*1 intеrrogation because during the second unnecessarily de- officers
law enforcement magistrate to a for
layed presenting Liera 5(a), of Rule
arraignment violation 3501(c), § and the McNabb-Mallo-
U.S.C. Rule. The district court’s admission of
ry Liera made the sec-
the statements not harmless. interrogation
ond We
also hold that the district court erred into evidence Le Chen’s testimo-
admitting statements con-
ny regarding his mother’s smuggling person
cerning the cost of affirm the
into the United States. We ruling court’s on the Miranda
district
waiver and the district court’s instruc- vacated,
tions. Liera’s convictions are remand for a new trial.
we REMANDED.
VACATED America,
UNITED STATES of
Plaintiff-Appellee,
v. HINKSON,
David Roland Defendant-
Appellant.
No. 05-30303. of Appeals,
United States Court
Ninth Circuit.
Argued and Dec. Submitted 2008.
Filed Nov. *4 P.
Dennis Riordan and Donald M. Hor- Francisco, CA, gan, San and Curtis R. Smith, Falls, ID, Idaho for the defendant- appellant. Taxay, F. De Pue and D.
John Michael Justice, D.C., Department of Washington, plaintiff-appellee. for the KOZINSKI, Before: ALEX Chief PREGERSON, Judge, HARRY O’SCANNLAIN, F. DIARMUID KLEINFELD, ANDREW J. KIM WARDLAW, FLETCHER, McLANE W. PAEZ, A. RICHARD CONSUELO M. CALLAHAN, BEA, T. CARLOS SANDRA S. IKUTA and N. RANDY SMITH, Judges. Circuit BEA; Opinion by Judge by Dissent Judge WILLIAM A. FLETCHER. BEA, Judge: Circuit Today we consider the familiar “abuse of our discretion” standard and how limits power appellate as an court to substitute facts, application our view the and the law, facts to for that of the district those court. forms a “definite appeals if the court of
* :!= * has and firm conviction that mistake Introduction time, the been committed.” At the same income pay David Hinkson refused appeals denies a court of standard He asserted profits. tax on his business if to reverse such a determination power forbade States Constitution the United finding “permissible.” the district court’s is taxing person’s federal left to us previously Because it has been by Internal investigated He was income. decide, objective guid- without further Hines, Agent Steven Service Revenue ance, firm whether we have a “definite and tax a conviction for income prosecuted to that mistake has been commit- conviction Attorney Nancy by States evasion United ted,” finding court’s or whether district Cook, States Dis- and sentenced United no “permissible,” there has been effec- Lodge. Judge trict Edward power tive limit on our to substitute our on his tax evasion awaiting trial While judgment for that of the district court. em- case, his friend and Hinkson solicited Today, after review of our cases and to torture ployee Elven Joe Swisher Supreme precedent, we re- relevant Court $10,000 Cook, Hines, Lodge, for kill *5 the “abuse of discretion” standard of state reported Hinksoris so- per head. Swisher a trial factual findings review of court’s as authorities. licitations to federal objective two-part an test. As discussed indicted, tried, and convict- Hinkson was below, newly our stated “abuse of discre- murder for solicitation of the ed requires tion” test us first to consider officials. Swisher tes- the three federal of whether the district court identified the government. tified on behalf legal correct standard for decision of the for a new trial Hinkson then moved Second, issue it. the test then re- before that Swisher had principally grounds to the district quires us determine whether Hinkson, fraudulently himself to presented fact, findings application court’s and its jury, as a judge later to the and and findings legal of those of fact to the correct experience with Korean War veteran standard, implausible, or illogical, were war killing people, but he had no such support may in inferences that be without brief, experience. In Swisher service nor record. drawn from facts out to a war falsely held himself be test, our “abuse of discretion” Applying the new trial hero. The trial court denied rulings. we affirm the district court’s motion. appealed this denial of his Hinkson new Background evidentiary rul- trial motion and several operated Grange- Hinkson owned and by the trial court. ings made ville, water-bottling company Idaho called granted pan- en banc review of We WaterOz, which sold bottled water with the district court’s el’s decision to reverse purportеd health benefits. and, trial motion denial of Hinksoris new below, safety was a water explained we con- Elven Joe Swisher for the reasons nearby independent tester for a water clude that our “abuse of discretion” stan- In hired testing company. The stan- Hinkson dard is in need of clarification. described, an dard, a Swisher to test the WaterOz water on currently grants as it is be- ongoing to a district basis. Hinkson Swisher appeals power court of reverse friends. Swisher told Hinkson of facts tried before came fast court’s determination law, of the United States it, those facts to he was a veteran application and the testified, asked expert again who Hinkson once Swish- Corps and a firearms Marine in the kill people Kore- er to torture and Cook and Hines and had killed number testify families; later this Swisher would their this time he also added War. greatly impress to Hinkson. Lodge again seemed Judge the list. $10,000 “head,” per offered Swisher Swisher, 2002, according In April to do the “pleaded” even with Swisher and kill local Hinkson asked him to torture deed, calling Swisher his “best friend.” family and his be- attorney Dennis Albers declined. legal trou- causing cause Albers had been for Hinkson. Hinskon offered Swisher ble relationship between Swisher and $10,000 per payment. “head” employ- Hinkson soon soured. A WaterOz thought joking Hinkson was brushed ee named Richard Bellon sued Hinkson for suggestion. off the WaterOz, Hinkson in turn control of Meanwhile, refusing pay Hinkson was sued Swisher. Swisher counterclaimed profits, tax on federal income his WaterOz $500,000. than against Hinkson for more prohibits asserting Constitution January body- In Hinkson met in- collecting federal guard-turned-restaurant manager James tax. Attor- come Assistant United States Harding at a “health forum” in Southern ney Nancy and Internal Revenue Cook Harding job offered California. Hinkson Hines led an Special Agent Service Steven him stay at WaterOz and invited investigation possible into tax Hinkson’s Harding Hinkson’s later home. testified evasion. that, during stay, Hinkson handed him testify July Swisher would later *6 “large amount” of cash and him offered 2002, or him if August Hinkson asked he $20,000 Cook, Hines, total if he would kill request regarding remembered his Albers Lodge. Harding and refused. In March did, family. and his Swisher said he and 2003, again Harding Hinkson asked to kill Hinkson told Swisher he wanted Cook and Cook, Hines, Lodge. Harding again and Hines and their families “treated request, refused. After this second Har- “I way you’re same as Albers.” know ding reported called the FBI and Hink- it,” Swisher, prodded used to Hinkson “I son’s solicitations. mean, Swisher, you people.” have killed less convinced this time that Hinkson was thereafter, Shortly in Spring or Summer joking, report refused and threatened to prosecu- Swisher told Idaho state Hinkson to authorities. him kill tor Hinkson had solicited
In November and Hines exe- Cook Cook, Hines, Lodge. and Swisher then home; cuted search warrants on Hinkson’s contacted the FBI the FBI and told Hines arrested Hinkson on tax evasion same. charges.1 magistrate judge The freed 21, 2004, September grand On federal pending Judge Hinkson on bail trial. Ed- jury in Idaho indicted Hinkson for solicit- Lodge
ward J. of the United States Dis- Cook, Hines, ing the murders of and trict Court for the District of Idaho was The contained 11 Lodge. indictment assigned the case. counts: pretrial While Hinkson was on release charges, through charged tax later 1 Hinkson evasion Swisher Counts 3 Hinkson, government charges. eventually indicted United v. 281 Fed. and States (9th Cir.2008). Appx. Hinkson on tax evasion and related 653 convicted
1253 proseсution his name. The also § when he kills to violating 18 U.S.C. 3732 with was, fact, Cook, stated that Swisher such kill to torture and Harding solicited veteran.8 battle-hardened January Hines, Lodge in 2003.3 and called Swisher to testi- through charged 4 6 Counts fy days later. direct examina- three On § 373 when violating 18 U.S.C. with tion, although prosecutor asked wheth- Cook, kill and Harding to torture solicited er had served in the “Armed Swisher time, Hines, in March Lodge a second and accurately Forces”—and Swisher testified 2003.4 Marine that he had served the U.S. charged Hinkson through 7 9 Counts prosecutor did not ask wheth- Corps—the by soliciting § violating 18 U.S.C. with engaged in er Swisher had combat Cook, Hines, kill to torture and Swisher Instead, earned decorations. Lodge.5 and prosecutor questions confined his what charged Hinkson with Counts Swisher had told Hinkson of his combat by threatening § 1156 violating 18 U.S.C. experience. explained he had told of Cook and Hines.7 to kill the children Hinkson he was a Korean veteran War experience.
with substantial combat Trial Swisher also testified Hinkson had Cook, him to torture kill solicited jury began trial two-week Hinkson’s Hines, Lodge. January government’s 2005. The theory of cross-examination, statement revealed its opening Hinkson’s attor- On that Hinkson case as to counts 7-11: ney sought impeach first to murder particular credibility establishing solicited Swisher Cook, Hines, Lodge animosity because Hinkson toward harbored Hinkson. He litigation involving believed Swisher was battle-hardened asked about the two friends, military former veteran with numerous and the bitter feud Marine "Whoever, 373(a): eventually § with intent 5. The would convict Hinkson 2. 18 U.S.C. person engage conduct that another consti- on these counts. *7 use, tuting felony as an element the has use, attempted physical or threatened use of 115(a)(1)(A) (Influencing, § 6. 18 U.S.C. against person ... of another force against impeding, retaliating a Federal offi- or States, the laws of the United violation of by threatening family injuring cial or mem- strongly under circumstances corroborative assault, ber): "Whoever ... threatens to kid- intent, solicits, commands, induces, or of that nap or murder a member of the immediate persuade endeavors to such other otherwise official, family of a States a United United conduct, engage person in such shall be judge, a Federal law enforcement [or] States imprisoned the maxi- not more than one-half imprisoned officer ... be for a maxi- [shall imprisonment or ... fined not mum term of years.” of] mum six pre- more than one-half of the maximum fine punishment scribed for the of the crime solic- jury eventually acquit 7. The would Hinkson ited, both; if the crime solicited is or or on these counts. death, punishable by imprisonment life twenty imprisoned more than shall be for not to, objected 8. Hinkson neither nor moved to years.” strike, judge this statement. The trial in- jury were structed the statements of counsel eventually acquit jury 3. The would prosecutor not evidence of their content. The on these counts. closing opening or repeat did not this claim in argument. assign this Hinkson does not eventually deadlock on these 4. The would appeal. statement error on counts. military Hinkson’s belief in Swisher’s ex- Hinkson’s developed between them. inconsistencies attorney also attacked the reason he had solicited perience was testimony. Swisher’s particular to commit the mur- Swisher ders. After he had finished his cross-examina- animosity for such toward tion of Swisher attorney re-opеn Hinkson’s moved Hinkson, attorney for a Hinkson’s asked inquire cross examination to about Swish- judge op- sidebar conference with military service and the ob- purported er’s counsel, hearing outside the posing ject lapel. prosecutor suggest- on his
jury. pointed There he out attorney “go should not ed Hinkson’s wearing Purple Heart on appeared to be attorney But there.” Hinkson’s wanted lapel, and informed the court he had his there,” “go granted and the court the mo- military trying “dig been into” Swisher’s In re-open tion to cross-examination. re- history for “some time” because he did not attorney’s questions, sponse to Hinkson’s believe Swisher had served the Korean wearing Purple testified he was “a Heart.9 Hink- Purple War nor earned Heart medal” awarded to him the Swisher, Unit- attorney out that pointed son’s government, would have been between the that he born ed States served ages of 13-16 the Korean War of “following” in combat the Korean onWar 1950-53. prisoners classified missions to free of war prison camps. held in secret North Korean attorney
Hinkson’s then showed the court and counsel a letter he had received attorney placed Hinkson’s then the Tol- Tolbert, morning from a Bruce (which bert letter stated Swisher had been archives technician the National Per- with medals) awarded no before Swisher and Center, sonnel Records maintained which him asked whether he still maintained that official records for the Armed awas combat veteran who had earned a (“Tolbert letter”). let- Forces The Tolbert Purple Heart medal. Swisher reiterated ter stated that official Swisher’s did, and, Perry that he in a moment of record did not list him as entitled to drama, court-room whipped Mason decorations, personal military including a jacket pocket a “Replace- form titled Purple Heart. ment DD-214.”10 “Replace- prosecutor then noted that there DD-214” stamped ment form was “certi- testimony explaining was no what Swisher fied,” signed by a Capt. Woodring, W.J. lapel, prosecutor had on his and that the and dated October 1957. The form read prosecutor did not know what it was. The awarded, that Swisher had been and was pointed questioned also out that he had not *8 wear, medal, Purple entitled to the Heart military Swisher about his record Star, Navy the Silver the and Marine Rather, direct examination. Swisher was Star, Corps Navy medal with Gold and the only questioned about what he told Hink- record, Corps and Marine Commendation Medal military son about his because the theory government’s of the case was that with Combat “V.” The form also stated Indeed, details, charges 9. Hinkson's counsel had learned the on trial. For more see of glory at 1257. Swisher’s claims of martial at Swisher’s infra deposition three months earlier in the Water- case, again delivery military’s Oz with the recent of 10. A the DD-214 form is official form, transcript testimony discharge the of before Swisher’s which lists final rank and decorations, any. Jury injuries the Grand that had indicted Hinkson for if com- for injured by shrapnel subpoena was full Swisher’s record bat.11 day. that same for a copy The court to made asked be days later, January Two on the DD-214” form for “Replacement of presence the jury, outside of the gov- the review; the re- party prosecutor each brought ernment to the court’s and Hink- already a copy perhaps that he had plied — attorney’s son’s attention letter from Lt. explaining why suggested had to de- he Dowling Col. of K.G. the National Person- “go not Hink- fense counsel he there.”12 Management nel Branch Support moved on attorney son’s then for mistrial Corps, United States Marine to Ron Kee- ground the the admitted he prosecutor ley the Idaho Affairs Veterans Services “Replacement knew of DD-214” Swisher’s letter). (“Dowling” government The could previously spoken form and should have specify precisely when received the prosecutor up replied about it. The letter, except that it the received letter the government, Hinkson’s not the attorney, preceding week.13 issue brought up had the whether Swisher veteran, a decorated combat and the was Dowling letter a response was warned at- prosecutor had even Hinkson’s Keeley’s inquiry to the Marine Corps rec- there,” torney go govern- not “to so the ords department after Swisher attempted ment responsibility bore no for Swisher’s “Replacement to use the DD-214” form he testimony subject. The court the produced on the stand to obtain benefits agreed with Hink- government the Department the Idaho branch of the tried for a attorney “grandstand son’s had inquired of Veterans Affairs. Keeley However, play” that had backfired. whether Dowling “Replacement Swisher’s that, jury court decided to instruct DD-214” was legitimate. Dowling’s re- long day after “a ... made a mistake sponse purported letter stated Swisher’s allowing questioning regard with to the medal,” “Replacement DD-214” form did not exist Purple jury Heart and the should Instead, “disregard completely all of Mr. Swisher’s official file. Swisher’s accord- testimony regard letter, with to that ing Dowling “Replace- to the commendation.” ment DD-214” form in official Swisher’s clearly file read that had not been later, 19, 2005, days
Five
on January
that,
fact,
awarded
medals and
attorney
Hinkson’s
told the court the Na-
injured in
was
accident in
automobile
tional Personnel Records Center would
State,
Washington
not in combat. Fur-
provide
copy
full
certified
ther,
military record,
Dowling
only pursuant
to a
letter noted several of
but
court-issued
The court
subpoena.
issued
listed
purported
medals
on Swisher’s
file,
only
exonerating
decoration before
tor’s
constituted
evidence un
Heart,
Purple
judge
as to which the trial
Brady Maryland,
der
v.
U.S.
83 S.Ct.
testimony
ordered all such
stricken
to be
(1s963).
Motion for a New Trial
(9th Cir.2005).
214” as well that apparently as bo- First, the district court held “most” gus “Replacement DD-214” form itself now-proffered evidence in the Miller affidavit”). (“Woodring and Woodring affidavits “newly was not The Miller affidavit averred Swisher was discovered” because contained no new never awarded of the medals he only information but the substance of the claimed, injured and that he was in a evidence Hinkson attempted to intro- private motor vehicle accident in Washing- duce at trial: that Swisher did not have ton state. The Miller affidavit further record he claimed and was not evidence, 15. Hinkson makes no claim the August Based on this produced testimony perjured. it knew was wearing convicted Swisher of Illinois, Napue See v. 360 U.S. 79 S.Ct. unearned medal in violation of 18 U.S.C. (1959). 704(a) § L.Ed.2d 1217 and other related offenses. *11 Fourth, prof- the district court found the to the he testified he won. entitled honors evi- fered was both cumulative of court the evidence offered evidence thus found “merely at trial im- proffered dence and nothing substantively “new.” peaching.” The court found the evidence Second, district court concluded repeated Hinkson’s cumulative because diligent acquiring had Hinkson not been was not attorney’s assertions Swisher in the and the evidence contained Miller be, military hero he claimed to asser- Woodring pointed The court affidavits. at on tions Hinkson made trial based attorney out that Hinkson’s stated The court found the evi- age. Swisher’s investigating trial that he Swish- had been “merely impeaching” dence it did because military “quite for time” er’s record some nothing more than attack credi- Swisher’s doubtful, given because was Swisher’s bility rather regarding military his service date, had birth that Swisher served testimony than regarding his the solicita- Further, the 1950-53 Korean War. Further, tions found charged. the Court testified, noted that had as a court Swisher other opportunities Hinkson had several deposi- witness in an October 2004 party (1) question credibility, based on Swisher’s trial tion—three months before Hinkson’s youth at the of the Korean Swisher’s time charges on murder solicitation his—to (2) War, feud with ongoing Swisher’s claimed, bogus, perhaps but rec- WaterOz, (3) Hinkson Hinkson’s over That was taken deposition ord. opportunity Dowling to show the letter to attorney represented same who Hinkson re-opened Swisher in a cross-examination addition, his criminal trial. In court (an attorney of Swisher offer Hinkson’s related had testified to the declined). experience same Korean combat War appearances Fifth, court grand prof- his before federal the district found the jury investigating Hinkson’s tax solici- fered did not trial evidence indicate new crimes, “probably” acquittal, tation and the had would result be- transcripts grand delivered of Swisher’s cause the evidence would be inadmissible jury testimony to Hinkson week before on such new trial under Federal Rule of 608(b). Also, trial. The this case came on for court thus Evidence 403 or the court testimony regarding found Hinkson had sufficient had ordered all opportunity produce Purple and time uncover and the evi- Heart from the stricken disregard dence in the Miller record the contained and Woodr- and instructed it, ing Woodring affidavits before the end of trial. so affidavits the Miller practical jury’s could no have effect on Third, the court held district Hinkson’s deliberations; Pur- Swisher’s claim to the proffered evidence was not “material” to ple longer jury. Heart was no before the the issues trial because evidence timely appealed was under Federal of inadmissible Rule Hinkson his conviction 608(b) First, grounds. Evidence as extrinsic of- on Hinkson con- three impeach fered to on specific witness tends he was entitled a new trial based discovery on his instance untruthfulness. court also Miller Woodr- affidavits, holding ing its which contends reiterated earlier that the evi- conclusively established lied dence excludable under the Federal Second, about Rule Evidence 403. his record.17 appeals 17. Hinkson the district court's denial Hinkson’s contention the district court erred “newly solely of his motion for a new trial in its claimed based consideration *12 the district court erred the relative factual importance Hinkson contends of Hink- by introducing Hinkson from precluding purported “newly son’s discovered” evi- Dowling letter and Swisher’s dence. analysis The court’s did not rest Third, during trial. file into evidence on “the values that legal princi- animate en- Hinkson contends ples,” meaning such as the of diligence due prosecutorial misconduct gaged or the conceptual basis for granting new mentioning service in trials, was, but respects, instead all “es- it closing argument its when had reason sentially Accordingly, factual.” for stan- to doubt Swisher’s truthfulness. dard of purposes, review we treat the dis- application
trict court’s of fact to law here exactly the way same as we treat factual Analysis findings.
Motion for a New Trial
The Supreme
explained
Court
the mean
ing of the abuse of discretion standard in
We review district court’s order
Cooter & Gell v. Hartmarx Corp., 496 U.S.
denying a motion for a new trial made on
384,
110 S.Ct.
110
ground
newly
of
discovered
L.Ed.2d 359
(1990),
stated,
for abuse of discrеtion.
v.
where the court
“A
United States
district
(9th
Reyes-Alvarado,
necessarily
963 F.2d
court would
abuse its discre
Cir.1992).
We invoke
standard of re
tion if it
ruling
based its
on an erroneous
before,
view as we have hundreds of times
view of the law
clearly
or a
erroneous
step
but this case forces us to
back and
assessment of the evidence.” Id. at
precisely
consider
what “abuse of discre
words,
In analysis this the district court’s ings, clearly abuse-of-discretion and of Hinkson’s motion trial for new involved erroneous standards indistinguishable: are an application of fact to law—whether the A appeals justified court of would be trial, they facts as occurred at combined concluding that a court district had abused with Hinkson’s purported “newly discover- its evidence, making discretion a factual finding ed” warranted a new trial under only if controlling finding clearly law. were applications We review erroneous.” 400-01, 110 ways: fact to law in one of two if the Id. S.Ct.
district application court’s of fact to law
“requires inquiry essentially an When considering fac- whether a dis tual,” we if trict facts, review as it were a factual court erred in applying law to finding; if application the district court’s we look to the substance of the issue on of fact requires to law reference to question “the review to determine if the is fac legal principles,” values that animate legal. we tual or “If application of the rule of legal review it as if it finding. were See law to the requires inquiry facts that is McConney, factual,’ United States v. 728 F.2d ‘essentially is founded —one (9th Cir.1984). Here, entirety application ‘on the fact-finding tribu the district analysis court’s rested on the experience nal’s with the mainsprings of specific conduct,’ facts they as occurred at trial and human judicial concerns of —the Woodring
discovered” evidence of
the Miller and
affidavits.
evidence,’
‘whether,
court,
on the entire
must ask
administration
favor the district
will
firm convic-
the definite and
it is ‘left with
court’s determination
and the district
”).
has been committed’
tion that a mistake
fact renewa-
as one of
classified
should be
clearly erroneous standard.”
ble under
Co.,
Gypsum
howev-
year
after U.S.
(quoting
F.2d at 1202
McConney, 728
held in United
er,
Supreme Court
*13
289,
Duberstein,
278,
363 U.S.
v.
Comm’r
338, 342,
Co.,
U.S.
v. Yellow Cab
338
States
(inter-
(1960)
1190,
meаsure of deference to the trial court’s 573, 1504, id. at 105 S.Ct. because the trial factual determinations. “permissible” court’s findings were not “il logical or implausible” principle “support
This
and had
is illustrated Anderson
N.C.,
may
inferences that
City
v.
be drawn
City,
Bessemer
from
470 U.S.
of
564,
facts in
1504,
(1985).
577,
the record.”
at
105 S.Ct.
Id.
105
tion committee had not been biased Our Abuse of Discretion Test
against the candidate because she was a Thus, woman. appellate court held the adopt We a two-part test to determine district court’s factual findings were clear- objectively whether a district court has erroneous, ly and reversed. abused its discretion in denying motion for a new trial.
Considering
analyses
of both the
court,
trial court
appellate
and the
Supreme
Court has held that a dis-
“[ejach
Supreme Court concluded that
has
trict court abuses its discretion when it
support in
may
inferences that
Gell,
be drawn makes an error of law. Cooter &
496
405,
(“A
the facts in the record” and neither
at
U.S.
110
2447
S.Ct.
district
“illogical
implausible.”
or
Id. at
court
necessarily
would
abuse its discre-
1263
in the
good sense
context of a motion for
applied
identified and
the correct legal rule
Heath,
trial.
United States v.
Second,
new
See
requested.
to the relief
we look to
(9th Cir.1958) (“To
prevent
F.2d
whether
the trial court’s resolution of the
possible prejudice
beyond
gen-
on trial
motion resulted from a factual finding that
atmosphere
eral
of impartiality which tra-
illogical,
implausible,., or without sup-
courtroom,
ditionally pervades
trial
port in
that may
inferеnces
be drawn from
judges have wide discretion to methods of
the facts in
words,
the record.
In other
Among
control.
these are ... grant of
our
abuse
discretion test
means
we
trial.”);
new
Freund v. Nycomed Arners-
do not automatically affirm, a district
(9th Cir.2003)
ham,
347 F.3d
court’s factual finding if we decide it is
(“The
court
district
is most familiar with
“permissible,” and we do not automatically
trial,
the context of the
enjoys
broad
reverse a district court’s factual
if
finding
regard
discretion with
to a new trial mo- we decide a “mistake has been committed.”
tion.”);
see also Allied Chem.
v.
Corp.
Rather,
case,
in either
we will affirm a
Inc.,
Daiflon,
33, 36,
449 U.S.
101 S.Ct.
district
finding22
court’s factual
unless that
(1980) (“The
188, 66
authority
L.Ed.2d 193
finding
illogical, implausible,
or without
grant
a new trial
...
is confided almost
support
may
inferences that
be drawn
entirely to the exercise of discretion on the
from the record.23
court.”).
trial
part of the
Application of Our Abuse
Accordingly, we hold that when
of Discretion Test
we
for
review
abuse of discretion a district
trial,
of a
Applying
bar,
court’s denial
motion for a new
this test to the case at
we
we first
look to whether
the trial court
conclude the district court did not abuse
*16
States,
696,
(7th
Savic v. United
today.
918 F.2d
700
A district court’s decision to abstain
1990) ("A finding
clearly
Cir.
erroneous
exercising jurisdiction
from
Younger
under
v.
when, although
may
Harris,
there
37,
746,
be some evidence
401 U.S.
91 S.Ct.
27 L.Ed.2d
it,
support
reviewing
to
'the
court on the
(1971),
669
is reviewed de novo in this circuit.
entire evidence is left with the definite and
Drinking Emporium
World Famous
Inc. v.
firm conviction that a mistake has been com
1079,
(9th
1987).
Tempe, 820 F.2d
1081
Cir.
may
mitted.’ We
have such a conviction if Moreover,
arising
in abstention cases
under
judge's interpretation
the trial
of the facts is
Co.,
Railroad
v.
Commission
Pullman
312
implausible, illogical, internally inconsistent
496,
643,
(1941),
U.S.
61 S.Ct.
plausible
light
in
of the record as a
exercising jurisdiction,
because
state statute
Corp.,
Conte v. Gen. Housewares
215 F.3d
issue,
potentially
could
decide the
a state
(6th Cir.2000) ("[W]e
634
cannot conclude
yet interpreted
court had not
that state stat
district court’s decision was so unrea
ute,
application
and the
of that state statute
sonable, illogical,
arbitrary
or
as to constitute
could
question
avoid the federal constitutional
discretion.”).
an abuse of
factual,
legal,
in the case. These were all
not
issues.
"essentially
application
22. Or
factual”
of fact
McConney,
to law. See
In the rare case in which a
F.2d at 1202.
district court's
findings
apply
factual
do affect its decision to
doctrine,
Appellate
findings
review of a
abstention
those factual
district court's deci-
exercising jurisdiction
sion to abstain from
would be reviewed for abuse of discretion as
by
opinion
clarify
today.
over
case is not altered
our
we
example,
that standard
For
Second,
Harrington test is
because the
motion
denying
in
Hinkson’s
its discretion
factual,
“newly
essentially
requiring
discover-
consider-
based on
for a new trial
(which
the Miller affidavit
application
еvidence of
ations that are “founded on the
ed”
any of
never awarded
averred Swisher was
fact-finding
experience
tribunal’s
of
claimed,
injured
that he was
conduct,”
the medals
human
mainsprings
with
in
motor vehicle accident
private
in a
requiring
than
“consideration of ab-
rather
state,
purported
and that the
Washington
McConney, 728
legal principles,”
stract
pro-
DD-214” form
“Replacement
we look to whether the dis-
F.2d
and the
forged)
the stand was
duced on
fact,
appli-
findings
court’s
and its
trict
(which averred Col.
affidavit
Woodring
fact
the Har-
findings
cation of
those
the letter
Swish-
Woodring
signed
never
factors,
rington
illogical, implausible,
were
Keeley
provided
that Swisher
er’s file
support
may
without
inferences
benefits, and that
seeking
when
veterans
drawn from facts
the record.
be
pur-
Woodring
signed
never
Col.
form,
DD-214”
ported
“Replacement
step
Under the initial
of the Har
produced on the witness
which Swisher
test, the district court found the
rington
stand).
Woodring
Miller and
affidavits did not con
First,
look to whether the district
we
“newly
tain
discovered” evidence because
standard.
legal
court identified the correct
simply
of the affidavits was
the substance
Here,
accurately identi-
the district court
“newly discovered.” The district court
five-part legal
the correct
test outlined
fied
that the information contained in the
found
410 F.3d
Harrington,
States v.
United
affidavits,
Woodring
while new
Miller and
(9th
Cir.2005),
analyze
Hink-
written,
any
ly
provide
did not
new infor
brought
trial
on the
son’s motion for a new
already
mation that was not
considered
newly
evidence.24
basis of
discovered
rejected
evidentiary
admission
merely
sup
the court:
the affidavits
Harrington
requires
test
ported
previously proffered
seeking
prove
trial
each of
party
new
purported “Replacement
that Swisher’s
(1)
following:
newly
the evidence is
phoney
DD-214” form
and that he had
(2)
discovered;
diligent
the defendant was
The district
not earned
medals.
(3)
evidence;
seeking
the evidence is
*17
proffered
court’s determination the
affida
(4)
trial;
material
to the issues at
“newly
not
discovered”
(a)
(b)
vit evidence was
mere
evidence is not
cumulative or
(5)
logical
plausible,
was
based on the
ly impeaching; and
indi
Thus,
in
con
facts
the record.
court’s
probably
cates the defendant would
be ac
clearly
in a
trial.
clusion did not constitute a
errone-
quitted
new
Id.
Pullman, suppose
porter
other than the abuse of
sues the Texas
under
standard
today.
court,
standard we announce
If
discretion
and in
Railroad Commission in district
attempted a de
we
novo review of that factual
complaint,
response to the
the Com-
its first
finding,
straying
we
be
far from our
would
grounds the
mission moves to dismiss on
Rather,
appellate
role as an
court.
sensi-
actually
porter
plaintiff
not
a certified
approach
uphold the trial court’s
ble
is to
standing
porter
has no
to sue. The
submits
fact,
finding
finding
provided is not
document which the Commission
certification
illogical, implausible,
any support
or without
ruling
bogus.
on
claims is
The district court's
in the record.
document,
authenticity
crucial to its
standing,
would be reviewed for
decision
States v.
24. The district court cited to United
(9th Cir.2003),
It would make no sense Waggoner,
abuse of discretion.
339 F.3d
Harrington.
finding
did
factual
which used the same test as
to review the district court's
trial to
out
finding
proof
factual
nor
abuse of discre-
seek
contained in the
ous
affidavits,
Woodring
tion.
Miller and
which was
precisely the evidence the district court
Second, the district court found
might help
said
understand Swisher’s
diligent
counsel was not
seek
Hinkson’s
military
true
record. Based on these
purported newly
discovered evi
ing
facts, the district
that Hink-
finding
court’s
dence,
required by
Harring
the second
as
attorney
son’s
did not exercise due dili-
because,
re-opened
before his
step,
ton
gence
seeking authoritative evidence of
at trial on
cross-examination of Swisher
military past
logical,
Swisher’s true
14, 2005,
January
counsel told the court he
plausible, and based on inferences drawn
investigating
had been
Swisher’s
Thus,
from the facts in the record.
it was
fact,
In
“quite
record for
some time.”
clearly
finding
erroneous
nor an
trial,
before
the same coun
three months
abuse of discretion.26
in a
represented Hinkson
civil
sel had
action in which Hinkson and Swisher were
Third, the district court found the
adversaries,
deposed
bitter
and had
Swish
Woodring and Miller affidavits were not
deposition,
er. At his
Swisher claimed bat
event,
material to the case in
as re
injuries
grenade explosions
tlefield
quired by
Harrington
the next
step, be
1937, putting
him
he was born
they
cause
related evidence that would be
age
during
13-16
the 1950-53 Korean
inadmissible under Federal Rule of Evi
(The government also disclosed
War.25
dence 403. The district court found the
grand jury testimony
Swisher’s
a week
probative value of the evidence described
trial,
before
in which Swisher made the
Woodring
in the Miller and
claims.)
affidavits was
Yet,
same
counsel still did not
substantially outweighed by
danger
Woodring
the Miller and
affidavits
procure
issues,
(much
confusion of the
misleading the
Woodring’s presence
less Miller and
witnesses)
jury,
delay,
undue
and waste of time. Af
February
as
until
24 and
all,
ter
point
the material
was whether
than a
more
month after the first cross-
Swisher told Hinkson he had
men in
nearly
killed
examination of Swisher and
four
battle,
actually
not whether
suspicions
after
first should
he had
done
months
have
so;
relevancy
was to whether
deposition
been raised
testi
money
targets
Hink
offered
to kill three
mony
the civil action. Nor did
request
during
son’s counsel
a continuance
of Hinkson’s ire.27 The district court con-
age
being put
in the
The minimum
for enlistment
fense counsel waited months after
Armed
the Korean War was
Forces
on notice Swisher's
service claims
parental
U.S.C.
or 17 with
consent. See 10
bogus
procuring
could be
before
the Woodr-
(1952).
§§
ing and Miller affidavits and failed to even
*18
request a continuance from the district court
by stating
the
The dissent confuses
issue
correctly
in the interim. The district court
it
the
that was not dili-
that was
diligent.
found that defense counsel was not
gent
investigating
in
the record of its star
witness at trial. The issue is not what
the
27. This is a similar issue to that which arises
government should or should not have done
police
in cases where undercover
officers sell
determining
in
to assist defense counsel
powdered sugar
unsuspect-
cocaine-labeled
lying
whether Swisher was
about his
ing purchasers,
charged
who are then
with
(a
record
fact
is not material
to the
substance;
attempted purchase
trial).
of a controlled
Harrington
underlying issue at
asks
only
question
pur-
the
relevant
is whether the
diligently
pur-
act
in
this: did
counsel
defense
cocaine,
thought
buying
chaser
he was
not
suing
proffer at a
the evidence it wishes to
Harrington,
pur-
new trial?
Exclusion — take explain to authenticate and the mili Hinkson also contends the district court (which tary facially file the court found rights present his constitutional violated and the indecipherable) confusing risk defense, against to confront witnesses tangential with the evidence. The him, and to a fair trial because the district substantially court concluded the risk out incorrectly court refused to admit into evi- reward, conclusion, weighed the and this (which Dowling dence the letter stated which nor illogical implausible “Replacement DD-214” form record, file) based did not exceed the was not Swisher’s official itself, bounds of the district court’s discretion in and Swisher’s official file which court found to unau- applying the district be Rule 403. speculation acknowledg- length, credibility It is to conclude Swisher's could now be im- routine, heroic, ment of Swisher's rather than peached additionally by proof of his convic- military history cause the would wearing tion for an unearned medal. But keep him off the stand on a retrial. Prose- had not occurred at the conviction time proving are cutors accustomed to their cases play of Hinkson’s new trial motion and could individuals, through unsavory timely and a part judge’s the trial no estimation of the pre-trial questioning motion would limit probable judge result of a new trial. The trial military history about Swisher's other than as did not err. told to Hinkson. As the dissent states
1268 (2) test, Closing Argument analyzed Harrington and ton
Error in illogical, in a manner that was not factors the district Hinkson contends in support or without infer- implausible, trial by failing to order a new cоurt erred may the facts in ences that be drawn from government’s closing sponte after the sua also hold the district court the record. We prosecutor, knowing argument because by Dowling letter excluding did not err a vet likely was not combat that Swisher military file from evidentia- and Swisher’s eran, told jury to the that Swisher argued Finally, under Rule 403. we ry admission veteran, and Hinkson he was a combat plainly court did not err hold the district why that is Hinkson solicited Swisher sponte a trial sua by failing to order new Cook, Hines, Lodge. Review murder government’s closing argument. after plain for error because Hinkson failed is Olano, v. object below. United States AFFIRMED. 725, 731-32, 113 S.Ct.
U.S. (1) (1993). FLETCHER, A is plain L.Ed.2d 508 error A. WILLIAM Circuit (3) (2) that affects plain, joined by that Judge, dissenting, error (4) “seriously PREGERSON, WARDLAW, PAEZ, rights,” and “substantial fairness, integrity, public Judges: affects the Circuit judicial proceedings.” Unit reputation of I dissent. Hammons, v. 558 F.3d ed States Following a two-week trial federal (9th Cir.2009). Boise, Idaho, jury court in a con- district Hinkson’s contention lacks merit. The soliciting victed David Roland Hinkson government’s only references to Swisher’s three officials. The murder of federal military closing argu- background its government’s supporting star witness point ment out that Swisher had were conviction was Elven Joe Swisher. Wear- told Hinkson he was a combat veteran— lapel ing Purple pin Heart on witness necessarily one. not Swisher was stand, that he had told Swisher testified if in the Even never served Hinkson that he was a Korean War com- all, military enough jury it that the Hinkson, impressed veteran and that bat gov- found Hinkson believed he did. The by military exploits, Swisher’s solicited argue closing ernment did him to kill the officials. Swisher should be deemed more credible government open- maintained in its purported on account of or believable his ing statement to the that Swisher was heroism, military or that he was more veteran, a Korean War combat likely to because of be murderer-for-hire throughout maintained the trial that Hink- military Accordingly, his record. dis- understanding son’s plainly failing trict court did not err exploits showed he was serious sponte order new trial sua after the solicitations Swisher. government’s closing argument. now concedes that neither served any personal in combat nor earned mili-
Conclusion commendations, tary and that Swisher above, For the reasons discussed we forged military presented document denying affirm court’s order the district repeatedly court and lied under oath at Hinkson’s motion for a new trial based on trial about his record. “newly the Miller discovered” evidence of arguments ap- three Woodring affidavits because the dis- Hinkson makes (1) First, Harring- peal. argues the district applied trict court the correct *21 documentary evi- The wrongly three-judge panel court excluded of which I was a showing presented dence a affirmed that sepa- member conviction in a forged document and lied on the stand. disposition. rate memorandum Second, that the argues prosecutor he en- The superseding indictment in the case in he gaged misconduct when invoked now before us contained eleven counts. closing service in his Hinkson, charged Counts 1-6 in viola- having argument despite substantial rea- 373, § tion of 18 sought persuade U.S.C. suspect son to that Swisher had lied about acquaintance Harding named James Third, argues that service. the Cook, Hines, Lodge, murder and in first deny- district court abused its discretion in (Counts 1-3) January 2003 again and ing upon his motion for new trial based (Counts 4-6). March 2003 Counts 7-9 discovery his after trial of new evidence charged that in January December conclusively establishing that Swisher had 2003, Hinkson, again 373, § in violation of lied on the stand. sought persuade Swisher to murder I would reverse the district court based Cook, Hines, Lodge. Finally, Counts arguments. on Hinkson’s first and third I Hinkson, 10 and 11 charged that in viola- would hold that the district court abused 115, § tion of personally 18 U.S.C. threat- its discretion when it excluded documenta- ened to kill the children of Cook and ry evidence that would have contradicted Hines. Swisher’s claim on the stand that he was a Hinkson was only convicted on decorated combat veteran. I would also counts, Swisher-related Counts 7-9. The hold that the district court abused its dis- jury acquitted 1-3, 10, Hinkson on Counts cretion when denied Hinkson’s motion and deadlocked on Counts 4-6. I
for a trial. would not reach Hink- new appeal only This involves the Swisher-re- argument. son’s second lated counts. I. Background points trial, At several during Hinkson’s majority opinion recites some of the prosecutor emphasized Swisher’s mili- background facts relevant to ap- Hinkson’s tary background, and Hinkson’s under- view, however, peal. my In majority’s standing of that background, an effort begin by
recitation is too truncated. to show the seriousness of Hinkson’s solici- providing background necessary to un- tations. In opening statement to the what during derstand went on Hinkson’s 11, 2005, January prosecutor trial, why and to understand I believe the stated affirmatively that' Swisher “was court district abused its discretion. Marine, a Combat Veteran from Korea In an September during indictment filed on the Korean conflict. He was not grand jury violent, a federal in Idaho adverse to this kind of dangerous charged soliciting activity; Hinkson with the mur- part but he wanted no of murder- Attorney However, ders of Nancy ing Assistant U.S. federal officials.” di- Cook, Hines, Special Agent days IRS Steven rect examination of Swisher three Judge January and U.S. District Court Edward J. later on prosecutor did not Lodge. was, All fact, three officials had been in- ask Swisher whether he investigation prosecution volved Korean War combat veteran. Somewhat on tax currency oddly, given Hinkson structur- his affirmative statement earlier, ing charges. appealed jury only days his convic- prose- three tion on charges companion only those case. cutor asked Swisher what he had told *22 family” regarding in made Mr. Albers and his
Hinkson about military experience his done, basically, that and “said he wanted Korea. family with Ms. Cook and her and Mr. wear- came to the witness stand Swisher family.” Hines and his Swisher testified Purple a Heart on his ing replica a him, you’re that Hinkson told “I know given is an award Purple A Heart lapel. mean, you people to it. I have killed used military of the United States to members military].” in the serving Swisher [while tes- in Swisher who are wounded combat. replied that he that he would re- testified acquainted he first with tified that became to the authorities if Hinkson port Hinkson Swisher, According in 2000. Hinkson talking way.” that “continue[d] for consulting done some work he had WaterOz, company, and the two Hinkson’s that after Hinkson was Swisher testified developed friendship. had a Swisher men 2002, in charges arrested on tax November in that he had served the Marine testified further with Hink- he had conversations response prosecutor’s In to the Corps. Swisher, According son. Hinkson “was that questions, he testified further he dis- extremely people hostile to all of the who with exploits cussed his Hinkson involved in thаt arrest.” In Jan- been occasions and told Hinkson that on several 2003, uary through Hinkson “went in in a he had been combat Korea as him, that people names of the had offended Swisher, According to Hinkson Marine. by a name of judge and added federal any- whether he had ever killed had asked that Lodge to list.” Swisher testified one, respond- to which Swisher said he had him Hinkson then offered least “[a]t ed, many.” “Too $10,000 a head” to “them all have treated way regarding the initial offer that on various occa- Swisher testified family Albers and his had been handled”— Hink- early in 2001 and he and sions is, and killed.” Swisher “[t]ortured legal problems, son discussed Hinkson’s in spoke “pleading testified that Hinkson brought against a civil suit particularly just fashion” about how “he had to have employee. Hinkson a former WaterOz replied this done.” Swisher that he “never shortly April testified that after Swisher again.” to hear that wanted After the expressed Hinkson “considerable” January exchange, the two men had a anger employee’s lawyer, Den- toward falling-out, eventually resulting serious in Albers, spoke graphic in detail nis nasty a lawsuit and a feud. testi- family wanting about to see Albers and his April fied sometime after 2003 he “tortured and killed.” Swisher testified to a local “$10,000 reported Hinkson’s solicitations him that Hinkson offered head prosecutor. Idaho At time of his testimo- it,” [Hinkson] to do but Swisher “told January ny at Hinkson’s trial out of his mind and he needed to enemy. Swisher was bitter knock that kind of BS off.” examination, July August testified that in On cross defense counsel mili- began initially inquire to focus on his did not into Swisher’s Instead, tary background. sought problems According with federal officials. counsel Swisher, by identifying incon- Hinkson stated that Cook and to discredit Swisher testimony by empha- him a harassing great Hines “had been sistencies deal,” judicial system,” sizing ongoing “cost feud between Swisher “abused However, having indi- money,” him a lot of and “didn’t deserve to and Hinkson. after questions no further for live.” Swisher testified that Hinkson cated he had Swisher, approach him if he the offer he counsel asked to asked “remembered sidebar, court, Armistice, attempt bench. At the he told the after the in an to free time, quite some defense prison camps [the has] “For POWs still secret North trying dig into [Swisher’s] been Korea. And that still information remains that, history.” explained classified, “[b]e- Counsel I’mso not sure how much more age cause of his and because of the time of say I can on that.” war, don’t believe he was we prosecutor’s objection, Over the defense got also don’t believe that he war. We *23 just-re- counsel then showed Swisher the in Purple Heart or was combat.” Counsel ceived letter from the National Personnel just then told the court that he had been Records Center. The letter was dated the “handed a letter from the National Person- day of the cross examination and had been ... indicating nel Records Center the faxed to defense counsel’s office at 2:34 fail records to show ever [Swisher] p.m. that afternoon. signed The letter was any per- was recommended for or awarded by Archives Technician Bruce R. Tolbert. decorations.” Defense counsel not- sonal] (hereinafter The letter the “Tolbert let- ed for the record that Swisher was “wear- ter”) stated: stand, ing Purple a Heart on the witness in Corps U.S. Marine [A] record was lo- presence jury.” of the cated on file at this Center for Mr. sidebar, prosecutor at the re- Still pro- Swisher based on the information sponded that he never asked Swisher your request. vided in The USMC rec- “winning about medals or combat” and had ord shows Mr. Swisher served on active merely “a asked about conversation that duty 4, in August the USMC from Mr. had with Hinkson and what [Swisher] duty to his release from active on Au- him pros- Mr. Hinkson asked about.” The gust subsequently 1957. He was dis- days ecutor not mention that did three charged from the USMC reserves on earlier, opening in his statement to the August addition, In Mr. Swish- jury, affirmatively he had stated that er’s Marine Corps record has been care- Swisher was a combat veteran from the fully by Military examined Awards prosecutor Korean War. The also stated at Branch of the office of the Commandant sidebar, record, “For he has a Corps, of the Marine and that office has know, you little —I don’t something know— stated that his record fails to show that If lapel. somebody stuck his knows for, he was ever recommended or award- is, what that fine. No one has said what it any personal ed decorations. is.” Defense counsel asked Swisher whether permitted The court the defense to re- “might letter refresh recollection [his] open its cross examination of Swisher as to whether or not the Government is- lapel pin order to ask about Swisher’s Purple sued [him] Heart.” about his service the Korean War. letter, After Swisher reviewed the In response questions, to defense counsel’s following exchange place: took wearing Swisher testified he was “a Now, sir, Q [by defense when counsel]: Purple Heart Medal” that had been award- Heart, you are a Purple awarded are by government. ed to him the U.S. He you given reflecting a document explained that then he had served com- your Purple entitlement to that Heart? following bat in the Korean but “[n]ot War [byA Commonly. Swisher]: said, “I part the Korean War.” He was of a Q: you given Were such a document? special expedition, Corps Expedi- Marine tionary engaged that was A: Unit combat Yes. pulled pocket from his that document?
Q: Where is paper, photo- sheet of was a single which my In pocket. A: to be a copy purporting document it, May please? I see Q: Department Defense Form described DD-214, replacement if the A: I have by testimony “replace- as a me to— permit court will DD-214.” In box near the bot- ment it, Let take a look at THE me COURT: document, typewritten: tom of the first. is- replaces previously “This document It is certified. We THE WITNESS: transfer sued document 8-3-57. Headquarters clear to go had to Changes additions have been verified get and all over to it. Corps Marine DD- original of this Command. classifications, my rec- Because headquarters 214 has been forwarded to ord, along with the other survivors of (10-15-57) ... to wear Ma- MC Entitled *24 Mission, pretty had been much Corps Expeditionary Medal.” Near rine purged. document, of the in box was the middle STAR, NAVY typewritten: “SILVER Longstreet, THE COURT: Ms. would MARINE AND CORPS MEDAL counsel, W/ you please? tender that to both STAR, HEART, GOLD PURPLE NAVY copy, I have a [THE PROSECUTOR]: AND MARINE CORPS COMMENDA- Your Honor. MEDAL BRONZE ‘V’.”In box TION W/ hang THE Just on to it. COURT: below, immediately typewritten: COUNSEL]: What was [DEFENSE gunshot Septem- “Multiple shrapnel and — that? document bore the ber Korea.” The I copy. have a [THE PROSECUTOR]: WOODRING, Jr., Capt., signature J. “W. May ap- we [DEFENSE COUNSEL]: USMC.” proach, Your Honor? page, photocopy the same below the On sidebar, hearing At out of the of the DD-214, purported Form was writ- jury, exchange continued: request ten: “Filed and recorded at the of At p.m. I Joe 2:40 o’clock this going Swisher[.] am
[DEFENSE COUNSEL]: ROSE E. day February 2nd of apparently, govern- 2004[.] counsel for the to— [,] Ex-Officio Auditor and Re- of the GEHRING validity ment knew about County, By just corder Idaho Dana Purple Idaho[.] Heart. He said he has a (Un- $0[,] Stroopf,] Deputy!.] pg.” Fee copy of this. in- derlining handwriting; indicates italics you THE Have seen doc- COURT: this stamp; dicates brackets indicate material ument? me.) added He showed me [THE PROSECUTOR]: morning, this document this about 9:00 jury, The court excused the and the o’clock. conversation continued. The court asked prosecutor to confirm that he had seen you copy THE COURT: Do have at 9:00 a.m. morning the document it? prosecutor replied: The copy I have a [THE PROSECUTOR]: of it. showed it to me at 9:00 a.m. [Swisher] I morning this because had asked —he Why didn’t [DEFENSE COUNSEL]: Korea, serving in Korea. had mentioned you tell us? said, I? I the Armistice '52?” Why should “Wasn’t [THE PROSECUTOR]: still, finds as a matter of fact said, you The court “But there was He combat; copy is a know, if[Swisher’s document] it continues to this record —and at genuine to be true. this happen I to know day,” which any way I point, don’t have to determine day to this Korea. There is combat that; appears genuine, to be but requested a mistrial counsel Defense in appearance. least to inform failure prosecutor’s on the based given consistently the defense It indicates with how the appeared testified; did, government a document that he witness has the National fact, the letter multiple shrapnel gun- contradict receive prosecu- Records in September Personnel Center. shot wounds 1955 in Ko- rea; that defense counsel “should responded tor and that he was awarded commen- said, go medals, I ‘Don’t have listened to me when including Purple dations and ” He elaborated: there.’ Heart. anything about his go I didn’t into receipt court that “until the stated anything or else combat or his medals letter,” “had the[Tolbert] go chose to down this my direct. He that[Swisher’s no reason to believe docu- objected I to it. path, even when Brady was diseloseable under ment] little pin draw attention to the didn’t Giglio impeaching.” it was not because people Lots of lapel. in Mr. Swisher’s *25 jury to “instruct The court offered They anything. wear them. could be of the portion strike cross examina- it. He wanted to make issue of tion of Mr. Swisher relates to the complete- Heart. Just tell them to Purple whipped out his document Counsel ly disregard testimony all about the Purple I ago. that he received minutes believe agreed. Heart.” Defense counsel When enough have time to probably didn’t returned, the court said: to use that digest read it and and tried gentlemen, long it’s Ladies and been impeach the witness. That was im- day; and I now realize that I made a proper. in allowing questioning mistake with Heart regard Purple to the Medal. in front of grandstand play It was a going you I am to instruct to disre- So jury that wasn’t so didn’t—-that completely all of Mr. tes- gard Swisher’s grand, got caught on it. That’s and he timony regard with to that com- where we are. mendation. nothing There is the Government did certainly You are entitled to consider ingo that caused him to the area he did. testimony. all of the rest of his Just into area. going We tried to avoid this I everything from where asked [defense know, you barely I I don’t think — re-open, please strike that counsel] It myself. time to look at this refers minds; your you are not to replaces other —that this somе docu- in it as evidence the case. consider know previously ment issued. don’t is, just that document and it led what contretemps over the Tolbert letter proper that this is not a me to conclude “replacement place DD-214” took and the go area to into. afternoon, January 14. The Friday on 17, mistrial, January following Monday, was a fed- The court denied the motion for a trial resumed on holiday. eral When the stating: rested, Tuesday, the and the Counsel further stated that he believed prosecution in Swisher had not been wounded combat defense called its first witnesses. but, fact, “injured in in had been while day, Wednesday, January The next Bremerton, in Service a car accident in court, told the outside the defense counsel Washington.” He stated the National jury, that he had obtained presence of the Personnel Records would Center send indicating information the document court, full record to the pocket had taken from his while only response subpoena signed but in to a so-called “re- on the witness stand —the by signed subpoe- the court. The court placement DD-214”—was fraudulent. De- day. na late photocopy had obtained a fense counsel later, days Friday morning, Two Jan- DD-214, Form also recorded different uary again presence outside the of the County the Idaho Auditor jury, prosecutor provided photocopy However, and Recorder’s office. this of a letter to the court “for in-camera Form DD-214 had been recorded Feb- review.” The letter was from Lieutenant ruary February 2001 rather than Dowling, Colonel K.G. Assistant Head of earlier-recorded Form DD-214 Military Awards Branch of Marine form, identical to the later-recorded with Corps, Keeley to Ben of the Idaho Division the notable difference that none of the (the of Veterans Services. The letter medals, commendations, or wounds was letter”) “Dowling was dated December mentioned the earlier-recorded form. appeared 2004. What to be a “received” was written in box 26 where the “N/A” stamp January was dated 2005. At the Star, Heart, Purple Silver and other letter, top Dowling pos- now the specified were in the awards later-record- government, session of the was a fax line ed form. was also written boxes “N/A” indicating that it had been faxed from the where, 27 and the later-recorded *26 “ID. in STATE VETERANS SVS” Lewi- form, “Multiple shrapnel gunshot— and ston, Idaho, Keeley’s where office was lo- 1955, September Korea” and “Entitled to cated, 13, Thursday, January on 2005. wear Corps Expeditionary Marine Medal” January day 13 was the before Swisher were written. testify against took the stand to Hinkson. Defense counsel told the court: prosecution given has an- various people [T]he indications from the we swers about when it Dowling received the have talked to the National [at Person- letter or learned of its existence. On the nel they Records is that morning January gave Center] stand when he the by January court, the letter of 14th prosecutor [Tolbert] letter to the district the they and that provide will us with a stated that he Agent Long got “believe[d] copy DD-214 day certified of his that would by going [the the before letter] the document]; support Later, [Swisher’s that Veterans’ Administration.” in its forgery; is a opposition [Swisher’s document] to Hinkson’s motion for a new trial, given any prosecution he was never of the the stated its brief awards or benеfits as indicated on that the letter was “obtained federal document]; that, further, investigators days [Swisher’s a few earlier any change if had been made in the Boise In Veteran’s Affairs office.” its document, discharge court, prosecution would have been brief to this stated done on a form “government investigators [rather DD-215 than a obtained form January DD-214].... on or about 20.” Fi- [the letter] headquarters, Navy Depart- this and the queries during response to the nally, ment Board of Decorations Medals three-judge pan- argument before oral any failed to reveal information that attorney post- el, sent government’s would indicate that he was ever recom- had “been stating that he letter argument for, any personal or awarded on the mended investigating agents informed decoration. and learned of team first saw prosecution January 18 or Dowling letter on Additionally, Navy and Marine Boise, Department office of the Idaho Medal, Corps which is Commendation Affairs.” There is no indica- of Veteran’s you DD 214 that listed in block 26 of the that defense counsel tion in the record did not exist at the time of submitted Dowling of the any idea of the existence Mr. transfer to the Marine provided it to until the letter March Corps Reserve 1957. On January the court 1950, a Metal Pendant was authorized for issue in connection with a Letter of Keeley Dowling letter indicated and commendation Commendation rib- the Personnel Man- earlier had contacted 21, 1960, September bon. On the Secre- Corps of Marine Branch agement Support tary Navy changed the name of attempted after Swisher Headquarters, Navy to the the award Commendation DD-214” to obtain “replacement use his 19, 1994, August Medal. On the Secre- Idaho Division benefits from the veterans’ Navy tary of the renamed the medal as Dowling wrote back of Veterans Services. Navy Corps and Marine Commenda- Keeley: impossible tion Medal. It is reviewed the thoroughly have We approving signed officer could have of Release or of the Certificate copy indicating official document Mr. (DD Duty Form Discharge from Active de- personal Swisher’s entitlement to 214) you letter which supporting pres- coration which did not exist its Mr. with on behalf of submitted ent form until 1994. you pro- your The documents request. rec- Further review of Mr. Swisher’s offi- exist in Mr. Swisher’s vided do not that he is not entitled to ords reveals 214 in DD Form cial file. The official awards, including the Ma- any service signed record of the same date was Medal, for his Corps Expeditionary rine by Mr. and does not contain Mr. Corps. in the U.S. Marine service *27 in box and con- awards information military failed official records Swisher’s in no information box tains “wounds” that any to information indicate provided DD 214 is copyA of his official period in Korea the when served this information as the enclosure. Given were authorized. His rec- awards to that the docu- we have reason believe ords show that he was stationed authentic. you ments submitted are not Yokosuka, Camp Fuji Japan you DD 214 submit- Specifically, the 6,1956. 4,1955 May March to indicates ted on behalf of Mr. Swisher military information in his to the Silver There is no that Mr. Swisher is entitled Medal, record or his medical record substan- Navy Corps and Marine Star (Gold Purple to a Heart in tiate his entitlement lieu the Second Medal Star that Award), Heart, His medical records show Navy and medal. Purple 10,1957, in February he was involved on Medal Corps Marine Commendation However, near Port private vehicle accident our review with Combat “V.” Townsend, records, Washington. military those of of his official Friday, January Later the court on military file—“a received Swisher’s official you surgery, When recover from both half-inch-thick stack of materials” —from Major Morgan encourage you and I the Records Center in National Personnel program college enter a R.O.T.C. at the mil- response subpoena. to its The official your choice. Glad we were able to itary copy Dowling file of the contained help. government undoubtedly letter. The an- above, Dowling As indicated the letter ticipated that on the file would arrive stated that “we have reason to believe” day, it about and that when arrived that both of these documents “are not Dowling contain
would letter authentic.” presented to the court presence jury, Outside the of the that morning. presence of the Dowl- surprisingly court stated —some-what entirely ing predicta- letter the file was of the view contents the file—that a ble, paragraph: for it stated in last its “quick review of the file indicates that Mr. will returned “[Mr. Swisher’s] records be was, fact, in top Swisher involved secret Center, to the National Personnel Records activities; and it appears that he was copy and a of this letter will be filed in Mr. awarded the medals that he claims that he military official records.” was awarded. ... [The do not documents] Swisher’s official file also con- appear impeaching.” to be The court told copy original tained a of Swisher’s Form counsel that it would conduct a more thor- DD-214. This Form DD-214 matched ough review of the file over the weekend. precisely DD-214 the Form that Swisher registered County the Idaho Recorder’s When the trial Monday, reconvened on February office in 2001. This Form DD- January the court discussed Swisher’s 214 showed that had never re- official file with counsel off the any military ceived awards. Then, record. on the record and without jury present, the court stated its con- Swisher’s official file also contained the clusions. The court stated that file Keeley two documents had sent to by had been sent to the court the National Dowling for evaluation. One of the docu- Personnel in response Records Center ments was a copy “replacement subpoena; court’s the Dowling DD-214” purportedly signed by Capt. W.J. letter the file matched the provid- letter Woodring, pulled Jr. that Swisher had out by prosecution ed to the court pocket of his on the witness stand. The Friday; and that Dowling letter con- other purportedly document was a letter “replacement cluded that the DD-214” and written to Woodring on Octo- “supporting letter” purportedly signed 16,1957. ber That letter stated: by Woodring were “not authentic.” But pleased you am your inform “very the court stated that it found the file action, combat awards and citations have *28 decipher.” difficult to The court stated: been copy replacement verified. A of a document, DD 214 transfer which more It not at all is clear to me what the service, accurately your military is; reflects truth of the matter I suspect it is attached to this correspondence. something The has to do with fact that original has been dealing forwarded to the Com- we are with events that occurred that, mandant of Corps fifty years ago the Marine at Head- at the time that quarters occurred, Corps Washington, Marine in they involving top were secret D.C. military activities. event, because, was “entitled any whether Swisher you to look at I wanted
So any your Replica Purple make own Heart or obviously, you have to to wear you sig- lapel” think the on his was as to what other kind of little medal judgment only nificance of it is. issue that arose on cross- “collateral examination.” problem that “the court stated The reviewing the documents had court that he Defense counsel told the court have, the documents we camera is that “concerned about when the Govern- was themselves, self-authenticating neither are letter],” Dowling which the got ment [the self-explanatory.” nor prosecutor provided had to the court concluded: The court Friday morning, January prose- 21. The turn issue I not want to this And do responded, got it—I believe “[W]e cutor mini-trial under Rule peripheral into Long got day by going it the before Agent 608(b) Rules of Evidence. of the The to the Veterans’ Administration.” letter, Dowling added that the
prosecutor alone, that standing prove did not Swish- point of the record at this the state So DD 214” “replacement was fraudulent. er’s jury is not to jury is that the before He said: battlefield com- Mr. Swisher’s consider thereof,
mendations, although lack they really prove, What would have to credibility certainly assess his they can resolved, they if this were to be is would regard to the extensive cross-exam- with DD- prove have to that the substitute conducted the de- ination that was in, signed by Captain Woodring, jives all of the how it with fense and see believe, signa- '57 — ... that the October case. other Captain Woodring forged; was ture of that, light replied counsel Defense that would suggest probably and I would court, de- before the information now whether it’s correct or not. resolve opportunity question fense deserved you something that prove How would “replacement further about Swisher very signed in 1957—I doubt military experience. De- DD-214” and his us, with but I Woodring much Mr. is still reiterated that Swisher fense counsel don’t know. on the witness stand. Purple Heart worn it “was not at all agreed The court the court that prosecutor The reminded yet” convinced that “the document his direct examination pocket of his pulled [was] Mr. Swisher out elicit “for the attempted he had military or not” because Swisher’s false was, in- truth of the matter “self-explanatory.” The record was not Instead, said, deed, in combat.” stated, idea, somebody if court “I have no ... be- about “a conversation heard operations, involved in secret Hinkson re- tween Mr. Swisher and Mr. file ... personnel or not their whether him, you asking ‘Were garding ever reflect those missions.” would ” prosecutor also ad- ever combat?’ that it to hear from “a court stated needed Replica Purple call a dressed “what we the National Per- records custodian from Heart at all.” Purple It’s not a real Heart. else Records Center or someone sonnel prosecutor’s conclusion The basis of familiar records who is more with on the lapel pin Swisher wore than of us.” and decorations Heart Purple was “not a real witness stand *29 the defense would The court ruled that from the record. The at all” is not clear further that, to recall Swisher for pеrmitted in be maintained to the court prosecutor examination but per- may cross would not be The defense reference these doc- mitted introduce into any during uments its cross-examination.... bearing military the documents on his ex- sum, In the court ques- finds is, perience. That the court ruled that the tionability of Swisher’s character for permitted defense would not be to intro- may amply truthfulness be demonstrat- letter, letter, duce the Tolbert the Dowling jury by re-opening ed to the cross-exam- anything else contained Swisher’s by allowing ination and the defense to military official file that had been sent in reference the impeaching documents response subpoena. to the court’s The during the cross-examination. court stated: The documents which form the basis I will let the way defense decide which
for the military doubt cast on Swisher’s they go; want to either leave it alone or record and [his] entitlement to wear the call him. Purple Heart are pro- extrinsic evidence specific bative of a incident of untruth- The next morning, Hinkson’s counsel in- fulness. that, formed the court given inability
The court therefore holds that introduce into military evidence the docu- admission of these documents is barred showing ments that Swisher had lied on 608(b). by Rule the stand about receiving Purple Heart decorations,
and other he had decided not to recall Swisher. Furthermore, the court holds ad- mission of the actual documents of im- The government made several refer- peachment is barred under Rule 403. military ences to Swisher’s experience dur- First, yet the documents have not ing closing arguments jury. to the authenticated; officially been and this prosecutor began by explaining signifi- process could waste considerable time cance of testimony: Swisher’s on tangential only indirectly issues relat- judge will you further instruct ed to the issues to be resolved at trial that the fourth sort of circumstance that and, perhaps, submitted to the as you can strongly consider to be corrobo- early as tomorrow. rative of Mr. Hinkson’s intent to solicit Second: The documents themselves murder would be the fact that an ac- are not entirely They conclusive. are cused believed or was aware that certainly not self-authenticating. The person previously solicited had commit- Government would have to be allowed to similar ted offenses. introduce conflicting documents or testi- Mr. testimony powerful. mony officers to explain He talked about how Mr. un- Hinkson them. derstood that Mr. Swisher had been state, The proffered documents peo- had killed lot of summation, that Swisher’s record does ple. very impressed by He was that. indicate that he earned service fact, Swisher, In according to Mr. Mr. record or service medals his mili- asked, you “Have killed some- however, tary duty; other documents body?” available to the court suggest indeed, might, have earned such “Yes,” says, And when Mr. Swisher medals. not, “Wow, Mr. response Hinkson’s terrible,” is,
that must be but it “How *30 ... I to the part my killed?” He was duties have access many people you have military official States records of very impressed by that. United former which are members USMC “[a]nother that prosecutor The stated deposited in the N[ational] P[ersonnel] Joe Mr. Hinkson liked Swisher reason and, my other among R[ecords] C[enter] Mends is Mr. Swisher had been they were authenticity I responsibilities, evaluate the Marine Mr. Hinkson hаd Corps. in the information, af- records and documents Navy. you in the Joe Swisher told served fecting Department individual Defense experiences about in the they talked their including transfer documents DD Forms later, prosecutor The stated Service.” 214.” Swisher, a you reason- suggest “Mr. find, juror could told the truth about able Miller that had never concluded Swisher gov- At the end of the
the solicitation.” Purple a He wrote been awarded Heart. closing, prosecutor ernment’s stated following: that his reasons included the Mr. that Hinkson “understood A. medical Swisher’s records show military a record that he had served any he did not sustain combat and killed It’s kind of people. combat wounds, rather he involved in a a person thing.” he thinks do such will private motor accident near vehicle 27, 2005, January days after two On Townsend, on 10 Washington Port deliberations, guilty returned at February 1957 and was treated on the Swisher-related solicitation verdict Bremerton, at hospital Wash- hung on all acquitted counts. It other ... ington. counts. by B. DD Form 214 signed Swish- 3, 2005, just March over month On August er 1957 ... which is a on later, moved for a new defense counsel part military of his official rec- U.S. trial under Federal Rule of Criminal Pro- a specification contains that he ord on, relied cedure 33. motion inter was not entitled to benefits[.] VA alia, “newly discovered evidence” that official rec- C. Swisher’s U.S. had lied oath on witness under subject ord indicates he was produced forged and had docu- stand re- disciplinary an Article action in court. That evidence consisted of ment sulting Corporal in demotion from newly obtained from Chief affidavit War- to Private First on 28 Feb. 56 Class Miller, the Marine Corps rant Officer W.E. mili- which involved disobedience to the Personnel Records liaison National law active tour of tary Center, newly and a obtained affidavit duty[.] Woodring, from now-retired W.J. Colonel Jr., signa- Marine whose Corps officer D. official rec- Swisher’s U.S. original on appeared ture Form being than ord shows rather DD-214, “replacement the purported assigned post-War to missions DD-214,” purported “support- and on the (as Swisher) he claimed Korea “replacement for the DD-214.” ing letter” Camp Fuji was stationed precisely what the These documents were Yokosuka, Japan 4 March to 6 court and the had said district no docu- May supporting 1956 with prove needed to Swisher had were or information to indicate mentation on the stand. lied classified participated that he stated, Corps expeditionary opera- Miller Marine Warrant
Chief Officer into performed incursions February dated “As tion an affidavit *31 1280
Korea his tour of active duty tive to the USMC Reserves on duty.... Aug. 3 57 would have directed the first, issuance of a DD E. Form 215 expedition- Swisher asserts that the before ary replacement missions he was with version of involved Swisher’s original Korea were DD Form 214 “Top classified as operations. Secret” would have Ma- been issued.... U.S. Corps rine perform any did not H. There is no record of a DD Form operations classified “Top or Se- having 215 ever been issued for operations cret” during Swisher’s Swisher. tour duty. of (Emphasis original.) brackets in Miller also concluded that “replace- ment DD-214” that Swisher presented (and, Now-retired government’s in court was not an “authentic document.” surprise, living) still Corps Marine Colonel (Miller referred to this document “Ex- as Jr., Woodring, W.J. in an affidavit dated C.”) hibit In addition to the fаctors enu- February 2005, stated: in support merated of his conclusion that 2. spent years I months Swisher was not entitled Purple to a United Corps. States Marine I was Heart, Miller wrote: Captain in the Marine Corps A. Military Rules and Procedures re- 1957. I am now I retired and reside quire that a DD Form 214 can only in Southern California. be retyped issued and at the Head- I
quarters 3. have of reviewed Exhibit A signed the USMC attached by designee purports which copy to be a Commandant of a of the Marine letter Corps who addressed to Pfc offices Elven Joe (Swisher) Headquarters. Capt. Woodring dated 16 Oct never held designation. such 1957. I did not write or cause Ex- hibit A to C, be B. written. Below the Exhibit provides: box 32 “[tjhis Fidelis, words Semper there replaces document previ- handwriting ously purports to my issued be document transfer signature. sign 8-3-57.” did not There are Exhibit A. no additional What my signature records in looks like Swisher’s on Ex- sup- file that port hibit A is actually the claim the image my origi- Swisher’s signature nal DD Form 214 that has somehow replaced; been superimposed upon the letter. Ex- C, C. Exhibit box provides: A forgery. hibit is a “[cjhanges and additions have been by Changes Command.” verified I have reviewed Exhibit B attached additions original which purports copy to be a of a DD Form 214 if truly “verified “Replacement DD 214” for Swisher. Command” would have resulted in In box 34b handwriting there is verification documents becoming a purports my to be signature. I did part of Swisher’s official mili- U.S. sign not Exhibit B. What looks like tary record.... my signature on Exhibit B is actual-
ly image my signature Military G. policy and procedure which has somehow been superimposed
has been in effect since before the upon the letter. Exhibit B is a for- time of Swisher’s transfer from ac- gery. in order to obtain ben- denied his service court April
On entitled, which in viola- efits to he was Apply- a new trial. motion for Hinkson’s *32 1001(a)(2); § and for tion of 18 U.S.C. in forth United States the criteria set ing testimony “forged a false and presenting (9th 915, 919 Cir. 339 F.3d Waggoner, v. to DD-214” in order obtain benefits form for 2003), several reasons gave the court entitled, he in violation of to which was trial the basis grant to a new on declining §§ 641 and 642. As the date of 18 U.S.C. newly discovered evidence. of Hinkson’s clear, govern- indictment makes the the First, Hinkson court concluded that the indicted than ment Swisher more two in evi- seeking the diligent had not been after district court ruled on years the the now court. Sec- he submitted dence motion for a new trial. On Hinkson’s ond, court the evidence the concluded on April convicted “newly “[t]he because was not discovered” three counts of the indictment. Be- all is proffered of documents both substance cause Swisher’s indictment and conviction of generally cumulative not new not occur until after the court did district Finally, available information.” previously trial, for ruled on Hinkson’s motion a new the court concluded importantly,” “[m]ost obviously court not have the district could ‘new1 is not proffered “the evidence reaching in considered them its decision. trial, nor would material the issue acquittal, in probably trial result an new Appeal III. the is inadmissible.”
because court, appeal to this Hinkson chal- On explained “previously that it The court the of lenges denial his motion for new at trial ... and now held on the record First, grounds. trial on three Hinkson reiterates, proffered doc- admission pre- that the court in argues district erred by testimony is still prohibited uments and introducing him from cluding into evidencе 608(b), introducing which bars Fed.R.Evid. military documents that would have the past the evidence of witness’s extrinsic Purple lied shown about his conduct.” decorations, Heart, about his other forged “replacement his DD-214.” about 3, 2005, Hinkson on June was sentenced Second, argues that prosecu- Hinkson for convictions as well as for his solicitation engaged referring tion in misconduct currency structuring tax evasion and his background during its Swisher’s of 43 convictions. He received total closing argument clearly after it was prison: years ten on the tax and years official notice of contents Swisher’s structuring years ten on each of charges, Third, military file. argues charges, an addi- three solicitation trial is entitled to a new based on years having tional three for made presented post-trial new evidence in the pretrial while on release solicitations only under I motion Rule 33. would reach tax case. arguments. agree the first and third arguments would with both those Subsequent II. Indictment and court on either reverse district based Conviction of Swisher of them. 30, 2007, July indict- On Impeaching A. Refusal to Admit knowingly wearing military for
ed Swisher Documents Military into entitled, he was not decorations which Evidence Heart, including Purple violation 704(a); willfully § for and know- 18 U.S.C. abuse of discretion a dis- We review for including evidentiary rulings, court’s making representations false about trict ingly 1282 impeachment admit or exclude incident of untruthfulness” and therefore
decisions to Tran, 608(b). United v. 568 F.3d inadmissible under Rule evidence. States (9th Cir.2009); United v. States The district court erred as matter of (9th Cir.2002). Geston, F.3d holding letter, law that the Tolbert apply then error We must the harmless letter, and Dowling the other documents evidentiary standard. We will reverse file could be excluded under “only if ruling for abuse of discretion such 608(b). Advisory Rule The 2003 Commit likely nonconstitutional error more than tee Notes to Rule 608 make clear that “the *33 the not affected verdict.” United States v. prohibition absolute on extrinsic evidence (9th Edwards, 235 F.3d 1178-79 Cir. applies only when the for prof sole reason 52(a) 2000); see also Fed.R.Crim.P. or fering support evidence is to attack (“Harmless error, defect, Any Error. ir the witness’ character for truthfulness.” or does not regularity, variance that affect comm, 608(b), advisory *34 sively that had presented false unduly be time- concluding that it would testimony and presented forged had a doc- jury to to consuming confusing and ument trial. no military the official documents show- admit disputes longer that Swisher lied about his receiving a lied about ing that Swisher military experience presented forged and a Heart, that, challenged, and when Purple contends, DD-214.” It how- “replacement “replace- a having lied about so-called ever, newly that the and obtained Miller Although parts of ment DD-214.” some Woodring affidavits do not warrant a new have been may record Swisher’s trial. understand, jury a to other lay difficult for of a We review for abuse discretion dis comprehend. For ex- easy were to parts a a trict court’s denial of motion for new clearly writ- ample, Dowling letter newly upon trial based discovered evi simply It stated unambiguous. ten and See, Sarno, e.g., dence. United States v. directly that had not been and 1470, (9th Cir.1995). A dis 73 F.3d 1507 not been awarded combat had court it trict abuses its discretion when of- medals. Other documents Swisher’s law, makes an of when it rests its error to ficial file—which been sent clearly findings on decision erroneous pursuant subpoena the court to its fact, or when are left with “a we definite authenticity was not in doubt—un- whose firm that the court conviction district ambiguously showed that Swisher’s “re- judgment.” committed error of clear DD-214” was a placement forgery. Given (9th Gordon, Delay v. 475 F.3d 1043 government’s crucial role (internal Cir.2007) quotation marks omit Hinkson, the time it would against case ted). taken to this could have admit evidence probative hardly outweighed have its val- v. 410 Harrington, Under United States (9th ue. Cir.2005), a F.3d 598 criminal defen- satisfy five-part must in order dant test allow The district court’s refusal to prevail on a motion for a trial: new documentary evi- Hinkson to admit this “(1) newly not a harmless evidence must be dis- [T]he dence was error. Swisher covered; (2) principal the failure discover the government’s was the witness must not the result only counts on which Hinkson was evidence sooner be diligence a lack of on the defendant’s convicted. The would have formed (3) impression material significantly part; different of Swish- the evidence must be 1284 (4) trial; requirement.
to the
at
the evidence
Our usual rule is that newly
issues
merely
must
neither cumulative nor
discovered evidence does
entitle a
be
de-
(5)
impeaching; and
evidence
fendant to a new trial
must
unless
probably
probable
indicate that
new trial would
indicates that
is more
than not
acquittal.”
acquittal.
result in
that the
trial will
new
result
newly
applies
This rule
most
discovered
(quoting
Id. at 601
United States v. Kulc-
evidence, including newly discovered evi-
(9th
Cir.1991)).
zyk,
F.2d
931
548
tending to
pre-
dence
show that evidence
court applied
Harrington
The district
this
sented at the
trial was false.
defendant’s
test, citing Waggoner,
Thus, we know from the uncontradicted that the document forgery. was a trial transcript that Hinkson’s counsel tried to obtain military Swisher’s learning record After “replacement of the DD- immediately after his deposi- January 14, October 11 214” Friday, on the defense tion. government We also know that au- to quick investigate authenticity. was its thorities, over whom defense Wednesday, January 19, counsel had On following “very control,” little respond. were slow long holiday weekend, to defense in- counsel government The provide did not anything the they formed court that had learned to provided Hinkson until it the Tolbert that Swisher had two recorded different day letter on very the of testi- Swisher’s DD-214 forms County, with Idaho mony. government hardly The can claim that the DD-214 earlier-recorded was “de- During if it period, Hinkson’s trial. this and medals.” ... honors void of so, government had to do the could they spoken wished also stated that Counsel mili- easily Swisher’s official Personnel Records have obtained at the National to staff tary file whether its star that the Center stood to determine who stated Center telling the truth. But so far Tolbert letter but witness was the conclusions of the shows, government the made documents as the record not release additional would subpoena from a no effort to so. without do about Swisher to agreed subpoena The court judge. argues Hink- government The now file, military which arrived two Swisher’s investigating was diligent son Swish- later, January days Friday, on But military er’s record. for two and military kept file to years, government The court half it was the weekend, and then dis- virtually investigate review over the made no effort to Monday, January to closed it counsel on of its star Fur- trustworthiness witness. testimony day ther, of before the last full it nine- government was the that took The court ruled that it closing arguments. days to ty respond request Hinkson’s to recall would allow defense immediately after Swisher’s October de- examination, but would military for further cross position for information about his to introduce into not allow defense government record. Yet the now has the any of the documents argue evidence nerve to that it was who further The court stated incompre- obtained. was not It is diligent. almost mini-trial not want to conduct a government did hensible me that the would put government experts would entirely which make that It is incom- argument. explain majority stand the documents. prehensible accept on the that the would concluded, Hinkson’s trial the de- it. Once diligent obtaining evi-
fense to the Trial 3. Material Issues at Woodring and Miller. It filed dence just one motion for a new trial over its Harrington test part third month after the conclusion trial. See newly requires that discovered evi- 33(b)(1) (providing that mo- Fed.R.Crim.P. to the at trial.” dence be “material issues newly “grounded for a new trial tions In the a new trial motion under context of filed must be within 3 discovered evidence Harrington, materiality special has added)). (emphasis after verdict” years meaning. Materiality Harrington under ques- does not evidence duty require had its own record, origi- at the hav- tion would have been material investigate Swisher’s Rather, Har- possibility materiality nal trial. under ing alerted to “the real been testimony.” rington requires N. Commonwealth false Bowie, materially alter the result on question Islands v. 243 F.3d will Marina cases, (9th Cir.2001). many there will be little Because the retrial. In govern- *38 See, practical e.g., or no difference. Unit- grand jury in the participated ment had 1001 George, ed States v. F.3d long knew before Hinkson’s proceedings, (9th Cir.2005) (analyzing materiality in given potentially counsel trial). Harring- But testimony military terms the first experi- his false about of what jury testimony clearly test framed terms grand ton is ence. Swisher’s first happen retrial rather than what years two and will April 2002. This was was original trial. See Har- deposition, happened at the months three before (“[T]he at 601 rington, 410 F.3d years two sixth months before and and indicate that a prob- must new trial would As I part discuss detail in five of the test, ably acquittal.”); Harrington result see also I conclude that Kras- the Miller (“Yet, Woodring affidavits would ny, always probably 607 F.2d we have acquittal result in on retrial. The affida- required showing that the new evidence vits would not have to be admitted into ‘probably’ would in an acquittal result evidence to govern- have this effect. The trial.”); (ex- upon a new id. at 845 n. 3 ment has now conceded that Swisher lied plaining materiality probability record, about his that he did not really “are two of measuring means combat, engage in that he did not earn the thing”). below, same As I discuss in ad- Purple Heart he wore on the witness dressing Harrington's, requirement, fifth stand, that he did not earn conclude that newly discovered evi- other records to which he claimed dence of Swisher’s fabrications makes it entitled, he was and that he brandished a probable that a new trial will result forged “replacement DD-214” in front of acquittal. Thus, I also conclude that the jury. Both sides now know the truth. new evidence is Harring- material under If Swisher takes the stand and is asked ton. record, about his military and if he is majority The relies on evidentiary rul- asked whether he lied under oath about ings by made the district court. It notes trial, that record at the first the truth will that the district court held that documents necessarily come out. There are two al- showing that Swisher lied about his mili- truth, ternatives. If Swisher tells the tary record were truth will inadmissible under come out through testimony. Fed- 608(b). lies, If eral Rule of majori- Evidence will The have a professional ty obligation to correct further notes that the rec- the district court ord and to testimony disown the of its star excluded the evidence under Rule 403. As witness. above, discussed the district court’s evi-
dentiary 608(b) ruling under Rule was 4. Neither Cumulative nor wrong law, as a matter of ruling its Merely Impeaching under Rule 403 was an abuse of discretion. (erro- majority The merely does not hold part fourth Harrington test neously) that the evidence correctly requires that the new evidence be “neither by excluded the district goes court. It cumulative merely nor impeaching.” further, suggesting that because the dis-
trict a. properly court Cumulative impeach- excluded the ing documents from evidence under Rules The district court concluded that “[t]he 608(b) these documents could substance proffered of both documents is have no material effect on retrial. if Even not new and generally is cumulative of true, this were this is irrelevant under previously available information.” The Harrington. materiality test under “previously available information” to which Harrington is not newly whether the dis- the court referred consists of the docu- covered evidence—the Miller and Woodr- ments that came to light at three different ing affidavits—would have been admissible points first, during the trial: the Tolbert during Hinkson’s first trial. The test letter used defense counsel to cross newly whether discovered evidence 14; examine second, Swisher on January probably would result in acquittal on letter, retri- Dowling prosecution which the *39 al. gave to the court morning on the of Janu- only The district court stated that “the the court also received 21 and which ary uncertainty way” to resolve the surround- day of Swisher’s official part that as later “silent would be to hеar from file; third, ing the file” the of military and remainder records from the National file, “a custodian military the official which Swisher’s or who Personnel Records Center someone January of the afternoon court received on military is more with records familiar of us.” any prosecu- than The decorations trial, During the district court concluded agreed with the court’s assessment and tor neither these documents established that added: testimony was nor that that false Swisher’s really have [the What would defense] “replacement DD-214” was fraudulent. the resolved, if to be is prove, this were January reviewing Monday, after On signed ... DD-214 that the substitute file, the Dowl- including Swisher’s in, believe, I by Captain Woodring, Octo- weekend, letter, told over the court ing the signature Cap- ber '57 —that ... the of the presence outside the of counsel forged; I Woodring tain was and would “very it found file difficult that the suggest probably that resolve would the that “the truth of decipher,” stated it’s not. whether correct or clear.” court was “not at all matter” you prove something How would in the file counsel that the documents told signed very that was in 1957—I doubt self-authenticating nor self- “neither were us, Mr. is still Woodring much with but conclusively de- did “not explanatory” and know. don’t The court concluded that cide the issue.” it had “not all convinced” that it was Precisely the the additional evidence question to “resolve the enough evidence lacking was supplied court said was that Mr. or not the document of whether for a in his motion new trial pulled pocket of his is false Swisher out the form of an affidavit Chief War- not.” Miller rant Officer Miller. is U.S. Corps Liaison Officer to the Na- Marine it re- The district court stated that job Records Center. His tional Personnel of the truthfulness mained uncertain about authenticity informa- is to “evaluate the authenticity testimony and tion, affecting indi- records and documents DD-214,” “replacement despite Department Defense transfer docu- vidual gov- that Swisher’s file was fact DD Forms 214.” Miller including ments had that the court itself ernment record concluded, thorough investigation, after despite the fact that the subpoenaed, and a for- replacement DD-214 was Dowling contained the letter. file and that had not earned gery letter, by an in the Dowling written officer personal other com- Purple any Heart or Corps, Headquarters the U.S. Marine mendation. plain language stated military commen- personal not earned Similarly, precisely the evi- additional DD- “replacement dations prosecutor lacking said was dence forgery. 214” was a Another factfinder form of an affidavit from supplied may Woodring. have this evidence sufficient As it found the now-retired Colonel (to out, forger a liar. use Woodring that Swisher was Colonel show turned words) explicit saying “still with us.” prosecutor’s But the district court was unequivocally stated Woodring it found that the evidence then before Colonel signatures both the affidavit that his it was inconclusive. *40 1290 Cir.1991),
purported
(concluding
as
1957 letter
the
amended
replacement
forgeries.
government’s
DD-214 were
new evidence
the
impeaching
sufficiently powerful
central witness was
sum,
In
the court stated at trial that
trial);
require a new
United
v. Tag-
States
it
the evidence before was insufficient to
(7th
lia,
Cir.1991) (ex-
413,
922 F.2d
415
falsity
allow it to determine the truth or
plaining
prohibition
that the
on
im-
using
of Swisher’s evidence. Defense counsel
peachment
to seсure a
evidence
new trial
court,
presented
then
the
support
value”);
at
should not be “taken
face
Bal-
trial, precisely
the motion for a new
the
States,
915,
estreri v. United
F.2d
additional evidence the court and the
(9th Cir.1955) (“To deny in every case a
prosecutor said was needed to resolve the
motion for a
ground
new trial
circumstance,
uncertainty.
In this
this
newly
for
discovered evidence
the sole rea-
possibly
new evidence cannot
be consid-
son
‘merely
was
evidence
im-
ered cumulative.
peachment’
injustice.”).
might often lead to
The majority concludes that the Miller
recognized
We
in Davis that
enforcing
and Woodring affidavits are cumulative be-
per
prohibition
se
on impeachment evi-
attorney
cause
already
“Hinkson’s
had
dence as the basis for new trial would be
proffered
‘Replacement
evidence
such
spirit
33,
inconsistent with the
of Rule
forgery,
DD-214’ form
the form
“permits
which
granting
of a new trial
Dowling
of the Tolbert
Maj.
letters.”
motion ‘if required in the
jus-
interest of
Op. at
majority
1266. The
would be on
” Davis,
tice.’
960 F.2d
825. A per se
ground
firmer
if
concluding
so
the dis-
prohibition
be
would also
inconsistent with
trict court
agreed
with this statement.
our longstanding refusal to draw a “cate-
However,
very
the district court was
clear
gorical
types
distinction between
of evi-
in saying precisely
opposite
of what
415;
Taglia,
dence.”
922 F.2d at
see also
majority
says.
just
now
As I have
States,
Giglio
150,
v. United
405 U.S.
154-
explained, the district court concluded that
55,
763,
(1972)
92 S.Ct.
sometimes,
Merely
b.
Impeaching
newly-discovered impeachment evidence
Impeaching
may
that,
properly sup-
may
powerful
be so
if it were to be
port a motion for a new trial
fact,
under Rule
believed
the trier of
it could
Indeed,
expressly rejected
we have
testimony
render the
totally
witness’
in-
proposition
“impeachment
case,
evi-
credible.
In such a
if the witness’
dence ...
testimony
never sufficient to warrant a
were
pro-
uncorroborated and
new trial under Fed.R.Crim.P. 33.” Unit-
only
vided the
evidence of an essential
(9th
Davis,
ed States v.
960 F.2d
case,
element of
government’s
Cir.1992) (emphasis
original);
impeachment
see also
evidence would be ‘materi-
(2d
Wallach,
United States v.
Harrington
1291 825; quittal.” 922 I conclude this new evi- Taglia, F.2d F.2d at see also 960 probably acquittal result in at (holding a new trial would be dence would 415 at if after the comparing under Rule it were discov- retrial. I so conclude 33 warranted government’s trial the star evidence at trial on the three so- presented after ered unworthy of “utterly being licitation on which Hinkson was ac- counts witness consistently lied three quitted, because he had and the counts on which believed cases”); Wright 3 et string previous in a was convicted. al., (noting § supra, 563 I apologize length for the of the discus- usually “not evidеnce is suffi-
impeachment follows, sion that but it is A unavoidable. trial,” justify a but that this is cient to new judge “a who is asked decide whether rule,” “in and flagrant not an “invariable probably acquit- new trial would result in suffice”). may cases necessarily carefully tal” must the examine motion for a new denying In Hinkson’s presented in first evidence that was trial, the district court wrote that “the trial, and, corollary, as a the evidence that [ie., the Miller and evidence proffered likely presented is to be the second trial. impeachment evi- Woodring is affidavits] judge ruling may A on a new trial motion for is a new and so not a valid basis dence choose to describe that not evidence apparent from this statement trial.” It is detail, necessarily but he or she must con- mistakenly that the district court believed importance sider it. the nature and Given law, that, impeachment as a matter of case, of this I describe it in detail so that may the basis for a provide never evidence may for reader understand basis discussed, just our cases do trial. As new my conclusion. so hold. Three were solicitations murder majority that the Miller The concludes charged through in Counts Woodring impeaching are and affidavits counts, govern- In these indictment. satisfy fourth and therefore cannot charged ment that Hinkson had solicited writes, It Harrington. requirement January “in or 2003” Harding James about “[E]videntiary of the extrinsic admission (Count (Count 1), to murder Cook Hines Woodring and affidavits would serve Miller 3). (Count 2), Lodge jury acquit- The impeach other than to Swish- purpose no ted on all three of these counts. Hinkson testimony record er’s as to charged Three more solicitations were testimony rather than his as Hinkson’s counts, In through Counts 4 6. these Maj. at 1266. The ma- Op. solicitations.” government charged that Hinkson had so- jority mistakes the nature of Miller Harding “on March licited or about James They are Woodring power- affidavits. (Count 4), 2003” to murder Cook Hines enough permit jury to conclude ful (Count (Count 6). 5), jury The Lodge Hink- testimony inculpating that Swisher’s deadlocked on these three counts. only testimony uncorroborated son—the three implicating Hinkson on the counts charged in Three more solicitations were “to- jury for which convicted him—was counts, 9. In through Counts 7 these tally incredible.” had so- government charged licited Swisher “between about December Probability Acquittal on Retrial
5. February 2002 and 2003” to murder Cook (Count (Count 8), 7), Lodge requirement fifth Hines Harrington (Count 9). a verdict of new must indicate that returned that “the guilty on these counts. probably trial would result in ac- a new Finally, operated threats to commit murder Hinkson owned and two lucrative In called charged Grangeville, were in Counts 10 and business WaterOz counts, charged *42 these that small town Idaho. bottled WaterOz wa- dissolved, by Anne Bates which Hinkson made statements to ter into had been a process supposedly to the chil- invented which he threatened murder secret 10) (Count Hinkson, very particles dren of the children small of minerals Cook and (Count 11). acquitted gold of jury platinum. According Hines The such as and to Hinkson, Hinkson on counts. the water marvelous medici- these has nal properties. Hinkson advertised and Hink- The issue at trial was not whether magic sold his water over the Internet. kill Harding son asked and Swisher to Cook, Hines, Lodge. tax, evidence Hinkson did not federal pay and income persuasive ground was that he had so. The on asserted that he done was not (In obligated issue Hinkson seri- legally separate was whether had been to do so. a is, ous in That our requests. appeal, three-judge panel his the issue was affirmed whether an actual that he had “intent” Hinkson’s criminal conviction on tax his Cook, Hines, killed, offenses.) Lodge currency which structuring be and 373(a). § required was under 18 U.S.C. paranoid. Hinkson was unstable and Only soliciting if Hinkson was serious in continually He people, was worried that Cook, Hines, Lodge— the murder of including government officials and his own is, only that if he had an actual intent that were employees, trying take WaterOz they be killed—did he commit criminal from him. After partici- Cook and Hines offense. pated early-morning in an raid of his home jury acquitted outright Hinkson on in November Hinkson repeatedly three of charging they the nine counts solicita- that claimed had tried murder him. 373(a). § tion in of violation these also repeatedly On Hinkson claimed that an counts, three jury attorney Albers, that the concluded named Dennis who previ- government had not shown that Hinkson ously represented plaintiff had in a suc- him, in soliciting been serious murder on against cessful suit was trying to that up occasion. The could not make him. murder counts, its mind on three more of the developed Hinkson grudges easily and unable to Hink- unanimously conclude tenaciously. held them He had a special son had been in soliciting serious murder for employees dislike the federal gov- on that The jury occasion. was able to ernment. his talk Sometimes was some- unanimously conclude only on three example, what comical. For he talked to 7-9, involving counts—Counts the counts Harding “fed-a-pult” James about a and a Swisher—that Hinkson had been serious “fed-guard.” According Harding, in soliciting murder. To likeli- assess the “fed-a-pult” catapult was device feder- hood of an on acquittal retrial on the three agents canyon al into a into an oncom- (Counts 7-9), Swisher-related counts I A ing “fed-guard” train. was something to compare the on Har- the three put your “on front of car like a cattle (Counts 1-3) ding-related counts which on guard.” Sometimes talk was not comi- acquittal. Hinkson granted outright all. example, cal at For the evidence at More than testimony half the trial trial multiple showed Hinkson asked provided occasions, background Cook, all people, multiple evidence for to kill charged Hines, counts the indictment. Lodge, and Hinkson re- This background evidence said peatedly showed he wanted to torture and kill
1293 But, a joke.” chil- ... and it and Hines’s back became including Cook’s people, testified, “I Harding assumed that was dren. further, tested.” testified “And being He 1-3 Supporting Evidence Counts a. $10,000 Iup, thought came this when charged in Jan- test.” through was his Counts Har- solicited James uary Hinkson Bates, kitchen, in the who was also testi- Hines, As Cook, Lodge. to kill ding episode. about the fied above, jury acquitted noted table in the kitchen.... We were counts. on these *43 something along the lines saying He was supporting Counts people of that he would like some these was follows. In November through 3 as dead, money and he a lot of that he had 2002, Harding Anne and or December I produced from somewhere. And don’t forum” met Hinkson at “health Bates manner, maybe joking know in a he if— time, Har- At that California. Southern [ie., said, Harding] it to and offered J.C. manager in South- ding was restaurant know, this, does is you “Whoever this Previously had Harding ern California. theirs,” along something those lines “in the bodyguard and worked been I from what can remember. He had recent- field.” most entertainment prosecutor say asked: “Did he it was paranor- on “the ly “hosted” radio shows answered, joke?” say She “He it did mal”; radio work had been before that his joke, no.” was a shows, shows, morning afternoon “comedy drive, His last radio work entertainment.” house in Bates remained Hinkson’s he years three before testified. Harding was to Grangeville, but went back bring things to Southern California Bates’s forum,” Hinkson, Har- After the “health Harding’s in a U-Haul truck. On back Bates, others went out to ding, and several house, again stayed he return Hinkson’s meal, During the Hinkson offered eat. second of “probably” during the week Jan- job Harding and Bates a at WaterOz. uary. Harding testified as follows: Grangeville begin- to at the Bates drove January stayed and at Hink- ning Q. you of discus- Did have further house. son’s with Hinkson where he talked sions Mr. feds, these three officials? about federal and night Harding On second Every I talked Dave. That stay, Harding sitting was A. time to Bates’s every nearby. table. was Har- was on mind time when we kitchen Bates “a on every Hinkson handed him talked occasion. ding testified that money.” responded large Harding sum Q. happen Did that second occa- joke: to a crude “Who do I have with sion? Hinkson According Harding, blow?” to Absolutely, yes. A. like, who “something ‘It’s not responded you you who have to have blow but ” Q. say? What he did testified, Harding “I could make this kill.’ [Cook, Hines, die; they are money they A. That need killing much demons; to be It they He a wad him of need tortured. Lodge]. had also with coming sort; that I don’t like supposed was to be was sick stuff some and that them; $10,000. $10,000 they I my flat There was a out of mouth.... hate another die; they $10,000.” demons; they need fee, this Har- are was a wad killed; I got people to be have “pulled Hinkson then need ding testified that Q. working you on that. You never know if he Have with Mr. worked Glover? I kidding or serious. want their A. Yes. cut; tortured; throats I them want Harding very friendly became with want them taken out and shot in the stayed Hinkson and frequently at his knee who is caps having and told it done in Grangeville house on the weekends. why being it’s done. visits, During repeatedly those Cook, Hines, killing Lodge. discussed Q. Did he say Agent how wanted Q. you go On the occasions back Hines killed or harmed? up Grangeville, you would see Mr. Hinkson? A. No. visit ... The second wasn’t A. Yes. specific. rhetoric, It just malicious Q. you to him Would talk on the same killed, like I’m He saying. would be subject the three matters of federal offi- executed. becomes a Dave madman cers? *44 will, when it. he talks about He literal- A. Extensively. ly, get very It’s angry. anything you Q. things Did he mention these about can think is wild. It grew of that killing federal officers more than once? grew each time. A. Every spoke, yes. time we visit, During this second Hinkson asked Q. many How times? Harding get to ammunition for guns that kept Hinkson in house. Harding testi- Fifty____ A.
fied not seem did to know Q. Did there come time when he also much guns, about and that he very was money? you offered Harding interested what knew about A. Yes. them: my about knowledge “[W]e talked Q. In relationship you to when first guns grew up and that I guns around Grangeville, came to trip first and shotguns. He wanted to know how early January, when would be the sec- my was, extensive background the basics ond you money? time he offered got of how I why into it and I was into it.” weeks, A. A couple maybe. Harding testified he had worked as a bodyguard, and that Hinkson knew him The second time Hinkson offered Har- through a body- friend who was also a ding money, men the two were driving tо guard: the bank. Harding testified that Hinkson
Q. you How know you $10,000 do he knew with him. through bodyguard? another Q. say What did he ... ‘I They A. good were They friends. A. Just leading. You could use the were close friends. cash. you you Do need cash? Do need Q. Who is that? money. You could use this money. extra A. Mark Glover.... Him and David—I Think about it. I never knew if he was don’t very know how—are close friends. kidding. always serious or He talked And I through it; know doing Mark securi- about it always and it said was work, ty bodyguarding. leading, supposed like I bite.
Harding eventually became convinced Q. you Have worked as a bodyguard? that Hinkson serious in soliciting had been A. Cook, Hines, Yes. him to kill Lodge. When
1295 that, getting A. I’m counselor. in March of again him Hinkson solicited F.B.I. He Harding contacted expertise that he had Swisher testified her, Cook, telling “Some- Nancy spoke “assaying,” length and testified at some attempt your to make an body going testing for about his work WaterOz believe, life, phone if I make this don’t of minerals dissolved concentration arranged Harding for The F.B.I. call.” him prosecutor water. Then the asked house a record- to Hinkson’s with go back military background, and Hink- about his body. Possibly concealed on his ing device background: in that son’s interest suspected the existence because Hinkson Q. you Have ever served the Armed device, nothing incrim- Hinkson said Forces, Mr. Swisher? that occasion. inating on A. Yes. Supporting Evidence
b. Q. you Did Mr. Hinkson ever ask through 7 9 Counts your in the about service Armed Forces? through charged be- Counts A. Yes. February 2002 and tween December Q. you did in? What branch serve Cook, to kill Hinkson solicited Swisher A. Corps. United States Marine Hines, above, Lodge. As noted Q. you Did ever discuss that with Mr. Hinkson on these counts.
jury convicted Hinkson? much of the already I have described A. Yes. through 9. I supporting Counts *45 Q. your And what was the nature of recount it here in more detail to facilitate discussion with him? the evidence meaningful comparison to supporting through Counts 3. Swisher recall, I A. As Mr. Hinkson stated he wearing Purple pin took the stand Heart Navy. had been in the I indicated I had direct, folksy lapel. on his On he was Corps. been in the Marine He asked if garrulous: any I had served in I combat situations. Swisher,
Q. how of a man are Mr. old him, ... told “Yes.” you? Q. you What else did he ask about yesterday. A. I turned 68 combat situations?
Q. You live in Idaho? any- if I had ever A. He asked killed Yes, A. I do. one.
Q. long? For how Q. you say? What did My gosh. thirty years. A. Over him, asked, A. I told “Yes.” He “How him,
many?” many.” IAnd told “Too Q. you How did have an interest Q. that one conversation or sever- Was mining? al? Well, friend, A. I an who is have old may happened period A. It have over a his soul—and he was now dead —bless of time. epitome one of the—he was the of an Q. period What of time? range day rider till the he died. Idaho Oh, throughout probably A. off and old, single-action an .45 He carried Colt year country. range and rode the the back you man- testified that Hinkson knew Q. My question is: How did firearms: age mining]? expert careers he was an with [to switch out, Q. you thirty, ever claim to will kick them I expect, forty Did Mr. all, you proficiency yards any problem with firearms? without air- .... challenge borne And the is to hit A. I believe he knew that I was target the airborne when it’s across rifleman, expert pistolman. you. from Q. How did he know that? very
Swisher testified that Hinkson was Albers, angry at Dennis whom Swisher him, A. I he probably told ob- also disliked. Swisher testified some- my shooting. served shortly April time after 2002 Hinkson told Q. you What the occasion that him “in private” he wanted Albers and shooting went him? with family members tortured and killed: probably A. I it believe was Decem- Q. What was that Mr. Hinkson said? ber, sometime December of Well, A. he started off talking about Ukraine, gentleman had a ... how he would like to have Mr. Albers visiting.... going He said we were wife, family, and his particularly his employee’s meet out at an who lived Margaret, tortured and killed. And he country, Mr. Rich Bellon.... [W]e quite went into a description of the tor- day. shot the course of the ture. Q. Who did? Q. And what was that? Hinkson, Myself, A. Mr. and the Rus- A. He would—he said he would like to gentleman. sian bound, stripped, see them gagged, and then burned with cigarettes or ci- Q. you did bring? What gars. And then while Albers was down brought Henry A. a .22 lever-action observing on his knees occurring this rifle and .32 semi-automatic Browning his wife family other members pistol, and a .45 auto. that might present, be he wanted to Q. your How was shooting? a plastic bag put have over her head so *46 I always A. hit what I aim at. that she would suffocate to death in him, along front of Q. family with the other How was Mr. shooting? Hinkson’s members. Then proce- he wanted that terribly A. Not good. Albers, repeated dure on Mr. himself. Q. you What were shooting at? Q. you Did he want something to do Well, A. we shot trap some with a shot- regard? gun. only I maybe shot a half dozen A. describing When he finished what times I recently pacemak- because had a done, he wanted then he offered me installed; shotgun, er and a a twelve- $10,000 a head to do it. gauge particularly, jars you kind of Q. What was his demeanor like when around a little. I decided I quit would you he telling things? these time, in due I my targets. but hit IAs recall, I don’t believe David hit of A. He was cool and calm at that time. his. Q. your response What was to Mr. Hinkson? “trap Swisher described their shooting” as follows: A. I told him he of was out his mind and he needed to knock that kind of BS person who wasn’t shooting would off, and I didn’t even think about it. clay pigeons
throw the for the others. spring-loaded You have a Q. hand unit that respond How did he to that? just reply judge by and then didn’t added a federal the name A. He smiled subject. I, changed the Lodge essentially, list. And dropped point the hammer at that testified that he had a further David. July “in conversation Hinkson’s trailer” 2002: August Q. you Let me first ask what he asked regarding people? to do those Q. say did Mr. Hinkson about What Nancy how he felt about Cook and Steve A. way He wanted them all treated the Hines? the initial regarding offer Albers A. He wanted them treated in the family and his had been handled. initially same fashion as he had de- Q. you anything Were to receive family Mr. Albers scribed for and his doing return for that? I .... asked if remembered the [H]e $10,000 A. At least head. And I regarding offer he made Mr. Albers and that, made a mental note with all of the that, course, I I family. his And said time, people he named at that we were done, did. And he said he wanted $100,000. well over basically, family with Ms. Cook and her family. Mr. I Hines and And him, again, that he of his told was out $10,000 Q. Did the Nancy offer include also, I, mind. And went into a little bit Cook and Steve Hines? of a dissertation because David was Oh, yes. A. said, “Well,
friend that time. And he Q. Did it include Mr. Albers? know, I you you’re I know used to it. A. Yes. mean, said, you people.” killed I have Q. it “Yes, Did include the children of those people I have killed in defense of others; people? my you life and but what are murder,
talking about is and there is a A. Yes. you difference here. And significant Q. What did want done with the because, your get need to out of head people? children of those you talking way, if continue it will A. Treated the same fashion. get you you trouble. And if continue Q. How? talking way you this and I think are this, report serious about will have to A. Tortured and killed. it to the authorities.” Now, mentioned, time, Q. you you this Q. respond How did he to that? *47 reacted in a different fashion? Well, got again; A. he his smile Yes, A. I I’m I did. afraid became a subject. changed then he hostile, myself, point bit at that time. Swisher testified after Cook and Q. you say? did What
Hines arrested Hinkson in a raid on his hostility house in to- November him, A. I regarding told these matters testified, ward them intensified. Swisher to kill or me trying people having further, that had a Hinkson third conver- on, for him that I murder them and so Judge Lodge sation which was added to again never wanted to hear that and to victims: list intended fuck off. And he left. '03, January approached A. he [I]n Q. again[,] through me went the names of What was his demeanor like when him, people asking you had offended he was do this? Q. pleading person A. almost in a fashion That’s the here at the table? He was telling that last time. He was me how Correct, right A. sitting there. they harassed he had been and how record, THE COURT: For the the wit- they just hurt him and were out to not Special Agent Long. ness has identified him, too, just him kill and he get but to you, Thank [THE PROSECUTOR]: done; had to have this and as his best ques- Your Honor. I have no further time, friend, put as he it at that he felt I direct, tions on Your Honor. should do it. government’s direct examination of Swisher testified that sometime forty-three pages Swisher filled of tran- spring finally or summer of con- examination, script. including Cross official. tacted law enforcement Howev- testimony about Purple er, which he was unsure about the date on DD-214,” Heart and the “replacement so, unforthcoming he did and he was about eighty-three pages. During filled this the details of what he told law enforcement examination, cross Swisher made clear officials: that on each of the three occasions when Q. you anyone When did contact Albers, Cook, Hinkson him kill solicited legal authority regarding Mr. Hinkson? Hines, and Lodge, there were no wit- Oh, just A. I think it was probably nesses. Swisher stated plainly: “When he before he was re-arrested in '03. I’m not me, made three direct solicitations to quite sure of the date there. they in private.” were made Q. you talking spring Are about Much of the cross examination was de- summer '03 or what? showing hostility voted to the extreme be- A. It probably No. would have been tween Swisher and Hinkson. This hostili- getting Spring, close to summer there. ty had arisen supposed after Hinkson’s summer, through somewhere there. murder, solicitations of Swisher to commit April, thinking. Sometime after I’m for reasons unrelated to the solicitations. Q. right. All Richard Bellon key was one of Hinkson’s A. I might wrong. be WaterOz; indeed, employees at trap Q. you shooting place And who did contact? had taken at Bellon’s house. Sometime in late Hink- Bellon sued A. County contacted the Idaho Assis- son. In response, brought Swish- tant Grangeville. Prosecutor from suit, er into the apparently third-party as a Q. Now, Prosecutor, ahe State as defendant. Swisher then counterclaimed opposed ato Federal Prosecutor? $500,000. against Hinkson for more than A. Yes. That’s correct. Relations between Swisher and Hinkson Q. you And express did some concern became so strained that Swisher accused to him? hiring Hinkson of kill someone to him. IA. did. Swisher testified that he “at a remote Q. Was it Mr. regarding Hinkson? County area in Idaho awith Vietnam com- *48 A. Yes. bat veteran that friend.” Swisher said Q. Thereafter, you by were contacted when, sitting in an according outhouse the FBI? tеstimony, by to his someone hired Hink- A. Yes. However, at him son shot and missed. Q. you? contacted Who Swisher admitted that he never saw the A. Mr. Long. person Will supposedly shooting, who did the
1299 Q. you remember casings footprints evening Do and that no shell Mr. Swisher went to Mr. Bellon’s house ever found. were you for dinner? with Only one witness corroborated Swisher’s Yes, A. I do. testimony that Hinkson had been interest- in, by, impressed Q. Swisher’s I testimony ed And believe there was was Richard background. That witness in approximately Sep- occurred Bellon. Bellon testified that Hinkson tember of '02? body- to hire Joe Swisher as
“wanted Yes, just A. open before his heart sur- to hire guard.” felt like he needed “[H]e gery. because he was trained”:
[Swisher] explain you how Q. Did [Hinkson] Q. And there was someone who came Mr. Swisher was trained? night? to dinner that Who was that? A. Yes.... was that Mr. Swisher [I]t A. Roman Polankio the Ukraine. military background, extensive combat, and that he that he had been Q. gun evening? Who fired during the war. Mr. people had killed really guns, A. I’m not interested in me about that and Hinkson would tell it Mostly, and shot twice. Joe [Swish- him, past. the details of his shot from his chair because he had a er] testimony, never men- In his own standing. pretty hard time He was sick. that Hinkson had wanted to hire tioned Bellon, trap shooting at whose home the bodyguard. him as a Nor did Swisher place, government took was called mention that Hinkson had been inter- ever testify. government did ask military background because ested Bellon whether was true that Swisher bodyguard. of a desire to hire a disease; “pretty was then sick” with heart in his de- Hinkson took the stand own “mostly that Swisher shot ... from his already testified that fense. Swisher had Swisher, chair”; though or that ill and on three occasions Hinkson had solicited chair, sitting successfully in a hit all of his Hink- private” him “in to commit murder. targets. targets, according Those having denied made such specifically son testimony, rapidly had been solicitations: moving clay pigeons thirty to for- airborne Hinkson, Q. Mr. Mr. Swisher indicated ty yards away. by you that he solicited on a had been you number of occasions.... Do recall Comparison c. of the Evidence testimony? that he said that in his through 1 3 Counts A. ... Yeah. 7 through Counts Hinkson, Q. you did ever have a Mr. background against Hink- communication with Mr. Swisher where for both son was same Counts anyone? you asked him to murder (the Harding-related counts on through 3 No, A. sir. acquitted) which he was and Counts 7 (the counts on through different recol- Swisher-related Hinkson had a somewhat convicted). which he was It was relevant lection of the excursion to Bellon’s house. Swisher, had a they had to all of these counts According engaged that he dis- paranoid personality; unstable trap shooting “during the course of testified, with his af- my “I tar- liked interference day.” hit Cook, fairs; disliked particularly that he gets.” Hinkson testified: *49 1300 Second, and
Hines, Harding and that he had asked Hinkson were Lodge; and occasions, good friends at the time of the solicita- multiple people multiple on Swisher, They unfriendly only tions. as a Harding and to kill became limited to Cook, Hines, Harding’s reporting result of to the F.B.I. Lodge his behalf. and that had solicited him to commit 1 specific The evidence to Counts murder. Swisher and Hinkson also had through through 3 and Counts 9 is simi- good been at the time friends of the solici- First, in of respects. lar a number there But, by Harding, tations. contrast to that was evidence that Hinkson believed enemy, Swisher had become a bitter for in Harding both and Swisher were skilled solicitations, by reasons to unrelated Second, the use of firearms. there was Thus, Harding, the time of trial. unlike Harding that Hinkson knew that reason, ample Swisher had unrelated to bodyguard, and that he was had been solicitations, to wish ill Hinkson when using body- in as a interested Swisher he testified at trial. Indeed, that Hink- guard. Bellon testified Third, Harding testified that Hinkson son’s interest in Swisher’s back- January first solicited him in mur- 2003 to ground and skill firearms stemmed from Cook, Hines, Lodge. der He testified using body- as a interest again that Hinkson solicited him in March Third, guard. charged solicitations Immediately 2003. after the March solici- at place took about the same time. Counts tation, Harding contacted the F.B.I. In an through charged that suppos- conduct F.B.I., help Harding effort to went so edly January took place 2003. Counts 7 recording far as to wear a secret device through 9 charged supposedly conduct that an attempt incriminating obtain evi- place took between December 2002 and contrast, against By dence Hinkson. February 2003. Swisher testified Hinkson solicited specific The evidence counts these him shortly April after 2002 to murder However, respects. differed in some three Albers. testified further likely those differences made it more him in July August Hinkson solicited would have on the convicted 2002 to Finally, murder Cook and Hines. Harding-related counts rather than on the Swisher testified that Hinkson solicited Swisher-related counts. Cook, him in November 2002 to murder Hines, Lodge. Swisher testified that First, a corroborating there was witness go he did not prosecutor to local Idaho charged to one of the of Har- solicitations report Hinkson’s until solicitations some- ding. Bates awas witness to the solicita- April time after tion in beginning Hinkson’s kitchen at the January. Harding She testified that she saw the was so concerned about Hink- money “wad” of on the kitchen table and son that went to the F.B.I. within two Harding she heard Hinkson tell that months of the time Hinkson first solicited Cook, Hines, him, money if immediately was his he killed after the second Lodge. F.B.I., Harding Bates testified that Hinkson time. When contacted the had not said that he joking good when he he and Hinkson were still on terms. contrast, By said this. Harding spoke directly Swisher testified testified that he Cook, Nancy there were no witnesses to one of Hinkson’s would-be victims, Hinkson’s three specifi- thought solicitations. He and told her that he she cally that all danger. Harding testified three solicitations was in then wore a wire place private.” took “in request attempt of the F.B.I. *50 him could have seen as a well he Hinkson against someone to obtain killer. qualified By con- dangerous. was clearly thought year after trast, waited at least Swisher trap further testified that while Swisher Albers, at murder him to Hinkson solicited shooting he had demonstrated to Hinkson after Hinkson nine or ten months least jury that he was an excellent shot. The Hines, him to murder Cook solicited had some reason to doubt might have after four months at least three or testimony that he hit all of his Swisher’s Cook, Hinkson him to murder solicited targets, given Hinkson described Hink- Hines, reporting Lodge before in very as a sick man who sat Swisher officials. Unlike to law enforcement son shooting. jury But the could chair while pros- called a local Idaho Harding, Swisher Hinkson, well have disbelieved and could F.B.I., though even rather than the ecutor have believed that Swisher had indeed threatened, and, had been federal officers Hinkson demonstrated to on occasion no Harding, gave specifics Swisher unlike jury that hе was an excellent shot. The offi- what he told law enforcement about could have concluded that an actual dem- finally contacted cials. When Swisher shooting prowess by onstration of Swisher he and Hinkson were no prosecutor, local impressive was more to Hinkson than Har- nothing longer good terms. There ding’s knowledge mere talk about his ever to indicate that Swisher the record guns. help a wire or otherwise to offered to wear Second, during testified that Swisher against gather incriminating evidence first solicitation Hinkson’s “demeanor” had Hinkson. cool,” “calm and and that been against the evidence respects In three third solicitation Hinkson’s “demeanor” stronger at trial was the Swish- Hinkson pleading By “almost in a fashion.” was Harding-re- counts than er-related contrast, Harding testified he had dif- lated counts. ficulty telling whether was seri- soliciting Only ous in the murders. after a First, that Hinkson be- Swisher testified Harding solicitation March did second particularly qualified him to be well lieved that Hinkson had been serious. decide testified that he to be a killer. Swisher experience told Hinkson about his combat Third, presented himself as a Swisher Korea, had killed “too and that he Marine who had been United States now know that Swish- many” people. We country. in the service of his His wounded in combat in Korea and er was never may hero have status as a decorated war anyone, let alone “too never killed been, jurors, all of the an for some or However, there is evidence many” people. testimony. reason to believe his additional Bellon that Hink- from both Swisher and jury may particu- have found Swisher (falsely story. believed the Swisher’s when, son larly sympathetic after credible claimed) could well experience combat Hinkson’s counsel that accusation on Hink- greater impression have made a lying was about his rec- with fire- Harding’s experience ord, dramatically than produced son bodyguard. pocket. as a There DD-214” from his “replacement arms and his work also, despite trial —most the district jury might deal of evidence at great instruction, the de- penalized Swish- court’s have of it from Swisher himself—about to be an unfound- appeared have fense for what ill-health. But the could er’s ill-health, on a war hero. ed attack decorated despite concluded *51 friends, first trial once were now replay Our task is not to the bitter enemies who might help predict it what had sued and counter-sued each other. except as us retrial, if is retried on happen impeachment would On Swisher would through question 9. The before parties Counts 7 not be so limited. The now know at a new trial. happen us is what would conclusively, based on the Miller and question the is whether the Specifically, affidavits, Woodring forged that Swisher Harrington requirement fifth is satisfied: “replacement pur- his DD-214” and his that a Does the new evidence “indicate ported “supporting letter” Colonel probably acquit- new trial would result in Woodring, forged and that he used these tal”? in documents an effort to obtain veterans’ parties benefits. The also now know con- trial, original
In the Swisher was the clusively that in Swisher never served only provide witness direct any personal military combat earned that Hinkson solicited him to commit the commendations, that in- he was not retrial, killings. government would On jured in private battle overseas but in a rely but to on have no choice Swisher Townsend, automobile accident near Port supply the evidence 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 is an participating the first trial in about secret understatement. Korea, in combat missions North about trial, original jurors At Hinkson’s action, in being wounded and about receiv- certainly impression almost had the ing Purple a Heart. Swisher was a decorated combat veteran. trial, a government At new prosecutor put described in could Swisher his testify, on Swisher the stand to as he did opening statement as a “Combat Veteran trial, original that he from Korea told Hinkson Korean Conflict” violent, that he who ... decorated Korean War vet- “was averse to dan- gerous many” eran who had killed “too activity,” closing people. and stated in his government argument argue could then Hinkson “understood” that Hinkson, believing things, seriously Swisher “had in these served combat and killed solicited Swisher to kill people.” response In three to defense counsel’s time, retrial, officials. But questions, this on defense produced “replace- his counsel and the government ment DD-214” would know on the witness stand and the truth. testified that he had seen combat Korea and earned a Purple Heart. Defense impeach Defense counsel would counsel asked the district court to instruct by asking if it was true he was not jury disregard testimony be- veteran; fact Korean War that he jury cause he feared that might penal- Purple fact not won a Heart or other ize the defense for wrongly assailing a war awards; that he had not in fact been in- Although granted hero. the court defense jured in combat in Korea but rather request, counsel’s the court’s instruction to accident; private automobile and that lapel pin referred to Swisher’s as fact he had lied to the Idaho Division of “Purple Heart “military Medal” and a injuries Veterans Services about his commendation.” non-existent in an attempt get medals Defense counsel’s efforts to impeach benefits to which he was not enti- original Swisher at the trial already enough, focused tled. That would be bad Hinkson, fact that Swisher and who get were but would worse.
Defense counsel would also ask Swisher Hinkson from introducing documents into whether, appeared the last time he in evidence to show that Swisher lied about Hink- testify against court to under oath his forged “replace- record and son, Purple lapel pin he wore a Heart to ment DD-214.” I would also reverse the *52 entitled, presented which he was not a district court’s denial of the motion for a DD-214,” forged “replacement and lied new trial newly because the discovered time, about his record. This de- produced in support of the mo- fense counsel would not be left defenseless five-part tion satisfies the Harrington test. if response Swisher were to choose to lie in questions
to these because this time the
government would also know the truth. If
Swisher were to lie in response questions, would be
obligated to correct the record. See Na- 1173;
pue, Hayes 360 U.S. S.Ct. (9th Brown, Cir.2005) v. 399 F.3d MENDIOLA, Petitioner, Eddie (en banc). v. short, In a new trial would be disaster government. jury for the A new would HOLDER, Jr., Eric H. United States learn, did, only as the first Attorney General, Respondent. Hinkson, friends, Swisher and once No. 08-9565. become bitter enemies the time Swisher learn, testified. It would also as the first United Appeals, States Court of not, jury did no Swisher had com- Tenth Circuit.
punction lying about under oath to serve Oct. 2009. еnds, and that he had lied under oath produced forged documents at Hink- conclude, I son’s first trial. therefore un- test, part
der the fifth of the Harrington probably a new trial would result
acquittal. Summary
Because Hinkson’s motion met all five
requirements test, Harrington I
would hold that he is entitled to a new trial
on the soliciting Swisher-related counts of
murder.
Conclusion errors,
The district court committed two
either of which was sufficient to reverse its grant
decision and new trial.
would reverse the district court’s denial
Hinkson’s motion for a new trial because
the district court erroneously precluded Fed.R.Evid. notes rights disregarded.”). substantial must be (2003). Hinkson did not seek introduce sought Hinkson to introduce the Tolbert “purpose those documents for the sole of letter, letter, Dowling the the rest of attacking ... the witness’ character for Swisher’s official file in order to Rather, sought truthfulness.” receiving show that Swisher lied about the specific introduce the the documents for Purple Heart and his other claimed mili- purpose contradicting of in-court testimo decorations, tary and to show he had ny by governed Such is Swisher. evidence forged “replacement his so-called DD-214” by “permits Rule which courts to ad jury. he had brandished before the specific mit extrinsic evidence that testi court this district excluded evidence false, mony by is because contradicted oth 608(b) based on Federal Evidence Rules of Castillo, er v. evidence.” United States and 403. (9th Cir.1999). 1129, 1132 181 F.3d 608(b) provides: Rule Swisher took the witness wearing stand Specific instances of the conduct of a a Purple lapel pin, thereby Heart affirma- witness, of purpose attacking for the or tively stating he had been wounded in supporting witness’ character for serving combat while the United States truthfulness, other than conviction of 801(a) provides, armed Rule forces. “A provided may crime as rule ‘statement’ ... nonverbal conduct of a by be proved They extrinsic evidence. person, if by person it is intended as however, may, in the discretion of the Recall opening assertion.” that in his court, if probative of truthfulness or un- before, days statement to the three truthfulness, be into inquired on cross- prosecutor had described Swisher as (1) examination the witness concern- “a Combat Veteran Korea ing the witness’ character for truthful- Korean conflict[who] was not adverse to (2) untruthfulness, ness or concerning or violent, ... dangerous activity.” Particu- the character for truthfulness or un- statement, larly given prosecutor’s truthfulness of another witness as to jury hardly understanding could avoid which being character the witness cross- wearing Purple of the Heart as has examined testified. ... “nonverbal conduct ... as an intended The district court assertion” that he had wounded in deemed documents been bearing military experience military on Swisher’s combat. The documents Hinkson probative specific sought “extrinsic evidence of a have directly to introduce would statement, credibility per- if Hinkson and would er’s had been contradicted mitted to introduce evidence that Swisher to be liar. have shown Swisher record lied about on the stand. refusing by also erred The district court below, the reasons I describe For detail introduce this extrinsic Hinkson to to allow into this would have called serious doubt Swisher based impeach evidence testimony, including his all of Swisher’s provides: Rule Rule describing statements his interactions with relevant, may be ex- Although Hinkson. if its substan- probative cluded value is by danger of unfair tially outweighed Support B. New Evidence Produced in issues, or prejudice, confusion for New Trial Motion by misleading jury, considerations a new Hinkson’s motion for trial assert- time, or need- delay, of undue waste affidavits, Woodring ed that the Miller and of cumulative evidence. presentation less trial, newly proved after conclu- obtained its The district court abused discretion