it could believed jury him— counts for which the convicted testimony totally in- the witness’ render “totally incredible.” case, if the witness’ credible. such pro- uncorroborated and were Probability Acquittal on Retrial only evidence of an essential vided case, the government’s Harrington requirement element fifth The ‘materi- impeachment evidence would be new evidence must indicate that that “the Harrington al’ under [the test]. probably trial would result ac- a new I conclude that this new evi- quittal.” 825; F.2d Taglia, at see also 960 F.2d probably acquittal result in dence would that a new trial would be (holding at 415 comparing I so conclude after Rule if it were discov- retrial. warranted under (Count 10) presented at trial on the three so- dren of Cook and the children (Count 11). licitation counts on which Hinkson was ac- of Hines acquitted quitted, and the three counts on which he Hinkson on these counts. was convicted. at trial issue was not Hink- whether I apologize length for the of the discus- son Harding asked and Swisher to kill *23 follows, sion that but is unavoidable. A Cook, Hines, Lodge. and The evidence

judge who is asked to decide whether “a persuasive was that he had done so. The probably new trial in acquit- would result issue was whether Hinkson had been seri- necessarily tal” carefully must examine is, in requests. ous That the issue was presented evidence that was in the first whether he had an actual “intent” that trial, and, corollary, as a the evidence that Cook, Hines, killed, Lodge and which likely presented to be in the second trial. 373(a). required § under 18 U.S.C. A judge ruling on a may new trial motion Only Hinkson was serious in soliciting choose not to describe that evidence in Cook, Hines, the murder of Lodge— and detail, but he or she necessarily must con- is, only if he had an actual intent that it. sider importance Given nature and they be criminal killed—did he commit a case, of this I it in describe detail so that offense. may reader understand the basis for jury acquitted The outright Hinkson my conclusion. three of the charging nine counts solicita- Three solicitations to murder were 373(a). § tion violation of On these charged in Counts 1 through 8 of the counts, three jury concluded that the counts, indictment. In these govern- government had not shown that Hinkson charged ment that Hinkson had solicited had been serious in soliciting murder on James “in Harding or about January 2008” jury occasion. The up could not make (Count (Count 1), to murder Cook Hines its mind counts, on three more of the (Count 3). 2), Lodge and jury The acquit- unanimously unable to conclude that Hink- ted Hinkson on all three of these counts. son had been serious in soliciting murder Three more solicitations were charged on that jury occasion. The was able to Counts 4 through counts, 6. In these conclude unanimously only on three government charged that Hinkson had so- 7-9, counts—Counts involving counts licited Harding James “on or about March Swisher-—that Hinkson had been serious (Count 4), 2003” to murder Cook Hines in soliciting murder. To assess the likeli- (Count 6). 5), (Count Lodge jury acquittal hood of an on retrial on the three deadlocked on these three counts. (Counts 7-9), Swisher-related counts Three more charged solicitations were compare the evidence on the three Har- through counts, Counts 7 In9. these (Counts 1-3) ding-related counts on which government charged that Hinkson had so- Hinkson granted outright an acquittal. licited Swisher “between about December 2002 and February 2003” to murder Cook More than half of the trial (Count (Count 7), 8), Hines Lodge provided background evidence for all of (Count 9). jury returned a verdict of charged the counts in the indictment. guilty on these counts. background This evidence showed that operated Hinkson owned and a lucrative

Finally, two threats to commit murder business called WaterOz in Grangeville, a charged were in Counts 10 and 11. In counts, small these town Idaho. WaterOz bottled wa- charged that Hinkson dissolved, made ter statements to Anne Bates into which had been by a in which he threatened to murder the chil- secret process supposedly invented Cook, Hines, Hinkson, ding Lodge. to kill very particles of minerals As small According above, gold platinum. acquitted such as noted Hinkson, medici- the water has marvelous on these counts. Hinkson advertised and properties.

nal supporting The evidence Counts water over the Internet. magic sold his through 3 was as follows. November tax, pay federal income Hinkson did not 2002, Harding or December and Anne ground that he was not on the asserted Bates met Hinkson at a “health forum” in (In separate obligated to do so. legally time, At that Southern California. Har- panel affirmed appeal, three-judge our ding manager a restaurant South- on his tax Hinkson’s criminal conviction Previously Harding ern California. offenses.) structuring Hink- currency “in bodyguard been and had worked *24 paranoid. and He was son was unstable entertainment field.” He had most recent- continually people, including that worried ly paranor- “hosted” radio shows on “the employ- officials and his own mal”; before that his radio work had been ees, trying to take WaterOz from were shows, shows, “comedy morning afternoon participated After and Hines him. Cook drive, entertainment.” His last radio work in early-morning in an raid of his home years was three before he testified. repeatedly November Hinkson they had tried to murder him. claimed forum,” Hinkson, After the “health Har- that an repeatedly Hinkson also claimed Bates, ding, and others went out to several Albers, previ- who attorney named Dennis meal, During eat. Hinkson offered ously plaintiff a in a suc- represented job Harding Bates a at WaterOz. and him, trying against cessful suit was to at Grangeville begin- Bates drove to him. murder of Hink- ning stayed 2003 and at easily and developed grudges Hinkson son’s house. a tenaciously. special them He had held night Harding On the second and gov- federal employees dislike for stay, Harding sitting Bates’s was at the ernment. Sometimes his talk was some- nearby. Har- kitchen table. Bates was For he talked to example,

what comical. him ding testified that Hinkson handed “a a and a Harding “fed-a-pult” James about money.” Harding responded large sum of According Harding, a “fed-guard.” to joke: a do I with crude “Who “fed-a-pult” catapult a device to feder- was According Harding, blow?” Hinkson canyon an oncom- agents al into a or into like, responded “something ‘It’s not who “fed-guard” something train. A ing was you you have to blow but who have to your “on the front of car like a cattle put ” testified, kill.’ “I Harding could make this his talk was not comi- guard.” Sometimes [Cook, Hines, money killing much and example, at all. the evidence at cal For Lodge]. He had also a wad with him of multiple trial showed that Hinkson asked sort; supposed and that some occasions, Cook, to kill people, multiple $10,000. $10,000 There was a flat another Hines, Lodge, and that Hinkson re- fee, $10,000.” Har- and this was wad kill said he wanted to torture and peatedly “pulled then ding testified Hinkson and Hines’s chil- people, including Cook’s But, joke.” it back ... became a dren. testified, Harding “I assumed that I was 1-3 Supporting a. Evidence Counts further, He “And being tested.” testified $10,000 up, thought came in when the through charged Jan- Counts Har- was his test.” uary 2003 Hinkson solicited James Bates, kitchen, who was also in the testi- episode.

fied about the A. No. The ... second visit it wasn’t We were the table the kitchen.... specific. just rhetoric, It was malicious saying something along He lines saying. killed, like I’m He would be people he would like some of these executed. Dave becomes a madman dead, money and he had a lot of that he will, when he talks about it. He literal- produced from somewhere. IAnd don’t ly, get very angry. It’s anything you manner, if-maybe joking know can think of grew that is wild. It [ie., said, Harding] offered it to J.C. grew each time. know, this, “Whoever does this is theirs,” something along visit, those lines During this second Hinkson asked from I can what remember. Harding get guns ammunition for kept Harding the house. testi- prosecutor say asked: “Did he it was answered, fied that Hinkson joke?” did not seem to know say She “He did not joke, much guns, no.” about very that he was Harding interested what knew about Bates remained in Hinkson’s house them: my talked knowledge “[W]e Grangeville, Harding but went back to guns I grew up and that guns around bring Southern California to Bates’s things *25 shotguns. and He back in a truck. wanted to Harding’s U-Haul On know how again stayed house, my was, return he extensive background Hinkson’s the basics “probably” during the second week of got Jan- of how I why into it and I was into it.” uary. Harding testified as follows: Harding testified that he had worked as a

Q. you Did bodyguard, have further discus- and that Hinkson knew him sions with Mr. Hinkson where he talked through a friend who body- was also a feds, about these three federal officials? guard: Every A. time I talked to Dave. That Q. you How do you know he knew

was on every his mind time when we through another bodyguard? every talked on occasion. They A. good were They friends. Q. happen Did that on the second occa- were close friends. sion? Q. Who is that? A. Absolutely, yes.

A. Mark Glover.... Him and David—-I Q. say? What did he don’t know how—are very close friends. IAnd know Mark die; through doing securi- they A. That need to they are work, demons; ty they bodyguarding. need to be tortured. It was sick stuff that I coming don’t like them; my out of mouth.... I they hate Q. you Have bodyguard? worked as a demons; they die;

are they need to A. Yes. killed; need to I got people working on that. You never know he Q. you Have worked with Mr. Glover? is kidding or serious. I want their A. Yes. cut; tortured; I throats want them Harding very friendly want them taken out became and shot with knee caps having and told who is Hinkson frequently stayed done at his why being it’s done. ... house in Grangeville on the weekends. Q. visits, say During Did he how he those Agent repeatedly wanted Hinkson Hines killed or Cook, Hines, harmed? killing discussed Lodge.

1125 device, nothing incrim- you go back of the said Q. the occasions On inating Mr. on that occasion. Grangeville, you see up Hinkson? Supporting b. Evidence

A. Yes. through Counts 7 9 him same you talk to on the Q. Would federal offi- subject matters of the three through charged Counts be- cers? February tween December 2002 and Extensively. A. Cook, kill Hinkson solicited Swisher to things these Q. above, Did he mention Hines, Lodge. As noted more than once? killing federal officers jury convicted Hinkson on these counts. yes. Every spoke, time we A. much already I have described Q. many times? How supporting through Counts 7 9. I Fifty____ A. recount it here in more detail to facilitate a a time when he also Q. Did there come meaningful comparison to the evidence money? you offered through supporting Counts 3. Swisher A. Yes. wearing Purple pin took the stand Heart direct, folksy lapel. on his On he was Q. relationship to when first garrulous: trip in Grangeville, that first came

early January, when would be the sec- Swisher, Q. Mr. how old of a man are you money? time he offered ond you? weeks, couple maybe.

A. A yesterday. A. I turned 68 offered Har- The second time Hinkson Q. You live Idaho? money, driving the two men were ding *26 Yes, A. I do. that Hinkson Harding the bank. testified Q. long? For how $10,000with him. had My gosh. thirty years. A. Over Q. say ... What did he ‘I leading. A. Just You could use you you Do need cash? Do need cash. Q. you an How did have interest money. money. You could use this extra mining? I knew if he was Think about it. never Well, friend, A. I an old who is have always talked kidding. serious or He now deadbless his soul—and he was one it; always it and said and it was about epitome of an Idaho of the—he was the leading, supposed like I was to bite. range day rider till he died. He eventually convinced Harding became old, single-action carried an Colt .45 and soliciting

that Hinkson had been serious range country. rode the in the back Cook, Hines, Lodge. him to kill When Q. My question you is: How did man- again him in March of Hinkson solicited mining]? to switch careers age [to F.B.I. He Harding contacted the that, getting A. I’m counselor. Cook, her, spoke Nancy telling “Some- your Exper- That He Had body going attempt to make an Swisher Testified life, believe, At phone “Assaying,” if I tise In And Testified Some I don’t make Length About His For Wateroz arranged Harding The F.B.I. Work call.” The Concentration Of Minerals Testing to Hinkson’s house with a record- go back Then The Prose- body. Possibly Dissolved The Water. ing device concealed on his Military Back- cutor Asked Him About His suspected the existence because Interest In That A. I ground, probably And Hinkson’s believe it was in Decem- Background: ber, sometime December of

Q. you Have served in the Armed gentleman Ukraine, ever he had a from ... Forces, Mr. Swisher? visiting.... He said going we were A. Yes. out an employee’s meet who lived Q. you country, Did Mr. Hinkson ever ask Mr. Rich Bellon.... [W]e your in the Armed about service Forces? during shot day. course of the A. Yes. Q. Who did?

Q. you branch did serve in? What Hinkson, A. Myself, Mr. and the Rus- Corps. A. United States Marine gentleman. sian Q. you Did ever discuss that with Mr. Hinkson? Q. you bring? What did A. Yes. I brought Henry A. a .22 lever-action Q. And what was the your nature of rifle Browning and .32 semi-automatic discussion with him? pistol, and .45 auto. recall,

A. IAs Mr. Hinkson stated he Q. your How was shooting? Navy. had been in I indicated I had always A. I hit what I aim at. Corps. been the Marine He asked Q. How was Mr. shooting? Hinkson’s I had served in combat situations. I A. terribly good. Not him, ... told ‘Tes.” Q. you shooting What were at? Q. you Wfliat else did he ask combat situations? Well, A. we shot trap some with a shot- gun. I only maybe A. He asked if I shot any- had ever killed a half dozen one. recently times because I a pacemak- installed; Q. er you say? shotgun, Wfliatdid a twelve- gauge particularly, jars kind of him, asked, A. I told “Yes.” He “How around a little. him, decided I many?” quit And I told many.” “Too time, in due I my targets. but hit IAs Q. Was one conversation sever- recall, I don’t believe hit any al? David his. may A. It happened over a period

of time. Swisher described their “trap shooting” as Q. period What of time? follows: Oh,

A. probably off throughout and on person shooting who wasn’t year clay pigeons throw the for the others. spring-loaded You have a hand unit that testified that Hinkson knew out, will kick them I expect, thirty, forty that he expert was an with firearms: yards any all, without problem at air- Q. you Did ever claim to Mr. Hinkson borne. ... And the challenge is to hit you that proficiency with firearms? target airborne when it’s across IA. believe he knew that I an you. from rifleman, expert pistolman.

Q. How did he know that? that very testified Hinkson was

angry Albers, at Dennis whom Swisher him, probably A. I told and he ob- also disliked. Swisher testified that some- my served shooting. time shortly April after 2002 Hinkson told Q. private” him “in that you What was the occasion that he wanted Albers and went shooting with him? family his members tortured and killed: that, course, family. And I said of I his that Mr. Hinkson said? was it Q. What done, And he said he wanted did. Well, by talking about he started off A. basically, family with Ms. Cook and her Albers like to Mr. how he would wife, family. his And I his and Mr. Hines and family, particularly and his him, killed. And he tortured and that he out Margaret, again, told of his of the tor- description quite I, also, went into And went into a little bit mind. ture. of a dissertation because David was a said, ‘Well, was that? Q. And what friend at that time. And he know, you’re like to I know used to it. I you said he would A. He would-he bound, gagged, said, and stripped, mean, I you people.” see them have killed cigarettes or ci- then burned with ‘Yes, and people I in have killed defense Albers was down gars. And then while others; my you life and but what are observing occurring this on his knees murder, and talking about is there is family other members his wife and you here. significant difference And he wanted to might present, because, get your need to it out of head over her head so plastic bag put have a you talking way, if continue it will to death that she would suffocate get you you trouble. And continue him, family other along front with way talking you think are proce- he wanted that members. Then this, report serious about I will have to Albers, Mr. himself. repeated dure it to the authorities.” something to do Q. Did he want Q. respond How he to that? did regard? Well, got again; A. he his smile describing what A. When he finished changed subject. then he done, then he offered me he wanted Swisher testified after Cook and $10,000 a head to do it. in a raid on Hines arrested Hinkson his like when Q. was his demeanor What hostility house November to- telling you things? these he was testified, ward them intensified. Swisher at that time. A. He was cool calm further, that Hinkson had third conver- to Mr. Q. your response What Judge Lodge sation which was added Hinkson? the list of intended victims: A. I told him he was out of his mind '03, approached A. [I]n knock that kind of BS and he needed to again[,] through me went the names off, think about it. and I didn’t even him, people that had offended Q. respond to that? How did he by the name of judge added a federal reply just A. smiled and then didn’t He I, Lodge essentially, that list. And subject. changed dropped point the hammer at that that he had a further Swisher testified David. *28 July “in Hinkson’s trailer” conversation Q. you Let me first ask what he asked August of 2002: or regarding people? to do those Q. say did Mr. Hinkson about What way A. He wanted them all treated the Nancy how he felt about Cook Steve regarding the initial offer Albers Hines? family handled. and his had been treated in the A. He wanted them anything in Q. you to receive Were initially as he had de- same fashion that? doing return for family Albers and his scribed for Mr. $10,000 I At a head. And A. least .... if I remembered the asked [H]e that, note with all of the Mr. Albers and made mental regarding offer he made time, Oh, I think people probably just he named at that we were A. it was $100,000. well over before he was rearrested in '03. I’m not

quite sure of the date there. $10,000

Q. Nancy Did the offer include Q. you Are talking spring about or Cook and Steve Hines? summer or '03 what? Oh, yes.

A. A. No. It probably would have been Q. itDid include Mr. Albers? getting close to summer Spring, there. A. Yes. summer, through somewhere there. Q. Did it include the children of those April, thinking. Sometime after I’m people? Q. right. All A. Yes. wrong. A. I might Q. did he What want done with Q. you And who did contact? children of people? those I County A. contacted the Idaho Assis- A. Treated the same fashion. tant Prosecutor from Grangeville. Q. How? Now, Q. Prosecutor, is he State as A. Tortured and killed. opposed to a Federal Prosecutor? Now, Q. mentioned, time, you you this A. Yes. That’s correct. in a reacted different fashion? Q. you And express did some concern Yes, A. I did. I’m I afraid became to him? hostile, myself, point bit at that in time. A. I did. Q. you say? What did Q. it regarding Was Mr. Hinkson? A. Yes. him, A. I regarding told these matters Thereafter, Q. you were contacted trying people having to kill or me FBI? on, murder them for him and so that I never wanted to hear that again and to A. Yes.

fuck off. And he left. Q. you? Who contacted Q. What was his demeanor like when A. Long. Mr. Will he asking to do this? Q. person That’s the here at the table? A. He in pleading was almost fashion Correct, A. sitting right there. that last time. telling He was me how record, THE COURT: For the the wit- they harassed he had been and how ness has Special Agent Long. identified hurt him they just out to not were you, [THE Thank PROSECUTOR]: him, get too, him but to just kill and he Your Honor. I ques- have no further done; had to have this and as his best direct, tions on Your Honor. friend, time, put as he it at that he felt should do it. government’s direct examination of forty-three pages Swisher filled of tran- Swisher testified that sometime examination, script. Cross including spring finally summer of con- the Purple about tacted a law enforcement official. Howev- er, DD-214,” Heart and “replacement he was unsure about the date on which so, eighty-three he did and he filled unforthcoming pages. During examination, details of what he told law enforcement cross Swisher made clear *29 officials: that on each of the three occasions when

Q. Albers, Cook, you did Hinkson solicited him kill anyone When contact in authority Hines, legal regarding Lodge, Mr. Hinkson? there were no wit- testimony, never men- he In his own Swisher “When plainly: stated Swisher nesses. me, had wanted to hire tioned that Hinkson solicitations three direct made the Nor did bodyguard. him as a Swisher private.” they were made had been in- ever mention that Hinkson was de- cross examination Much military background in his be- terested hostility be- showing the extreme voted bodyguard. a to hire a cause of desire Hinkson. This hostili- tween Swisher took the stand his own de- Hinkson supposed after Hinkson’s ty had arisen already had testified fense. Swisher murder, to commit of Swisher solicitations Hinkson had solicited on three occasions to the solicitations. for reasons unrelated him “in to commit murder. private” key of Hinkson’s Bellon was one Richard specifically having denied made Hinkson indeed, WaterOz; trap employees such solicitations: at Bellon’s house. place had taken shooting Hinkson, Hink- Mr. indicated Q. Bellon sued Mr. Swisher in late Sometime by you on a brought Swish- that he had been solicited response, son. suit, third-party you Do recall apparently as number of occasions.... er into the testimony? counterclaimed then said that in his defendant. Swisher $500,000. than for more against Hinkson A.... Yeah. and Hinkson between Swisher

Relations Hinkson, you Q. Mr. did ever have accused that Swisher so strained became with Mr. Swisher where communication to kill him. hiring someone Hinkson of anyone? him to murder you asked “at a remote that he was testified No, A. sir. County com- with Vietnam area Idaho different recol- Hinkson had somewhat that he friend.” Swisher said veteran bat the excursion to Bellon’s house. lection of when, according sitting in an outhouse Swisher, they engaged in According to had Hink- hired testimony, someone to his “during the course of the trap shooting However, at him and missed. son shot testified, my “I hit tar- day.” Swisher that he never saw admitted gets.” Hinkson testified: shooting, did the person supposedly who evening that Q. you Do remember the casings footprints that no shell Mr. Bellon’s house Mr. Swisher went to were ever found. you for dinner? with corroborated Swisher’s Only one witness Yes, I A. do. had been interest- testimony that Hinkson Q. And believe there in, impressed by, ed Sep- approximately that that occurred in Richard That witness was background. tember of '02? that Hinkson Bellon testified Bellon. body- as a hire Joe Swisher

“wanted to Yes, just open heart sur- A. before his needed to hire felt like he guard.” “[H]e gery. trained”: he was because

[Swisher] how explain Q. Did [Hinkson] who came Q. And there was someone trained? Swisher was Mr. night? was that? to dinner Who Yes____ that Mr. Swisher A. [I]t Polankio from the Ukraine. A. Roman military background, an extensive combat, that he that he had been evening? Q. gun fired the Who during the war. Mr. people had killed really guns, interested that and A. I’m not tell me about Hinkson would Mostly, Joe him, [Swish- and I shot it twice. past. the details of *30 1130 edly shot from his chair place

er] because he had took in 2003. 7 Counts standing. pretty hard time He was sick. through charged supposedly 9 conduct that place took between December 2002 and Bellon, at whose home the trap shooting February 2003. by place, government took was called testify. government did not ask specific The evidence to these counts Bellon it was true that whether However, in respects. differed some three disease; “pretty was then sick” with heart likely of those differences made it more “mostly ... that Swisher shot from his that the would have on the convicted chair”; Swisher, though ill and Harding-related than counts rather on the chair, successfully sitting hit all of his Swisher-related counts. targets. targets, according Those First, corroborating there was a witness testimony, rapidly Swisher’s had been to one of the charged solicitations of Har- moving clay pigeons thirty airborne to for- ding. Bates was a witness to the solicita- ty yards away. tion in beginning Hinkson’s kitchen at the c. Comparison of the Evidence January. She testified that she saw the through in Counts 1 3 and money “wad” of on the kitchen table and through Counts 7 9 that she heard Harding Hinkson tell background against Hink- Cook, Hines, the money was his if he killed son was the same for both 1 Counts Lodge. Bates testified that Hinkson (the through Harding-related 3 counts had not said that he joking when he acquitted) which he was and Counts 7 contrast, By said this. Swisher testified (the through 9 Swisher-related counts on that there were no witnesses to convicted). which he was It was relevant Hinkson’s specifi- three solicitations. He to all of these counts that Hinkson had a cally testified that all three solicitations paranoid personality; unstable that he dis- place took “in private.” liked interference with his af- Second, Harding and Hinkson were fairs; Cook, particularly disliked good friends at the time of the solicita- Hines, Lodge; and that he had asked They unfriendly tions. became only as a multiple people occasions, multiple Harding’s reporting result of to the F.B.I. Swisher, limited to Harding and to kill that Hinkson had solicited him to commit Cook, Hines, Lodge on his behalf. murder. Swisher and Hinkson also had specific The evidence Counts good been friends at the time of the solici- through through 3 and Counts 7 9 is simi- But, by tations. Harding, contrast First, lar in a respects. number of there enemy, Swisher had become a bitter was evidence that Hinkson believed that solicitations, reasons unrelated Harding both and Swisher were skilled in Thus, the time of trial. Harding, unlike Second, the use of firearms. there was reason, ample Swisher had unrelated to evidence that Harding Hinkson knew that solicitations, to wish Hinkson ill when bodyguard, had been a he was he testified at trial. in using body- interested Swisher as a Third, Harding testified that Hinkson Indeed, guard. Bellon testified that Hink- him January first solicited to mur- son’s interest back- Cook, Hines, der He Lodge. testified ground and skill firearms stemmed from that Hinkson solicited him again March in using body- interest Swisher as a Third, Immediately after the March solici- guard. charged solicitations tation, place Harding took at about the same time. contacted the F.B.I. In an Counts 1 through charged F.B.I., conduct that suppos- help effort to Harding went so *31 respects against in In three the evidence recording device a secret far as to wear in the incriminating stronger evi- Hinkson at trial was Swish- to obtain attempt an contrast, Harding-re- than in the By Hinkson. er-related counts against dence Hinkson solicited testified that lated counts. Swisher to murder shortly April after him First, that Hinkson Swisher testified be- testified further Swisher Albers. particularly qualified him well lieved to be July August him in solicited Hinkson a killer. testified that he to be Swisher Finally, Cook and Hines. 2002 to murder experience Hinkson about his combat told that Hinkson solicited testified Swisher Korea, in and that he had killed “too Cook, murder 2002 to him November many” people. We now know that Swish- Hines, Lodge. testified Swisher er was never combat Korea and prosecutor go did not to a local Idaho he anyone, he never killed let alone “too until some- Hinkson’s solicitations report However, many” there is evidence people. April time after from both Swisher and Bellon that Hink- Hink- Harding was so concerned about story. (falsely son believed the Swisher’s two he went to the F.B.I. within son that claimed) combat experience could well time first solicited months of the Hinkson greater impression on Hink- have made him, immediately after the second Harding’s experience son than with fire- F.B.I., Harding contacted time. When bodyguard. his work as a There arms and good terms. Hinkson were still on he and great deal of evidence at trial —most directly to Harding spoke testified that he of it from Swisher himself—about Swish- Cook, one of Hinkson’s would-be Nancy jury But er’s ill-health. could have victims, thought she and told her he ill-health, despite concluded that Swisher’s a wire danger. Harding then wore him Hinkson could have seen as well attempt in an of the F.B.I. request at the qualified killer. against someone to obtain trap further testified that while Swisher dangerous. By con- clearly thought was he had demonstrated to shooting Hinkson trast, year at after waited least Swisher jury an that he was excellent shot. Albers, him to murder Hinkson solicited might have had some reason to doubt Hinkson nine or ten months after least testimony that he hit all of his Hines, him to murder Cook and solicited targets, given that Hinkson described at least three or four months after very man in a Swisher as a sick who sat Cook, him murder Hinkson solicited jury shooting. chair while But the could Hines, Hink- Lodge reporting before Hinkson, have disbelieved and could well officials. Unlike son to law enforcement that Swisher had indeed believed pros- Harding, Swisher called a local Idaho on that occasion demonstrated F.B.I., though than the even ecutor rather that he was an excellent shot. The threatened, and, federal officers had been that an actual dem- could have concluded Harding, gave specifics no unlike Swisher shooting prowess onstration of Swisher offi- what he told law enforcement about impressive to Hinkson than Har- was more finally contacted the cials. When Swisher knowledge talk ding’s mere no he and Hinkson were prosecutor, local guns. nothing terms. There is longer good Second, during testified that ever the record to indicate Hinkson’s “demeanor” had first solicitation help offered to wear a wire or otherwise cool,” during “calm and and that against been incriminating evidence gather solicitation Hinkson’s “demeanor” third Hinkson. violent, By in a fashion.” who “was not averse to ... dan- pleading was “almost *32 contrast, Harding that he had dif- testified gerous activity,” closing and stated in his ficulty telling whether Hinkson was seri- argument that Hinkson “understood” that soliciting Only ous in the murders. after a Swisher “had served combat and killed Harding in March did second solicitation people.” response to defense counsel’s decide that Hinkson had been serious. produced questions, “replace- Swisher his ment DD-214” on the

Third, witness stand and presented himself as testified that he had seen combat in Korea United States Marine who had been country. wounded the service of his His and earned a Heart. Defense may status as a decorated war hero have counsel asked the district court to instruct been, jurors, for some or all of the an jury disregard be- testimony. additional reason to believe his jury might penal- cause he feared that the jury may particu- The have found Swisher wrongly assailing ize the defense for a war when, larly sympathetic credible and after Although granted hero. the court defense an accusation Hinkson’s counsel that request, counsel’s the court’s instruction to lying Swisher was about his rec- lapel pin referred to Swisher’s as ord, dramatically produced his “Purple Heart “military Medal” and a “replacement DD-214” pocket. from his commendation.” also, jury might The despite the district Defense counsel’s impeach efforts to instruction, penalized court’s the de- original Swisher at the trial focused appeared fense what to be an unfound- Hinkson, fact that Swisher and who were ed attack on a decorated war hero. friends, once were now bitter enemies who Our replay task is not to the first trial had sued and counter-sued each other. except might help predict as it us what retrial, On impeachment of Swisher would would happen Hinkson is retried on not be so limited. The parties now know 7 through question Counts 9. The before conclusively, based on the Miller and us happen is what would at a trial. new affidavits, Woodring forged that Swisher Specifically, question is whether the “replacement DD-214” pur- and his Harrington fifth requirement is satisfied: ported “supporting letter” from Colonel Does the new evidence “indicate that a Woodring, forged he used these new trial probably acquit- would result in documents in an effort to obtain veterans’ tal”? parties benefits. The also now know con- trial, In the original Swisher was the clusively that Swisher never served in only provide witness to direct evidence combat or personal military earned that Hinkson him solicited to commit the commendations, and that he not in- retrial, killings. On the government would jured in private battle overseas but in a have no choice rely but to on Swisher to Townsend, automobile accident near Port supply the evidence of Hinkson’s solicita- Washington. they And now know conclu- say credibility tions. To that Swisher’s sively that during Swisher lied under oath poorly would fare at a new trial an the first trial about participating secret understatement. Korea, combat missions in North trial, At original jurors Hinkson’s action, being wounded in and about receiv- certainly impression almost had the ing Purple Heart. Swisher was a decorated veteran. combat trial, government put At a new could prosecutor described Swisher in his opening testify, statement as a Swisher on the stand to as he “Combat Veteran did from Korea during trial, the Korean Conflict” original that he told Hinkson probably that a new trial would result in Korean War vet- a decorated that he was many” people. “too had killed eran who acquittal. argue could then government seriously

Hinkson, believing things, these Summary government to kill three solicited Swisher Because Hinkson’s motion met all five retrial, time, defense But officials. test, Harrington requirements would know and the counsel hold that he is entitled to new trial truth. *33 counts of soliciting Swisher-related impeach counsel would Swisher Defense murder. not in if it true that he was by asking veteran; in that he had fact a Korean War Conclusion Purple a Heart or other fact not won awards; in fact been in- that he had not errors, The district court committed two in in Korea but rather jured combat either of which was sufficient to reverse its accident; automobile private grant decision and Hinkson new trial. lied to the Idaho Division fact he had would reverse the district court’s denial of injuries and about his Veterans Services Hinkson’s motion for new trial because attempt get in an non-existent medals erroneously precluded the district court he was not enti- military benefits to which introducing Hinkson from into documents enough, already That be bad tled. would evidence to show that Swisher lied about get but it would worse. forged “replace- record and his his counsel would also ask Swisher Defense DD-214.” I ment would also reverse the whether, appeared time he the last district court’s denial of the motion for a Hink- testify against under oath court to newly new trial because discovered son, lapel pin to wore a Heart produced support of the mo- entitled, presented not he was which DD-214,” and lied forged “replacement five-part Harrington tion satisfies the test. time, This de- his record. would not be left defenseless fense counsel response to lie in were to choose Swisher questions because this time the

to these truth. If would also know the government response RHOADES, were to lie Swisher Ezra Petitioner- Paul would be questions, Appellant, Na- to correct the record. See obligated v. 1173; 269, Hayes 79 S.Ct. pue, 360 U.S. (9th Cir.2005) IMSI, Brown, HENRY, Department of the

v. 399 F.3d Jeff banc). (en Idaho,* of Corrections State Respondent-Appellee. short, be a disaster a new trial would jury A new would government. for the No. 07-99023. did, learn, as the first only friends, Hinkson, once had Appeals, States Court of United by the enemies time Swisher become bitter Ninth Circuit. learn, It also as the- first testified. 8, 2010. Submission Deferred March not, no com- jury did lying under oath to serve punction about July Resubmitted 2010. ends, lied under oath and that he had July Filed at Hink- produced forged documents conclude, un- I therefore son’s first trial. test, Harrington part

der the fifth notes Fed.R.Evid. unduly that it concluding would time- (2003). not to introduce Hinkson did seek to consuming confusing jury and the to the “purpose those for sole documents the military admit official documents show- ... witness’ character for attacking the ing that lied about a receiving Swisher Rather, sought Hinkson to truthfulness.” Heart, that, Purple when challenged, specific the for the introduce documents having “replace- lied about a so-called contradicting purpose of in-court testimo Although parts ment DD-214.” some governed ny by evidence is Swisher. Such may record have been Swisher’s by “permits which courts to ad Rule understand, lay for a jury difficult other extrinsic specific mit testi evidence false, easy comprehend. For parts were ex- mony by because contradicted oth is Castillo, ample, Dowling clearly v. letter writ- er evidence.” States was United Cir.1999). (9th 1129, 1132 unambiguous. 181 F.3d It simply ten stated directly that Swisher not been in had wearing took stand the witness combat and had not been awarded thereby lapel pin, a Heart affirma- medals. documents in Other Swisher’s of- had tively stating that he been wounded ficial file—which been sent to serving combat while the United States pursuant subpoena court to its 801(a) “A provides, armed forces. Rule authenticity whose in doubt—un- ‘statement’ is ... nonverbal conduct of ambiguously showed Swisher’s “re- person, person if it is intended as DD-214” was a placement forgery. Given opening an assertion.” Recall that in his before, crucial in the days government’s Swisher’s role statement three Hinkson, prosecutor against as case had described Swisher time would 1114 taken to admit this have evidence could Under States v. Harrington, United hardly probative (9th its outweighed Cir.2005), val- F.3d 598 a criminal defen- ue. dant satisfy five-part must test in order prevail a motion for a new trial: refusal to allow The district court’s documentary this to admit evi- “(1) newly [T]he evidence must be dis- not a harmless error. dence covered; (2) the failure to discover the principal witness on government’s evidence sooner must not be the result which only counts on Hinkson was diligence of a lack of on the defendant’s jury would have formed a convicted. (3) part; the evidence must be material impression of significantly different Swish- (4) trial; to the issues the evidence credibility per- if Hinkson had been er’s must be merely neither cumulative nor introduce evidence that Swisher mitted (5) impeaching; and must military record on about his the stand. lied indicate that new trial probably below, in detail For reasons describe acquittal.” result in this would have called into serious doubt testimony, including all Id. at (quoting United Kulc- States v. describing statements his interactions with (9th Cir.1991)). zyk, 931 F.2d Hinkson. The district applied Harrington court test, citing Waggoner, 339 F.3d at 919. B. New Support Evidence Produced in of Motion for New Trial today What we call the Harrington test “Berry sometimes referred to as the Hinkson’s motion for new trial assert- rule,” nineteenth-century named Woodring affidavits, the Miller ed