FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30303

Plaintiff-Appellee, D.C. No.

v. CR-04-00127-RCT  District of Idaho, DAVID ROLAND HINKSON,

Boise Defendant-Appellant.

ORDER 

Filed July 14, 2010

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,

Kim McLane Wardlaw, William A. Fletcher,

Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea,

Sandra S. Ikuta and N. Randy Smith, Circuit Judges.

Order;

Dissent by Chief Judge Kozinski;

Dissent by Judge W. Fletcher

ORDER

Appellant’s Petition for Rehearing by the Limited En Banc

Court and for Rehearing by the Full Court is denied. Chief

Judge Kozinski and Judges Pregerson, Wardlaw, W. Fletcher,

and Paez voted to grant the petition. The remaining judges

voted to deny it.

The original en banc opinion filed on November 5, 2009

remains unchanged, except that Chief Judge Kozinski concurs

only in the portion of the opinion that clarifies this court’s

10103
abuse of discretion standard of review, but dissents from the

application of that standard to the facts of this case as stated

in his partial dissent filed today with this order. The original

en banc dissent filed by Judge W. Fletcher on November 5,

2009 is vacated and replaced by the attached dissent filed

today with this order.

No further petitions for rehearing will be accepted.

Chief Judge KOZINSKI, dissenting: 

I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but

now disagree with the application of this standard to the case

before us. I had underestimated the trust some jurors would

have placed in Swisher if they thought he was a decorated

combat veteran, and the likely backlash if they had learned he

was a fraud. My change of heart came about after I read the

Supreme Court’s summary reversal in Porter v. McCollum,

130 S. Ct. 447 (2009), and the amicus brief of William Mac

Swain filed in our case. Without Swisher, the government had

no case. I’m now persuaded that Judge Fletcher has the better

of the argument for the reasons articulated in his dissent,

which I join in full. 

W. FLETCHER, Circuit Judge, dissenting, joined by

KOZINSKI, Chief Judge, and PREGERSON, WARDLAW,

and PAEZ, Circuit Judges:

I dissent. 

Following a two-week trial in federal district court in

Boise, Idaho, a jury convicted David Roland Hinkson of

soliciting the murder of three federal officials. The govern10104 UNITED STATES v. HINKSON
ment’s star witness supporting the conviction was Elven Joe

Swisher. Wearing a Purple Heart lapel pin on the witness

stand, Swisher testified that he had told Hinkson that he was

a Korean War combat veteran and that Hinkson, impressed by

Swisher’s military exploits, solicited him to kill the officials.

The government maintained in its opening statement to the

jury that Swisher was a Korean War combat veteran, and it

maintained throughout the trial that Hinkson’s understanding

of Swisher’s military exploits showed that he was serious in

his solicitations of Swisher. The government now concedes

that Swisher neither served in combat nor earned any personal

military commendations, and that Swisher presented a forged

military document in court and repeatedly lied under oath at

trial about his military record.

Hinkson makes three arguments on appeal. First, he argues

that the district court wrongly excluded documentary evidence showing that Swisher presented a forged document and

lied on the stand. Second, he argues that the prosecutor

engaged in misconduct when he invoked Swisher’s military

service in his closing argument despite having substantial reason to suspect that Swisher had lied about that service. Third,

he argues that the district court abused its discretion in denying his motion for a new trial based upon his discovery after

trial of new evidence conclusively establishing that Swisher

had lied on the stand.

I would reverse the district court based on Hinkson’s first

and third arguments. I would hold that the district court

abused its discretion when it excluded documentary evidence

that would have contradicted Swisher’s claim on the stand

that he was a decorated combat veteran. I would also hold that

the district court abused its discretion when it denied Hinkson’s motion for a new trial. I would not reach Hinkson’s second argument.

UNITED STATES v. HINKSON 10105
I. Background

The majority opinion recites some of the background facts

relevant to Hinkson’s appeal. In my view, however, the

majority’s recitation is too truncated. I begin by providing the

background necessary to understand what went on during

Hinkson’s trial, and to understand why I believe the district

court abused its discretion. 

In an indictment filed on September 21, 2004, a federal

grand jury in Idaho charged Hinkson with soliciting the murders of Assistant U.S. Attorney Nancy Cook, IRS Special

Agent Steven Hines, and U.S. District Court Judge Edward J.

Lodge. All three officials had been involved in the investigation and prosecution of Hinkson on tax and currency structuring charges. Hinkson appealed his conviction on those

charges in a companion case. The three-judge panel of which

I was a member affirmed that conviction in a separate memorandum disposition.

The superseding indictment in the case now before us contained eleven counts. Counts 1-6 charged that Hinkson, in

violation of 18 U.S.C. § 373, sought to persuade an acquaintance named James Harding to murder Cook, Hines, and

Lodge, first in January 2003 (Counts 1-3) and again in March

2003 (Counts 4-6). Counts 7-9 charged that in December

2002 or January 2003, Hinkson, again in violation of § 373,

sought to persuade Swisher to murder Cook, Hines, and

Lodge. Finally, Counts 10 and 11 charged that Hinkson, in

violation of 18 U.S.C. § 115, personally threatened to kill the

children of Cook and Hines.

Hinkson was convicted on only the Swisher-related counts,

Counts 7-9. The jury acquitted Hinkson on Counts 1-3, 10,

and 11, and deadlocked on Counts 4-6. This appeal involves

only the Swisher-related counts.

At several points during Hinkson’s trial, the prosecutor

emphasized Swisher’s military background, and Hinkson’s

10106 UNITED STATES v. HINKSON
understanding of that background, in an effort to show the

seriousness of Hinkson’s solicitations. In his opening statement to the jury on January 11, 2005, the prosecutor stated

affirmatively that Swisher “was a Marine, a Combat Veteran

from Korea during the Korean conflict. He was not adverse

to this kind of violent, dangerous activity; but he wanted no

part of murdering federal officials.” However, during direct

examination of Swisher three days later on January 14, the

prosecutor did not ask Swisher whether he was, in fact, a

Korean War combat veteran. Somewhat oddly, given his affirmative statement to the jury only three days earlier, the prosecutor asked Swisher only what he had told Hinkson about his

military experience in Korea.

Swisher came to the witness stand wearing a replica of a

Purple Heart on his lapel. A Purple Heart is an award given

to members of the United States military who are wounded in

combat. Swisher testified that he first became acquainted with

Hinkson in 2000. According to Swisher, he had done some

consulting work for Hinkson’s company, WaterOz, and the

two men had developed a friendship. Swisher testified that he

had served in the Marine Corps. In response to the prosecutor’s questions, he testified further that he discussed his military exploits with Hinkson on several occasions and told

Hinkson that he had been in combat in Korea as a Marine.

According to Swisher, Hinkson had asked whether he had

ever killed anyone, to which Swisher said he had responded,

“Too many.” 

Swisher testified that on various occasions in 2001 and

early 2002, he and Hinkson discussed Hinkson’s legal problems, particularly a civil suit brought against Hinkson by a

former WaterOz employee. Swisher testified that shortly after

April 2002, Hinkson expressed “considerable” anger toward

the employee’s lawyer, Dennis Albers, and spoke in graphic

detail about wanting to see Albers and his family “tortured

and killed.” Swisher testified that Hinkson offered him

UNITED STATES v. HINKSON 10107
“$10,000 a head to do it,” but Swisher “told [Hinkson] he was

out of his mind and he needed to knock that kind of BS off.”

Swisher testified that in July or August of 2002, Hinkson

began to focus on his problems with federal officials. According to Swisher, Hinkson stated that Cook and Hines “had been

harassing him a great deal,” “abused the judicial system,”

“cost him a lot of money,” and “didn’t deserve to live.”

Swisher testified that Hinkson asked him if he “remembered

the offer he made regarding Mr. Albers and his family” and

“said he wanted that done, basically, with Ms. Cook and her

family and Mr. Hines and his family.” Swisher testified that

Hinkson told him, “I know you’re used to it. I mean, you have

killed people [while serving in the military].” Swisher testified that he replied that he would report Hinkson to the

authorities if Hinkson “continue[d] talking that way.”

Swisher testifed that after Hinkson was arrested on tax

charges in November 2002, he had further conversations with

Hinkson. According to Swisher, Hinkson “was extremely hostile to all of the people who had been involved in that arrest.”

In January 2003, Hinkson “went through the names of the

people that had offended him, and added a federal judge by

the name of Lodge to that list.” Swisher testified that Hinkson

then offered him “[a]t least $10,000 a head” to have “them all

treated the way that the initial offer regarding Albers and his

family had been handled” — that is, “[t]ortured and killed.”

Swisher testified that Hinkson spoke in a “pleading fashion”

about how “he just had to have this done.” Swisher replied

that he “never wanted to hear that again.” After the January

2003 exchange, the two men had a serious falling-out, eventually resulting in a lawsuit and a nasty feud. Swisher testified

that sometime after April 2003 he reported Hinkson’s solicitations to a local Idaho prosecutor. At time of his testimony at

Hinkson’s trial in January 2005, Swisher was a bitter enemy.

On cross examination, defense counsel initially did not

inquire into Swisher’s military background. Instead, counsel

10108 UNITED STATES v. HINKSON
sought to discredit Swisher by identifying inconsistencies in

his testimony and by emphasizing the ongoing feud between

Swisher and Hinkson. However, after having indicated that he

had no further questions for Swisher, counsel asked to

approach the bench. At the sidebar, he told the court, “For

quite some time, [the defense has] been trying to dig into

[Swisher’s] military history.” Counsel explained that,

“[b]ecause of his age and because of the time of the war, we

don’t believe he was in the war. We also don’t believe that he

got a Purple Heart or was in combat.” Counsel then told the

court that he had just been “handed a letter from the National

Personnel Records Center indicating that . . . the records fail

to show that [Swisher] ever was recommended for or awarded

any person[al] decorations.” Defense counsel noted for the

record that Swisher was “wearing a Purple Heart on the witness stand, in the presence of the jury.”

Still at the sidebar, the prosecutor responded that he never

asked Swisher about “winning medals or combat” and had

merely asked about “a conversation that [Swisher] had with

Mr. Hinkson and what Mr. Hinkson asked him about.” The

prosecutor did not mention that three days earlier, in his opening statement to the jury, he had affirmatively stated that

Swisher was a combat veteran from the Korean War. The

prosecutor also stated at the sidebar, “For the record, he has

a little — I don’t know — you know, something stuck in his

lapel. If somebody knows what that is, fine. No one has said

what it is.”

The court permitted the defense to reopen its cross examination of Swisher in order to ask about Swisher’s lapel pin

and about his service during the Korean War. In response to

defense counsel’s questions, Swisher testified that he was

wearing “a Purple Heart Medal” that had been awarded to him

by the U.S. government. He then explained that he had served

in combat “[n]ot in the Korean War but following the Korean

War.” He said, “I was part of a special expedition, Marine

Corps Expeditionary Unit that was engaged in combat after

UNITED STATES v. HINKSON 10109
the Armistice, in an attempt to free POWs still in secret prison

camps in North Korea. And that information still remains

classified, so I’m not sure how much more I can say on that.”

Over the prosecutor’s objection, defense counsel then

showed Swisher the just-received letter from the National Personnel Records Center. The letter was dated the day of the

cross examination and had been faxed to defense counsel’s

office at 2:34 p.m. that afternoon. The letter was signed by

Archives Technician Bruce R. Tolbert. The letter (hereinafter

the “Tolbert letter”) stated:

[A] U.S. Marine Corps record was located on file at

this Center for Mr. Swisher based on the information

provided in your request. The USMC record shows

Mr. Swisher served on active duty in the USMC

from August 4, 1954 to his release from active duty

on August 3, 1957. He was subsequently discharged

from the USMC reserves on August 3, 1962. In addition, Mr. Swisher’s Marine Corps record has been

carefully examined by the Military Awards Branch

of the office of the Commandant of the Marine

Corps, and that office has stated that his record fails

to show that he was ever recommended for, or

awarded any personal decorations.

Defense counsel asked Swisher whether the letter “might

refresh [his] recollection as to whether or not the Government

issued [him] a Purple Heart.” 

After Swisher reviewed the letter, the following exchange

took place:

Q [by defense counsel]: Now, sir, when you are

awarded a Purple Heart, are you not given a document reflecting your entitlement to that Purple

Heart?

10110 UNITED STATES v. HINKSON
A [by Swisher]: Commonly.

Q: Were you given such a document?

A: Yes.

Q: Where is that document?

A: In my pocket.

Q: May I see it, please?

A: I have a replacement DD-214, if the court will

permit me to —

THE COURT: Let me take a look at it, first.

THE WITNESS: It is certified. We had to go clear

to Headquarters of the Marine Corps and all over to

get it. Because of the classifications, my record,

along with the other survivors of that Mission, had

been pretty much purged.

THE COURT: Ms. Longstreet, would you tender

that to both counsel, please?

[THE PROSECUTOR]: I have a copy, Your Honor.

THE COURT: Just hang on to it.

[DEFENSE COUNSEL]: What was that?

[THE PROSECUTOR]: I have a copy.

[DEFENSE COUNSEL]: May we approach, Your

Honor?

At sidebar, out of the hearing of the jury, the exchange continued:

UNITED STATES v. HINKSON 10111
[DEFENSE COUNSEL]: I am going to — apparently, counsel for the government knew about the

validity of the Purple Heart. He just said he has a

copy of this.

THE COURT: Have you seen this document?

[THE PROSECUTOR]: He showed me this document this morning, about 9:00 o’clock.

THE COURT: Do you have a copy of it?

[THE PROSECUTOR]: I have a copy of it.

[DEFENSE COUNSEL]: Why didn’t you tell us?

[THE PROSECUTOR]: Why should I?

Swisher had pulled from his pocket a single sheet of paper,

which was a photocopy of a document purporting to be a

Defense Department Form 214, described by Swisher in his

testimony as a “replacement DD-214.” In box 32, near the

bottom of the document, was typewritten: “This document

replaces the previously issued transfer document of 8-3-57.

Changes and additions have been verified by Command. The

original of this DD-214 has been forwarded to headquarters

MC (10-15-57) . . . Entitled to wear Marine Corps Expeditionary Medal.” Near the middle of the document, in box 26,

was typewritten: “SILVER STAR, NAVY AND MARINE

CORPS MEDAL W/ GOLD STAR, PURPLE HEART,

NAVY AND MARINE CORPS COMMENDATION

MEDAL W/ BRONZE ‘V’.” In box 27, immediately below,

was typewritten: “Multiple shrapnel and gunshot — September 1955, Korea.” The document bore the signature “W. J.

WOODRING, Jr., Capt., USMC.”

On the same page, below the photocopy of the purported

Form DD-214, was written: “Filed and recorded at the request

10112 UNITED STATES v. HINKSON
of Joe Swisher[.] At 2:40 o’clock p.m. this 2nd day of February 2004[.] ROSE E. GEHRING[,] Ex-Officio Auditor and

Recorder Idaho County, Idaho[.] By Dana Stroop[,] Deputy[.]

Fee $0[,] 1 pg.” (Underlining indicates handwriting; italics

indicates stamp; brackets indicate material added by me.)

The court excused the jury, and the conversation continued.

The court asked the prosecutor to confirm that he had seen the

document that morning at 9:00 a.m. The prosecutor replied:

[Swisher] showed it to me at 9:00 a.m. this morning because I had asked — he had mentioned Korea,

serving in Korea.

I said, “Wasn’t the Armistice in ‘52?”

He said, “But there was still, you know, combat;

and it continues to this day,” which I happen to

know to be true. There is combat to this day in

Korea.

Defense counsel requested a mistrial based on the prosecutor’s failure to inform the defense that Swisher had given the

government a document that appeared to contradict the letter

from the National Personnel Records Center. The prosecutor

responded that defense counsel “should have listened to me

when I said, ‘Don’t go there.’ ” He elaborated:

I didn’t go into anything about his combat or his

medals or anything else on my direct. He chose to go

down this path, even when I objected to it.

I didn’t draw attention to the little pin in Mr.

Swisher’s lapel. Lots of people wear them. They

could be anything. He wanted to make an issue of it.

. . .

UNITED STATES v. HINKSON 10113
Counsel whipped out his document that he

received minutes ago. I believe he probably didn’t

have enough time to read it and digest it and tried to

use that to impeach the witness. That was improper.

. . . 

It was a grandstand play in front of the jury that

didn’t — that wasn’t so grand, and he got caught on

it. That’s where we are.

There is nothing the Government did that caused

him to go in the area he did. We tried to avoid going

into this area.

I don’t think — you know, I barely had time to

look at this myself. It refers to other — that this

replaces some document previously issued. I don’t

know what that document is, and it just led me to

conclude that this is not a proper area to go into.

The court denied the motion for a mistrial, stating: 

The court finds as a matter of fact that if [Swisher’s document] is a copy of a genuine military record

— and at this point, I don’t have any way to determine that; but it appears to be genuine, at least in

appearance.

It indicates consistently with how the witness has

testified; that he did, in fact, receive multiple shrapnel and gunshot wounds in September 1955 in

Korea; and that he was awarded commendations and

medals, including the Purple Heart.

The court stated that “until the receipt of the [Tolbert] letter,”

the government “had no reason to believe that [Swisher’s doc10114 UNITED STATES v. HINKSON
ument] was discloseable under Brady or Giglio because it was

not impeaching.” 

The court offered to “instruct the jury to strike that portion

of the cross examination of Mr. Swisher that relates to the

Purple Heart. Just tell them to completely disregard all testimony about the Purple Heart.” Defense counsel agreed. When

the jury returned, the court said:

Ladies and gentlemen, it’s been a long day; and I

now realize that I made a mistake in allowing the

questioning with regard to the Purple Heart Medal.

So I am going to instruct you to disregard completely all of Mr. Swisher’s testimony with regard to

that military commendation.

You are certainly entitled to consider all of the

rest of his testimony. Just everything from where I

asked [defense counsel] to re-open, please strike that

from your minds; and you are not to consider it as

evidence in the case.

The contretemps over the Tolbert letter and the “replacement DD-214” took place on Friday afternoon, January 14.

The following Monday, January 17, was a federal holiday.

When the trial resumed on Tuesday, the prosecution rested,

and the defense called its first witnesses.

The next day, Wednesday, January 19, defense counsel told

the court, outside the presence of the jury, that he had

obtained information indicating that the document Swisher

had taken from his pocket while on the witness stand — the

so-called “replacement DD-214” — was fraudulent. Defense

counsel had obtained a photocopy of a different Form DD214, also recorded by Swisher at the Idaho County Auditor

and Recorder’s office. However, this Form DD-214 had been

recorded in February 2001 rather than February 2004. The

UNITED STATES v. HINKSON 10115
earlier-recorded Form DD-214 was identical to the laterrecorded form, with the notable difference that none of the

medals, commendations, or wounds was mentioned in the

earlier-recorded form. “N/A” was written in box 26 where the

Silver Star, Purple Heart, and other awards were specified in

the later-recorded form. “N/A” was also written in boxes 27

and 32 where, in the later-recorded form, “Multiple shrapnel

and gunshot — September 1955, Korea” and “Entitled to

wear Marine Corps Expeditionary Medal” were written.

Defense counsel told the court:

[T]he indications from the people we have talked to

[at the National Personnel Records Center] is that

they stand by the [Tolbert] letter of January 14th and

that they will provide us with a certified copy of his

DD-214 that would not support [Swisher’s document]; that [Swisher’s document] is a forgery; and

that he was never given any of the awards or benefits

as indicated on [Swisher’s document]; and that, further, if any change had been made in the discharge

document, it would have been done on a form DD215 [rather than a form DD-214] . . . .

Counsel further stated that he believed Swisher had not been

wounded in combat but, in fact, had been “injured while in

the Service in a car accident in Bremerton, Washington.” He

stated that the National Personnel Records Center would send

Swisher’s full military record to the court, but only in

response to a subpoena signed by the court. The court signed

a subpoena late that day.

Two days later, on Friday morning, January 21, again outside the presence of the jury, the prosecutor provided a photocopy of a letter to the court “for in-camera review.” The letter

was from Lieutenant Colonel K.G. Dowling, Assistant Head

of the Military Awards Branch of the Marine Corps, to Ben

Keeley of the Idaho Division of Veterans Services. The letter

10116 UNITED STATES v. HINKSON
(the “Dowling letter”) was dated December 30, 2004. What

appeared to be a “received” stamp was dated January 10,

2005. At the top of the Dowling letter, now in the possession

of the government, was a fax line indicating that it had been

faxed from the “ID. STATE VETERANS SVS” in Lewiston,

Idaho, where Keeley’s office was located, on Thursday, January 13, 2005. January 13 was the day before Swisher took the

stand to testify against Hinkson.

The prosecution has given various answers about when it

received the Dowling letter or learned of its existence. On the

morning of January 21, when he gave the letter to the district

court, the prosecutor stated that he “believe[d] Agent Long

got [the letter] the day before by going to the Veterans’

Administration.” Later, in its opposition to Hinkson’s motion

for a new trial, the prosecution stated in its brief that the letter

was “obtained by federal investigators a few days earlier from

the Boise Veteran’s Affairs office.” In its brief to this court,

the prosecution stated that “government investigators obtained

[the letter] on or about January 20.” Finally, in response to the

queries during oral argument before the three-judge panel, the

government’s attorney sent a post-argument letter stating that

he had “been informed that investigating agents on the prosecution team first saw and learned of the Dowling letter on

January 18 or 19, at the Boise, Idaho office of the Department

of Veteran’s Affairs.” There is no indication in the record that

defense counsel had any idea of the existence of the Dowling

letter until the government provided it to the court on January

21.

The Dowling letter indicated that Keeley earlier had contacted the Personnel Management Support Branch of Marine

Corps Headquarters, after Swisher attempted to use his “replacement DD-214” to obtain veterans’ benefits from the

Idaho Division of Veterans Services. Dowling wrote back to

Keeley:

We have thoroughly reviewed the copy of the Certificate of Release or Discharge from Active Duty

UNITED STATES v. HINKSON 10117
(DD Form 214) and supporting letter which you submitted on behalf of Mr. Swisher with your request.

The documents you provided do not exist in Mr.

Swisher’s official file. The official DD Form 214 in

his record of the same date was signed by Mr.

Swisher and does not contain any awards information in box 26, and contains no “wounds” information in box 27. A copy of his official DD 214 is

provided as the enclosure. Given this information we

have reason to believe that the documents you submitted are not authentic.

Specifically, the DD 214 you submitted on behalf

of Mr. Swisher indicates that Mr. Swisher is entitled

to the Silver Star Medal, Navy and Marine Corps

Medal (Gold Star in lieu of the Second Award), Purple Heart, and Navy and Marine Corps Commendation Medal with Combat “V.” However, our review

of his official military records, those of this headquarters, and the Navy Department Board of Decorations and Medals failed to reveal any information

that would indicate that he was ever recommended

for, or awarded any personal decoration.

Additionally, the Navy and Marine Corps Commendation Medal, which is listed in block 26 of the

DD 214 that you submitted did not exist at the time

of Mr. Swisher’s transfer to the Marine Corps

Reserve in 1957. On March 22, 1950, a Metal Pendant was authorized for issue in connection with a

Letter of Commendation and commendation ribbon.

On September 21, 1960, the Secretary of the Navy

changed the name of the award to the Navy Commendation Medal. On August 19, 1994, the Secretary of the Navy renamed the medal as the Navy and

Marine Corps Commendation Medal. It is impossible that the approving officer could have signed an

official document in 1957 indicating Mr. Swisher’s

10118 UNITED STATES v. HINKSON
entitlement to a personal decoration which did not

exist in its present form until 1994.

Further review of Mr. Swisher’s records reveals

that he is not entitled to any service awards, including the Marine Corps Expeditionary Medal, for his

service in the U.S. Marine Corps. Mr. Swisher’s official military records failed to indicate any information that he served in Korea during the period when

any awards were authorized. His records show that

he was stationed at Camp Fuji and Yokosuka, Japan

from March 4, 1955 to May 6, 1956.

There is no information in his military record or

his medical record to substantiate his entitlement to

a Purple Heart medal. His medical records show that

on February 10, 1957, he was involved in a private

vehicle accident near Port Townsend, Washington.

Later on Friday, January 21, the court received Swisher’s

official military file — “a half-inch-thick stack of materials”

— from the National Personnel Records Center in response to

its subpoena. The official military file contained a copy of the

Dowling letter. The government undoubtedly anticipated that

the file would arrive on or about that day, and that when it

arrived it would contain the Dowling letter that the government had presented to the court that morning. The presence

of the Dowling letter in the file was entirely predictable, for

it stated in its last paragraph: “[Mr. Swisher’s] records will be

returned to the National Personnel Records Center, and a copy

of this letter will be filed in Mr. Swisher’s official military

records.” 

Swisher’s official military file also contained a copy of

Swisher’s original Form DD-214. This Form DD-214

matched precisely the Form DD-214 that Swisher registered

in the Idaho County Recorder’s office in February 2001. This

UNITED STATES v. HINKSON 10119
Form DD-214 showed that Swisher had never received any

military awards. 

Swisher’s official file also contained the two documents

that Keeley had sent to Dowling for evaluation. One of the

documents was a copy of the “replacement DD-214” purportedly signed by Capt. W. J. Woodring, Jr. that Swisher had

pulled out of his pocket on the witness stand. The other document was a letter purportedly written to Swisher by Woodring

on October 16, 1957. That letter stated: 

I am pleased to inform you that your combat

action, awards and citations have been verified. A

copy of a replacement DD 214 transfer document,

which more accurately reflects your military service,

is attached to this correspondence. The original has

been forwarded to the Commandant of the Marine

Corps at Headquarters Marine Corps in Washington,

D.C.

. . . 

When you recover from surgery, both Major Morgan and I encourage you to enter a R.O.T.C. program at the college of your choice. Glad we were

able to help.

As indicated above, the Dowling letter stated that “we have

reason to believe” that both of these documents “are not

authentic.”

Outside the presence of the jury, the court stated — somewhat surprisingly in view of the contents of the file — that a

“quick review of the file indicates that Mr. Swisher was, in

fact, involved in top secret activities; and it appears that he

was awarded the medals that he claims that he was awarded.

. . . [The documents] do not appear to be impeaching.” The

10120 UNITED STATES v. HINKSON
court told counsel that it would conduct a more thorough

review of the file over the weekend.

When the trial reconvened on Monday, January 24, the

court discussed Swisher’s official military file with counsel

off the record. Then, on the record and without the jury present, the court stated its conclusions. The court stated that the

file had been sent to the court by the National Personnel

Records Center in response to the court’s subpoena; that the

Dowling letter in the file matched the letter provided to the

court by the prosecution on Friday; and that the Dowling letter concluded that the “replacement DD-214” and the “supporting letter” purportedly signed by Woodring were “not

authentic.” But the court stated that it found the file “very difficult to decipher.” The court stated:

It is not at all clear to me what the truth of the

matter is; and I suspect it has something to do with

the fact that we are dealing with events that occurred

fifty years ago and that, at the time that they

occurred, were involving top secret military activities.

So I wanted you to look at it because, obviously,

you have to make your own judgment as to what you

think the significance of it is.

The court stated that “the problem the court had in reviewing

the documents in camera is that the documents we have,

themselves, are neither self-authenticating nor selfexplanatory.” 

The court concluded:

And I do not want to turn this issue into a peripheral mini-trial under Rule 608(b) of the Rules of Evidence.

UNITED STATES v. HINKSON 10121
. . . 

So the state of the record at this point before the

jury is that the jury is not to consider Mr. Swisher’s

battlefield commendations, or lack thereof, although

they can certainly assess his credibility with regard

to the extensive cross-examination that was conducted by the defense and see how it jives with all

of the other evidence in the case.

Defense counsel replied that, in light of the information now

before the court, the defense deserved an opportunity to question Swisher further about his “replacement DD-214” and his

military experience. Defense counsel reiterated that Swisher

had worn a Purple Heart on the witness stand.

The prosecutor reminded the court that during his direct

examination of Swisher he had not attempted to elicit “for the

truth of the matter that Swisher was, indeed, in combat.”

Instead, he said, the jury heard about “a conversation . . .

between Mr. Swisher and Mr. Hinkson regarding Hinkson

asking him, ‘Were you ever in combat?’ ” The prosecutor also

addressed “what we call a Replica Purple Heart. It’s not a real

Purple Heart at all.” The basis of the prosecutor’s conclusion

that the lapel pin Swisher wore on the witness stand was “not

a real Purple Heart at all” is not clear from the record. The

prosecutor maintained to the court that, in any event, whether

Swisher was “entitled to wear a Replica Purple Heart or any

other kind of little medal on his lapel” was a “collateral issue

that arose only on cross-examination.”

Defense counsel told the court that he was “concerned

about when the Government got [the Dowling letter],” which

the prosecutor had provided to the court on Friday morning,

January 21. The prosecutor responded, “[W]e got it — I

believe Agent Long got it the day before by going to the Veterans’ Administration.” The prosecutor added that the Dow10122 UNITED STATES v. HINKSON
ling letter, standing alone, did not prove that Swisher’s

“replacement DD 214” was fraudulent. He said:

What they would really have to prove, if this were

to be resolved, is they would have to prove that the

substitute DD-214 signed by Captain Woodring, in,

I believe, October ‘57 — . . . that the signature of

Captain Woodring was forged; and I would suggest

that probably would resolve whether it’s correct or

not.

How you would prove that something that was

signed in 1957 — I doubt very much Mr. Woodring

is still with us, but I don’t know. 

The court agreed that it “was not at all convinced yet” that

“the document that Mr. Swisher pulled out of his pocket [was]

false or not” because Swisher’s military record was not “selfexplanatory.” The court stated, “I have no idea, if somebody

is involved in secret military operations, whether or not their

personnel file . . . would ever reflect those missions.” The

court stated that it needed to hear from “a records custodian

from the National Personnel Records Center or someone else

who is more familiar with military records and decorations

than any of us.” 

The court ruled that the defense would be permitted to

recall Swisher for further cross examination but would not be

permitted to introduce into evidence any of the documents

bearing on his military experience. That is, the court ruled that

the defense would not be permitted to introduce the Tolbert

letter, the Dowling letter, or anything else contained in Swisher’s official military file that had been sent in response to the

court’s subpoena. The court stated: 

The documents which form the basis for the doubt

cast on Swisher’s military record and [his] entitleUNITED STATES v. HINKSON 10123
ment to wear the Purple Heart are extrinsic evidence

probative of a specific incident of untruthfulness.

The court therefore holds that the admission of

these documents is barred by Rule 608(b).

. . . 

Furthermore, the court holds that admission of the

actual documents of impeachment is barred under

Rule 403.

First, the documents have not yet been officially

authenticated; and this process could waste considerable time on tangential issues only indirectly related

to the issues to be resolved at trial and, perhaps, submitted to the jury as early as tomorrow.

Second: The documents themselves are not

entirely conclusive. They are certainly not selfauthenticating. The Government would have to be

allowed to introduce conflicting documents or testimony of military officers to explain them.

The proffered documents state, in summation, that

Swisher’s record does not indicate that he earned any

service record or service medals during his military

duty; however, other documents available to the

court suggest that Swisher might, indeed, have

earned such medals.

. . .

The defense may reference these documents during its cross-examination . . . . 

In sum, the court finds that the questionability of

Swisher’s character for truthfulness may be amply

10124 UNITED STATES v. HINKSON
demonstrated to the jury by re-opening crossexamination and by allowing the defense to reference the impeaching documents during the crossexamination.

. . . .

I will let the defense decide which way they want

to go; either leave it alone or call him.

The next morning, Hinkson’s counsel informed the court that,

given his inability to introduce into evidence the military documents showing that Swisher had lied on the stand about

receiving the Purple Heart and other decorations, he had

decided not to recall Swisher.

The government made several references to Swisher’s military experience during closing arguments to the jury. The

prosecutor began by explaining the significance of Swisher’s

testimony:

The judge will further instruct you that the fourth

sort of circumstance that you can consider to be

strongly corroborative of Mr. Hinkson’s intent to

solicit murder would be the fact that an accused

believed or was aware that the person solicited had

previously committed similar offenses.

Mr. Swisher’s testimony was powerful. He talked

about how Mr. Hinkson understood that Mr. Swisher

had been in the military and had killed a lot of people. He was very impressed by that. 

In fact, according to Mr. Swisher, Mr. Hinkson

asked, “Have you killed somebody?”

And when Mr. Swisher says, “Yes,” Mr. Hinkson’s response is not, “Wow, that must be terrible,”

UNITED STATES v. HINKSON 10125
but it is, “How many people have you killed?” He

was very impressed by that.

The prosecutor stated that “[a]nother reason Mr. Hinkson

liked Joe Swisher and they were friends is Mr. Swisher had

been in the Marine Corps. Mr. Hinkson had served in the

Navy. Joe Swisher told you they talked about their experiences in the Service.” The prosecutor stated later, “Mr.

Swisher, I suggest to you a reasonable juror could find, told

the truth about the solicitation.” At the end of the government’s closing, the prosecutor stated that Hinkson “understood Mr. Swisher had a military record and that he had

served in combat and killed people. It’s the kind of person he

thinks will do such a thing.”

On January 27, 2005, after two days of deliberations, the

jury returned a guilty verdict on the Swisher-related solicitation counts. It acquitted or hung on all other counts.

On March 3, 2005, just over a month later, defense counsel

moved for a new trial under Federal Rule of Criminal Procedure 33. The motion relied on, inter alia, “newly discovered

evidence” that Swisher had lied under oath on the witness

stand and had produced a forged document in court. That evidence consisted of a newly obtained affidavit from Chief

Warrant Officer W.E. Miller, the Marine Corps liaison to the

National Personnel Records Center, and a newly obtained

affidavit from now-retired Colonel W.J. Woodring, Jr., the

Marine Corps officer whose signature appeared on Swisher’s

original Form DD-214, on the purported “replacement DD214,” and on the purported “supporting letter” for the “replacement DD-214.” These documents were precisely what

the district court and the government had said were needed to

prove that Swisher had lied on the stand.

Chief Warrant Officer Miller stated, in an affidavit dated

February 24, 2005, “As part of my duties . . . I have access

to the official United States military records of former mem10126 UNITED STATES v. HINKSON
bers of the USMC which are deposited in the N[ational] P[ersonnel] R[ecords] C[enter] and, among my other

responsibilities, I evaluate the authenticity of information,

records and documents affecting individual Defense Department transfer documents including DD Forms 214.”

Miller concluded that Swisher had never been awarded a

Purple Heart. He wrote that his reasons included the following: 

A. Swisher’s medical records show that he did not

sustain any combat wounds, rather he was

involved in a private motor vehicle accident

near Port Townsend, Washington on 10 February 1957 and was treated at the hospital at

Bremerton, Washington. . . .

B. The DD Form 214 signed by Swisher on 3

August 1957 . . . which is a part of his official

U.S. military record contains a specification that

he was not entitled to VA benefits[.] 

C. Swisher’s official U.S. military record indicates

that he was subject to an Article 115 disciplinary action resulting in demotion from Corporal

to Private First Class on 28 Feb. 56 which

involved disobedience to military law during his

active tour of duty[.]

D. Swisher’s official U.S. military record shows

that rather than being assigned to missions in

post-War Korea (as claimed by Swisher) he was

stationed at Camp Fuji and Yokosuka, Japan

from 4 March to 6 May 1956 with no supporting documentation or information to indicate

that he participated in any classified Marine

Corps expeditionary operation that performed

UNITED STATES v. HINKSON 10127
incursions into Korea during his tour of active

duty. . . .

E. Swisher asserts that the expeditionary missions

he was involved with in Korea were classified

as “Top Secret” operations. The U.S. Marine

Corps did not perform any classified operations

or “Top Secret” operations during Swisher’s

tour of duty.

Miller also concluded that the “replacement DD-214” that

Swisher had presented in court was not an “authentic document.” (Miller referred to this document as “Exhibit C.”) In

addition to the factors enumerated in support of his conclusion that Swisher was not entitled to a Purple Heart, Miller

wrote:

A. Military Rules and Procedures require that a

DD Form 214 can only be issued and retyped at

the Headquarters of the USMC and signed by a

designee of the Commandant of the Marine

Corps who offices at Headquarters. Capt.

Woodring never held such designation.

B. Exhibit C, in box 32 provides: “[t]his document

replaces the previously issued transfer document of 8-3-57.” There are no additional records

in Swisher’s file that support the claim that

Swisher’s original DD Form 214 was replaced;

C. Exhibit C, box 32, provides: “[c]hanges and

additions have been verified by Command.”

Changes or additions in Swisher’s original DD

Form 214 if truly “verified by Command“ would

have resulted in verification documents becoming a part of Swisher’s official U.S. military

record . . . . 

10128 UNITED STATES v. HINKSON
. . .

G. Military policy and procedure which has been

in effect since before the time of Swisher’s

transfer from active duty to the USMC Reserves

on 3 Aug. 57 would have directed the issuance

of a DD Form 215 first, before any replacement

version of Swisher’s original DD Form 214

would have been issued . . . .

H. There is no record of a DD Form 215 ever having been issued for Swisher.

(Emphasis and brackets in original.)

Now-retired (and, to the government’s suprise, still living)

Marine Corps Colonel W.J. Woodring, Jr., in an affidavit

dated February 27, 2005, stated:

2. I spent 35 years 6 months in the United States

Marine Corps. I was a Captain in the Marine

Corps in 1957. I am now retired and I reside in

Southern California.

3. I have reviewed Exhibit A attached which purports to be a copy of a letter addressed to Pfc

Elven Joe Swisher (Swisher) dated 16 Oct 1957.

I did not write or cause Exhibit A to be written.

Below the words Semper Fidelis, there is handwriting that purports to be my signature. I did

not sign Exhibit A. What looks like my signature on Exhibit A is actually the image of my

signature that has somehow been superimposed

upon the letter. Exhibit A is a forgery.

4. I have reviewed Exhibit B attached which purports to be a copy of a “Replacement DD 214”

for Swisher. In box 34b there is handwriting that

UNITED STATES v. HINKSON 10129
purports to be my signature. I did not sign

Exhibit B. What looks like my signature on

Exhibit B is actually the image of my signature

that has somehow been superimposed upon the

letter. Exhibit B is a forgery.

On April 22, 2005, the court denied Hinkson’s motion for

a new trial. Applying the criteria set forth in United States v.

Waggoner, 339 F.3d 915, 919 (9th Cir. 2003), the court gave

several reasons for declining to grant a new trial on the basis

of Hinkson’s newly discovered evidence. First, the court concluded that Hinkson had not been diligent in seeking the evidence he now submitted to the court. Second, the court

concluded that the evidence was not “newly discovered”

because “[t]he substance of both proffered documents is not

new and is generally cumulative of previously available information.” Finally, “[m]ost importantly,” the court concluded

that “the proffered ‘new’ evidence is not material to the issue

at trial, nor would a new trial probably result in an acquittal,

because the evidence is inadmissible.” The court explained

that it had “previously held on the record at trial . . . and now

reiterates, admission of the proffered documents and testimony is still prohibited by Fed. R. Evid. 608(b), which bars

introducing extrinsic evidence of the witness’s past conduct.”

Hinkson was sentenced on June 3, 2005, for his solicitation

convictions as well as for his tax evasion and currency structuring convictions. He received a total of 43 years in prison:

ten years on the tax and structuring charges, ten years on each

of the three solicitation charges, and an additional three years

for having made the solicitations while on pretrial release in

the tax case.

II. Subsequent Indictment and Conviction of Swisher

On July 30, 2007, the government indicted Swisher for

knowingly wearing military decorations to which he was not

entitled, including the Purple Heart, in violation of 18 U.S.C.

10130 UNITED STATES v. HINKSON
§ 704(a); for willfully and knowingly making false representations about his military service in order to obtain benefits to

which he was not entitled, in violation of 18 U.S.C.

§ 1001(a)(2); and for presenting false testimony and a “forged

form DD-214” in order to obtain benefits to which he was not

entitled, in violation of 18 U.S.C. §§ 641 and 642. As the date

of the indictment makes clear, the government indicted

Swisher more than two years after the district court ruled on

Hinkson’s motion for a new trial. On April 11, 2008, Swisher

was convicted on all three counts of the indictment. Because

Swisher’s indictment and conviction did not occur until after

the district court ruled on Hinkson’s motion for a new trial,

the district court obviously could not have considered them in

reaching its decision.

III. Appeal

On appeal to this court, Hinkson challenges the denial of

his motion for a new trial on three grounds. First, Hinkson

argues that the district court erred in precluding him from

introducing into evidence the military documents that would

have shown that Swisher lied about his Purple Heart, about

his other decorations, and about his forged “replacement DD214.” Second, Hinkson argues that the prosecution engaged in

misconduct by referring to Swisher’s military background

during its closing argument after it was clearly on notice of

the contents of Swisher’s official military file. Third, Hinkson

argues that he is entitled to a new trial based on the new evidence presented in his post-trial motion under Rule 33. I

would reach only the first and third arguments. I agree with

both of those arguments and would reverse the district court

based on either of them.

A. Refusal to Admit Impeaching Military Documents into

Evidence

We review for abuse of discretion a district court’s evidentiary rulings, including decisions to admit or exclude

UNITED STATES v. HINKSON 10131
impeachment evidence. United States v. Tran, 568 F.3d 1156,

1162 (9th Cir. 2009); United States v. Geston, 299 F.3d 1130,

1137 (9th Cir. 2002). We must then apply the harmless error

standard. We will reverse an evidentiary ruling for abuse of

discretion “only if such nonconstitutional error more likely

than not affected the verdict.” United States v. Edwards, 235

F.3d 1173, 1178-79 (9th Cir. 2000); see also Fed. R. Crim. P.

52(a) (“Harmless Error. Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”).

Hinkson sought to introduce the Tolbert letter, the Dowling

letter, and the rest of Swisher’s official military file in order

to show that Swisher lied about receiving the Purple Heart

and his other claimed military decorations, and to show that

he had forged his so-called “replacement DD-214” that he had

brandished before the jury. The district court excluded this

evidence based on Federal Rules of Evidence 608(b) and 403.

Rule 608(b) provides: 

Specific instances of the conduct of a witness, for the

purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime

as provided in rule 609, may not be proved by

extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or

untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or

untruthfulness of another witness as to which character the witness being cross-examined has testified.

The district court deemed the documents bearing on Swisher’s

military experience “extrinsic evidence probative of a specific

incident of untruthfulness” and therefore inadmissible under

Rule 608(b). 

10132 UNITED STATES v. HINKSON
The district court erred as a matter of law in holding that

the Tolbert letter, the Dowling letter, and the other documents

in Swisher’s file could be excluded under Rule 608(b). The

2003 Advisory Committee Notes to Rule 608 make clear that

“the absolute prohibition on extrinsic evidence applies only

when the sole reason for proffering that evidence is to attack

or support the witness’ character for truthfulness.” Fed. R.

Evid. 608(b), advisory comm. notes (2003). Hinkson did not

seek to introduce those documents for the sole “purpose of

attacking . . . the witness’ character for truthfulness.” Rather,

Hinkson sought to introduce the documents for the specific

purpose of contradicting in-court testimony by Swisher. Such

evidence is governed by Rule 607, which “permits courts to

admit extrinsic evidence that specific testimony is false,

because contradicted by other evidence.” United States v.

Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999). 

Swisher took the witness stand wearing a Purple Heart

lapel pin, thereby affirmatively stating that he had been

wounded in combat while serving in the United States armed

forces. Rule 801(a) provides, “A ‘statement’ is . . . nonverbal

conduct of a person, if it is intended by the person as an assertion.” Recall that in his opening statement to the jury three

days before, the prosecutor had described Swisher as “a Combat Veteran from Korea during the Korean conflict [who] was

not adverse to . . . violent, dangerous activity.” Particularly

given the prosecutor’s statement, the jury could hardly avoid

understanding Swisher’s wearing of the Purple Heart as “nonverbal conduct . . . intended . . . as an assertion” that he had

been wounded in military combat. The documents Hinkson

sought to introduce would have directly contradicted that

statement, and would have shown Swisher to be a liar.

The district court also erred by refusing to allow Hinkson

to introduce this extrinsic evidence to impeach Swisher based

on Rule 403. Rule 403 provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

UNITED STATES v. HINKSON 10133
danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of

cumulative evidence.

The district court abused its discretion by concluding that it

would be unduly time-consuming and confusing to the jury to

admit the official military documents showing that Swisher

lied about receiving a Purple Heart, and that, when challenged, he lied about having a so-called “replacement DD214.” Although some parts of Swisher’s military record may

have been difficult for a lay jury to understand, other parts

were easy to comprehend. For example, the Dowling letter

was clearly written and unambiguous. It stated simply and

directly that Swisher had not been in combat and had not been

awarded any medals. Other documents in Swisher’s official

military file — which had been sent to the court pursuant to

its subpoena and whose authenticity was not in doubt —

unambiguously showed that Swisher’s “replacement DD-214”

was a forgery. Given Swisher’s crucial role in the government’s case against Hinkson, the time it would have taken to

admit this evidence could hardly have outweighed its probative value.

The district court’s refusal to allow Hinkson to admit this

documentary evidence was not a harmless error. Swisher was

the government’s principal witness on the only counts on

which Hinkson was convicted. The jury would have formed

a significantly different impression of Swisher’s credibility if

Hinkson had been permitted to introduce evidence that

Swisher lied about his military record on the stand. For the

reasons I describe in detail below, this would have called into

serious doubt all of Swisher’s testimony, including his statements describing his interactions with Hinkson.

B. New Evidence Produced in Support of

Motion for New Trial

Hinkson’s motion for a new trial asserted that the Miller

and Woodring affidavits, newly obtained after trial, proved

10134 UNITED STATES v. HINKSON
conclusively that Swisher had presented false testimony and

had presented a forged document during trial. The government no longer disputes that Swisher lied about his military

experience and presented a forged “replacement DD-214.” It

contends, however, that the newly obtained Miller and Woodring affidavits do not warrant a new trial.

We review for abuse of discretion a district court’s denial

of a motion for a new trial based upon newly discovered evidence. See, e.g., United States v. Sarno, 73 F.3d 1470, 1507

(9th Cir. 1995). A district court abuses its discretion when it

makes an error of law, when it rests its decision on clearly

erroneous findings of fact, or when we are left with “a definite

and firm conviction that the district court committed a clear

error of judgment.” Delay v. Gordon, 475 F.3d 1039, 1043

(9th Cir. 2007) (internal quotation marks omitted).

Under United States v. Harrington, 410 F.3d 598 (9th Cir.

2005), a criminal defendant must satisfy a five-part test in

order to prevail on a motion for a new trial:

“(1) [T]he evidence must be newly discovered; (2)

the failure to discover the evidence sooner must not

be the result of a lack of diligence on the defendant’s

part; (3) the evidence must be material to the issues

at trial; (4) the evidence must be neither cumulative

nor merely impeaching; and (5) the evidence must

indicate that a new trial would probably result in

acquittal.” 

Id. at 601 (quoting United States v. Kulczyk, 931 F.2d 542,

548 (9th Cir. 1991)). The district court applied this Harrington test, citing Waggoner, 339 F.3d at 919.

What we today call the Harrington test is sometimes

referred to as the “Berry rule,” named for the nineteenthcentury case from which it derives. See 3 Charles Alan

Wright et al., Federal Practice and Procedure § 557, at 541

UNITED STATES v. HINKSON 10135
(3d ed. 2004) (citing Berry v. State, 10 Ga. 511, 527 (1851)).

Although we ordinarily state the test as comprising five

requirements, we have recognized that requirements (3), (4),

and (5) are duplicative. That is, newly discovered evidence is

“material” when the result of the newly discovered evidence

is that “a new trial would probably result in acquittal,” a condition that is not usually met when the newly discovered evidence is “cumulative [ ]or merely impeaching.” See, e.g.,

United States v. Krasny, 607 F.2d 840, 845 n.3 (9th Cir. 1979)

(noting that the materiality and probability requirements “are

really two means of measuring the same thing”); United

States v. Davila, 428 F.2d 465, 466 (9th Cir. 1970) (per

curiam) (noting that newly discovered impeachment evidence

supports a new trial if “it is likely that the jury would have

reached a different result” in light of the evidence); see also

Wright et al., supra, § 557, at 552.

The character of the defendant’s newly discovered evidence determines how strictly we apply the Harrington probability requirement. Our usual rule is that newly discovered

evidence does not entitle a defendant to a new trial unless the

evidence indicates that it is more probable than not that the

new trial will result in acquittal. This rule applies to most

newly discovered evidence, including newly discovered evidence tending to show that evidence presented at the defendant’s trial was false. See Krasny, 607 F.2d at 842.1

I would conclude that Hinkson has satisfied all five parts of

the Harrington test. To my surprise, the majority concludes

that Hinkson has satisfied none of them. 

1We have sometimes applied a less demanding standard for granting a

new trial where it is known conclusively at the time of the new trial

motion that the evidence presented at trial was false. See Hall v. Dir. of

Corr., 343 F.3d 976 (9th Cir. 2003); Killian v. Poole, 282 F.3d 1204 (9th

Cir. 2002); United States v. Young, 17 F.3d 1201 (9th Cir. 1994). Because

I would hold that Swisher is entitled to a new trial under the Harrington

test, it is unnecessary to apply this test. 

10136 UNITED STATES v. HINKSON
1. Newly Discovered Evidence

Under the first part of the Harrington test, we must determine whether the evidence presented in support of the motion

for a new trial is “newly discovered.” Hinkson’s new trial

motion relied on two new pieces of evidence: (1) the affidavit

from Chief Warrant Officer Miller, the Marine Corps liaison

to the National Personnel Records Center; and (2) the affidavit from Colonel Woodring, the officer whose purported signature appeared on Swisher’s “replacement DD-214” and

“supporting letter.” It is undisputed that neither piece of evidence was known to, or was in the possession of, the defense

until after Hinkson’s trial had concluded. 

The majority concedes that both the Miller and Woodring

affidavits are “newly written” evidence, but it contends that

the affidavits “did not provide any new information that was

not already considered and rejected from evidentiary admission by the court.” Maj. Op. at 14981. In other words, the

majority concludes that the evidence contained in the documents is merely cumulative of evidence that was already

known during trial. That argument is best addressed to the

third Harrington requirement, and I address that argument in

detail below. I respond only briefly here.

The majority’s conclusion would be more persuasive if the

district court had not indicated clearly during trial that, in its

view, the evidence then before it was insufficient to show that

Swisher had lied about his military record. After reading the

half-inch-thick file received on January 21 from the National

Personnel Records Center, which included the Dowling letter,

the district court stated, “It is not at all clear to me what the

truth of the matter is.” The court indicated that the file was

“very difficult to decipher” and not “self-explanatory.” The

court stated that it could not resolve its uncertainty without

“hearing from” a military “records custodian” or similar person. The prosecutor added that what was needed in order to

show the falsity of the “replacement DD-214” was an affidaUNITED STATES v. HINKSON 10137
vit from Colonel Woodring stating that his signature had been

forged.

As I will discuss in more detail below, the newly provided

Miller and Woodring affidavits were precisely the evidence

that the district court and the prosecutor on January 21 had

described as fatally lacking. If the district court had not

explicitly stated that evidence of the sort provided by the Miller and Woodring affidavits was needed to “decipher” Swisher’s file and to determine the truth, the majority’s conclusion

that this evidence is merely cumulative might be understandable. But the district court’s explicit statement that it needed

precisely this evidence makes it is impossible to conclude that

the “substance” of the Miller and Woodring affidavits was not

new.

2. Diligence

Under the second part of the Harrington test, we ask

whether the failure to discover the evidence sooner resulted

from a “lack of diligence on the defendant’s part.” See Kulczyk, 931 F.2d at 548. A court cannot conclude that a defendant

lacks diligence merely because a defense team with unlimited

time and resources might have managed to discover the evidence sooner. Instead, a court must ask whether it was unreasonable for the defense to have failed to discover the evidence

more promptly. “All that is required is ordinary diligence, not

the highest degree of diligence.” 3 Wright et al., supra, § 557,

at 559-60.

The district court concluded that Hinkson had not been sufficiently diligent in discovering the new evidence. It wrote,

“[T]he Court finds that Defendant is unable to establish that

the failure to discover this evidence was not due to his counsel’s lack of diligence. . . . [T]he Court finds that defense

counsel had ample time to investigate Swisher’s record prior

to trial, but was not diligent in pursuing the issue.”

10138 UNITED STATES v. HINKSON
In support of its conclusion that Hinkson had not been diligent, the district court pointed out that Swisher had testified

to receiving “battlefield injuries” from his military service

during an October 11, 2004, deposition in a civil suit involving Swisher and Hinkson. Hinkson was represented in that

suit by Wesley Hoyt, one of the two attorneys representing

him in his criminal case. In further support of its conclusion,

the district court pointed out that Swisher had discussed his

purported war injuries even before the deposition, during his

grand jury testimony on April 16, 2002, and February 10,

2004. 

Swisher’s deposition in the civil case took place just three

months before the start of Hinkson’s criminal trial. That was

the first time Hinkson was put on notice of Swisher’s claimed

“battlefield injuries.”

It is true, as the district court wrote, that Swisher gave

grand jury testimony in 2002 and early 2004. But this meant

only that the government knew about Swisher’s grand jury

testimony, and thus the government was put on notice in 2002

and 2004 of his claimed “battlefield injuries.” As the district

court knew or should have known, precisely because it was

grand jury testimony, that testimony was kept secret from

Hinkson. The government finally turned Swisher’s grand jury

testimony over to Hinkson pursuant to the Jencks Act on January 4, 2005, only one week before trial. 

Thus, the first time Hinkson was put on notice of Swisher’s

claimed battlefield injuries was on October 11, 2004. On January 14, 2005, when Hinkson’s counsel sought to reopen his

cross examination of Swisher in order to question him about

the Tolbert letter, counsel stated to the court, “For quite sometime [sic], we have been trying to dig into his military history

because we don’t believe it’s accurate.” Then, after Swisher

pulled the “replacement DD-214” out of his pocket, Hinkson’s counsel stated at the sidebar that the defense had “been

trying to get Mr. Swisher’s military records for about ninety

UNITED STATES v. HINKSON 10139
days; and we have very little control over when that happens.”

(Emphasis added.) January 14 is ninety-five days after October 11.

Thus, we know from the uncontradicted trial transcript that

Hinkson’s counsel tried to obtain Swisher’s military record

immediately after his October 11 deposition. We also know

that government authorities, over whom defense counsel had

“very little control,” were slow to respond. The government

did not provide anything to Hinkson until it provided the Tolbert letter on the very day of Swisher’s testimony. The government can hardly claim that Hinkson was not diligent when

his counsel sought the information immediately after Swisher’s October 11 deposition, and it was the government that

took ninety days to respond. 

In my view, Hinkson’s counsel were diligent in looking for

evidence that could be used to impeach Swisher. Indeed, they

were successful in finding such evidence. As a result of their

efforts, defense counsel received the Tolbert letter from the

National Personnel Records Center while Swisher was still on

the stand. The letter recounted that Swisher did not enter

active duty until 1954. It stated that “Swisher’s Marine Corps

record has been carefully examined by the Military Awards

Branch . . . , and that office has stated that his record fails to

show that he was ever recommended for, or awarded any personal decorations.”

Hinkson’s counsel reasonably viewed the Tolbert letter as

exactly the sort of impeaching evidence it had been seeking.

Counsel hoped that Swisher, when confronted with the letter,

would be forced to admit that he was not the decorated combat veteran he purported to be. Counsel could hardly have

anticipated that Swisher, after being shown the letter, would

pull from his pocket a forged document purporting to provide

a superseding account of his military service. Until that

moment, there was little reason for the defense to suspect the

10140 UNITED STATES v. HINKSON
existence of Swisher’s “replacement DD-214,” let alone to

suspect that the document was a forgery.

After learning of the “replacement DD-214” on Friday,

January 14, the defense was quick to investigate its authenticity. On Wednesday, January 19, following a long holiday

weekend, defense counsel informed the court that they had

learned that Swisher had recorded two different DD-214

forms with Idaho County, and that the earlier-recorded DD214 was “devoid of any . . . honors and medals.” Counsel also

stated that they had spoken to staff at the National Personnel

Records Center who stated that the Center stood by the conclusions of the Tolbert letter but would not release additional

documents about Swisher without a subpoena from a judge.

The court agreed to subpoena Swisher’s military file, which

arrived two days later, on Friday, January 21. 

The court kept Swisher’s military file to review over the

weekend, and then disclosed it to counsel on Monday, January 24, the last full day of testimony before closing arguments. The court ruled that it would allow the defense to

recall Swisher for further cross examination, but would not

allow the defense to introduce into evidence any of the military documents obtained. The court stated further that it did

not want to conduct a mini-trial during which the government

would put experts on the stand to explain the documents.

Once Hinkson’s trial concluded, the defense was diligent in

obtaining the evidence from Woodring and Miller. It filed its

motion for a new trial just over one month after the conclusion of trial. See Fed. R. Crim. P. 33(b)(1) (providing that

motions for a new trial “grounded on newly discovered evidence must be filed within 3 years after the verdict” (emphasis added)).

The government had its own duty to investigate Swisher’s

military record, having been alerted to “the real possibility of

false testimony.” Commonwealth of N. Marina Islands v.

Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001). Because the govUNITED STATES v. HINKSON 10141
ernment had participated in the grand jury proceedings, it

knew long before Hinkson’s counsel that Swisher had given

potentially false testimony about his military experience.

Swisher’s first grand jury testimony was in April 2002. This

was two years and three months before Swisher’s deposition,

and two years and sixth months before Hinkson’s trial. During

this period, if it had wished to do so, the government could

easily have obtained Swisher’s official military file to determine whether its star witness was telling the truth. But so far

as the record shows, the government made no effort to do so.

The government now argues that Hinkson was not diligent

in investigating Swisher’s military record. But for two and a

half years, it was the government that made virtually no effort

to investigate the trustworthiness of its star witness. Further,

it was the government that took ninety days to respond to

Hinkson’s request immediately after Swisher’s October 11

deposition for information about his military record. Yet the

government now has the nerve to argue that it was Hinkson

who was not diligent. It is almost incomprehensible to me that

the government would make that argument. It is entirely

incomprehensible that the majority would accept it.

3. Material to the Issues at Trial

The third part of the Harrington test requires that the newly

discovered evidence be “material to the issues at trial.” In the

context of a new trial motion under Harrington, materiality

has a special meaning. Materiality under Harrington does not

require that the evidence in question would have been material at the original trial. Rather, materiality under Harrington

requires that the evidence in question will materially alter the

result on retrial. In many cases, there will be little or no practical difference. See, e.g., United States v. George, 420 F.3d

991, 1001 (9th Cir. 2005) (analyzing materiality in terms of

the first trial). But the Harrington test is clearly framed in

terms of what will happen on retrial rather than what happened at the original trial. See Harrington, 410 F.3d at 601

10142 UNITED STATES v. HINKSON
(“[T]he evidence must indicate that a new trial would probably result in acquittal.”); see also Krasny, 607 F.2d at 844

(“Yet, we have always required a showing that the new evidence would ‘probably’ result in an acquittal upon a new

trial.”); id. at 845 n.3 (explaining that materiality and probability “are really two means of measuring the same thing”).

As I discuss below, in addressing Harrington’s fifth requirement, I conclude that the newly discovered evidence of

Swisher’s fabrications makes it probable that a new trial will

result in acquittal. Thus, I also conclude that the new evidence

is material under Harrington.

The majority relies on evidentiary rulings made by the district court. It notes that the district court held that documents

showing that Swisher lied about his military record were inadmissible under Federal Rule of Evidence 608(b). The majority

further notes that the district court excluded the evidence

under Rule 403. As discussed above, the district court’s evidentiary ruling under Rule 608(b) was wrong as a matter of

law, and its ruling under Rule 403 was an abuse of discretion.

The majority does not merely hold (erroneously) that the evidence was correctly excluded by the district court. It goes further, suggesting that because the district court properly

excluded the impeaching documents from evidence under

Rules 608(b) and 403, these documents could have no material effect on retrial. Even if this were true, this is irrelevant

under Harrington. The materiality test under Harrington is

not whether the newly discovered evidence — the Miller and

Woodring affidavits — would have been admissible during

Hinkson’s first trial. The test is whether the newly discovered

evidence would probably result in acquittal on retrial.

As I discuss in detail in part five of the Harrington test, I

conclude that the Miller and Woodring affidavits would probably result in acquittal on retrial. The affidavits would not

have to be admitted into evidence to have this effect. The government has now conceded that Swisher lied about his military record, that he did not engage in combat, that he did not

UNITED STATES v. HINKSON 10143
earn the Purple Heart he wore on the witness stand, that he

did not earn any of the other military records to which he

claimed he was entitled, and that he brandished a forged “replacement DD-214” in front of the jury. Both sides now know

the truth. If Swisher takes the stand and is asked about his

military record, and if he is asked whether he lied under oath

about that record at the first trial, the truth will necessarily

come out. There are two alternatives. If Swisher tells the

truth, the truth will come out through his testimony. If

Swisher lies, the government will have a professional obligation to correct the record and to disown the testimony of its

star witness.

4. Neither Cumulative nor Merely Impeaching

The fourth part of the Harrington test requires that the new

evidence be “neither cumulative nor merely impeaching.”

a. Cumulative

The district court concluded that “[t]he substance of both

proffered documents is not new and is generally cumulative

of previously available information.” The “previously available information” to which the court referred consists of the

documents that came to light at three different points during

the trial: first, the Tolbert letter used by defense counsel to

cross examine Swisher on January 14; second, the Dowling

letter, which the prosecution gave to the court on the morning

of January 21 and which the court also received later that day

as part of Swisher’s official military file; and third, the

remainder of Swisher’s official military file, which the court

received on the afternoon of January 21. 

During trial, the district court concluded that these documents established neither that Swisher’s testimony was false

nor that the “replacement DD-214” was fraudulent. On Monday, January 24, after reviewing Swisher’s military file,

including the Dowling letter, over the weekend, the court told

10144 UNITED STATES v. HINKSON
counsel outside the presence of the jury that it found the file

“very difficult to decipher,” and stated that “the truth of the

matter” was “not at all clear.” The court told counsel that the

documents in the file were “neither self-authenticating nor

self-explanatory” and did “not conclusively decide the issue.”

The court concluded that it was “not at all convinced” that it

had enough evidence to “resolve the question of whether or

not the document that Mr. Swisher pulled out of his pocket is

false or not.” 

The district court stated that it remained uncertain about the

truthfulness of Swisher’s testimony and the authenticity of the

“replacement DD-214,” despite the fact that Swisher’s military file was a government record that the court itself had subpoenaed, and despite the fact that the file contained the

Dowling letter. The Dowling letter, written by an officer in

the Headquarters of the U.S. Marine Corps, stated in plain

language that Swisher had not earned any personal military

commendations and that the “replacement DD-214” was a

forgery. Another factfinder may have found this evidence sufficient to show that Swisher was a forger and a liar. But the

district court was explicit in saying that it found that the evidence then before it was inconclusive.

The district court stated that “the only way” to resolve the

uncertainty surrounding the “silent file” would be to hear

from “a records custodian from the National Personnel

Records Center or someone who is more familiar with military records and decorations than any of us.” The prosecutor

agreed with the court’s assessment and added:

What [the defense] would really have to prove, if

this were to be resolved, is that . . . the substitute

DD-214 signed by Captain Woodring, in, I believe,

October ‘57 — that . . . the signature of Captain

Woodring was forged; and I would suggest that

probably would resolve whether it’s correct or not.

UNITED STATES v. HINKSON 10145
How you would prove that something that was

signed in 1957 — I doubt very much Mr. Woodring

is still with us, but I don’t know.

Precisely the additional evidence the court said was lacking

was supplied by Hinkson in his motion for a new trial in the

form of an affidavit from Chief Warrant Officer Miller. Miller

is the U.S. Marine Corps Liaison Officer to the National Personnel Records Center. His job is to “evaluate the authenticity

of information, records and documents affecting individual

Defense Department transfer documents including DD Forms

214.” Miller concluded, after a thorough investigation, that

the replacement DD-214 was a forgery and that Swisher had

not earned a Purple Heart or any other personal commendation.

Similarly, precisely the additional evidence the prosecutor

said was lacking was supplied in the form of an affidavit from

the now-retired Colonel Woodring. As it turned out, Colonel

Woodring is (to use the prosecutor’s words) “still with us.”

Colonel Woodring stated unequivocally in his affidavit that

his signatures on both the purported 1957 letter to Swisher

and the replacement DD-214 were forgeries.

In sum, the court stated at trial that the evidence before it

was insufficient to allow it to determine the truth or falsity of

Swisher’s evidence. Defense counsel then presented to the

court, in support of the motion for a new trial, precisely the

additional evidence the court and the prosecutor said was

needed to resolve the uncertainty. In this circumstance, this

new evidence cannot possibly be considered cumulative.

The majority concludes that the Miller and Woodring affidavits are cumulative because “Hinkson’s attorney had

already proffered evidence that such ‘Replacement DD-214’

form was a forgery, in the form of the Tolbert and Dowling

letters.” Maj. Op. at 14983-84. The majority would be on

firmer ground in so concluding if the district court had agreed

10146 UNITED STATES v. HINKSON
with this statement. However, the district court was very clear

in saying precisely the opposite of what the majority now

says. As I have just explained, the district court concluded

that Swisher’s entire personnel file, including the Tolbert and

Dowling letters, was insufficient to “establish that the replacement DD-214 was a forgery and that Swisher had lied about

receiving military awards.” Given the district court’s view of

the evidence then available, it is impossible to conclude that

the Miller and Woodring affidavits are cumulative.

b. Merely Impeaching

Impeaching evidence may properly support a motion for a

new trial under Rule 33. Indeed, we have expressly rejected

the proposition that “impeachment evidence . . . is never sufficient to warrant a new trial under Fed. R. Crim. P. 33.” United

States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992) (emphasis

in original); see also United States v. Wallach, 935 F.2d 445

(2d Cir. 1991), as amended (concluding that new evidence

impeaching the government’s central witness was sufficiently

powerful to require a new trial); United States v. Taglia, 922

F.2d 413, 415 (7th Cir. 1991) (explaining that the prohibition

on using impeachment evidence to secure a new trial should

not be “taken at face value”); Balestreri v. United States, 224

F.2d 915, 917 (9th Cir. 1955) (“To deny in every case a

motion for a new trial on the ground of newly discovered evidence for the sole reason that the evidence was ‘merely

impeachment’ might often lead to injustice.”).

We recognized in Davis that enforcing a per se prohibition

on impeachment evidence as the basis for a new trial would

be inconsistent with the spirit of Rule 33, which “permits the

granting of a new trial motion ‘if required in the interest of

justice.’ ” Davis, 960 F.2d at 825. A per se prohibition would

also be inconsistent with our longstanding refusal to draw a

“categorical distinction between types of evidence.” Taglia,

922 F.2d at 415; see also Giglio v. United States, 405 U.S.

150, 154-55 (1972) (refusing to distinguish between exculpaUNITED STATES v. HINKSON 10147
tory and impeachment evidence in the Brady context); Napue

v. Illinois, 360 U.S. 264, 269 (1959) (refusing to distinguish

between exculpatory and impeachment evidence in cases

involving prosecutorial misconduct). Accordingly, we recognized in Davis that sometimes, 

newly-discovered impeachment evidence may be so

powerful that, if it were to be believed by the trier of

fact, it could render the witness’ testimony totally

incredible. In such a case, if the witness’ testimony

were uncorroborated and provided the only evidence

of an essential element of the government’s case, the

impeachment evidence would be ‘material’ under

[the Harrington test]. 

960 F.2d at 825; see also Taglia, 922 F.2d at 415 (holding

that a new trial would be warranted under Rule 33 if it were

discovered after trial that the government’s star witness was

“utterly unworthy of being believed because he had lied consistently in a string of previous cases”); 3 Wright et al., supra,

§ 557, at 560, 563 (noting that impeachment evidence is usually “not sufficient to justify a new trial,” but that this is not

an “invariable rule,” and “in flagrant cases it may suffice”).

In denying Hinkson’s motion for a new trial, the district

court wrote that “the proffered evidence [i.e., the Miller and

Woodring affidavits] is impeachment evidence and so is not

a valid basis for a new trial.” It is apparent from this statement

that the district court believed mistakenly that, as a matter of

law, impeachment evidence may never provide the basis for

a new trial. As just discussed, our cases do not so hold. 

The majority concludes that the Miller and Woodring affidavits are impeaching and therefore cannot satisfy the fourth

requirement of Harrington. It writes, “[E]videntiary admission of the extrinsic Miller and Woodring affidavits would

serve no purpose other than to impeach Swisher’s testimony

as to his military record rather than his testimony as to Hink10148 UNITED STATES v. HINKSON
son’s solicitations.” Maj. Op. at 14984. The majority mistakes

the nature of the Miller and Woodring affidavits. They are

powerful enough to permit a jury to conclude that Swisher’s

testimony inculpating Hinkson — the only uncorroborated

testimony implicating Hinkson on the three counts for which

the jury convicted him — was “totally incredible.”

5. Probability of Acquittal on Retrial

The fifth Harrington requirement is that “the new evidence

must indicate that a new trial probably would result in acquittal.” I conclude that this new evidence would probably result

in acquittal at retrial. I so conclude after comparing the evidence presented at trial on the three solicitation counts on

which Hinkson was acquitted, and the three counts on which

he was convicted.

I apologize for the length of the discussion that follows, but

it is unavoidable. A judge who is asked to decide whether “a

new trial probably would result in acquittal” necessarily must

examine carefully the evidence that was presented in the first

trial, and, as a corollary, the evidence that is likely to be presented in the second trial. A judge ruling on a new trial

motion may choose not to describe that evidence in detail, but

he or she must necessarily consider it. Given the nature and

importance of this case, I describe it in detail so that the

reader may understand the basis for my conclusion.

Three solicitations to murder were charged in Counts 1

through 3 of the indictment. In these counts, the government

charged that Hinkson had solicited James Harding “in or

about January 2003” to murder Cook (Count 1), Hines (Count

2), and Lodge (Count 3). The jury acquitted Hinkson on all

three of these counts.

Three more solicitations were charged in Counts 4 through

6. In these counts, the government charged that Hinkson had

solicited James Harding “on or about March 17, 2003” to

UNITED STATES v. HINKSON 10149
murder Cook (Count 4), Hines (Count 5), and Lodge (Count

6). The jury deadlocked on these three counts.

Three more solicitations were charged in Counts 7 through

9. In these counts, the government charged that Hinkson had

solicited Swisher “between about December 2002 and February 2003” to murder Cook (Count 7), Hines (Count 8), and

Lodge (Count 9). The jury returned a verdict of guilty on

these counts.

Finally, two threats to commit murder were charged in

Counts 10 and 11. In these counts, the government charged

that Hinkson made statements to Anne Bates in which he

threatened to murder the children of Cook (Count 10) and the

children of Hines (Count 11). The jury acquitted Hinkson on

these counts.

The issue at trial was not whether Hinkson asked Harding

and Swisher to kill Cook, Hines, and Lodge. The evidence

was persuasive that he had done so. The issue was whether

Hinkson had been serious in his requests. That is, the issue

was whether he had an actual “intent” that Cook, Hines, and

Lodge be killed, which was required under 18 U.S.C.

§ 373(a). Only if Hinkson was serious in soliciting the murder

of Cook, Hines, and Lodge — that is, only if he had an actual

intent that they be killed — did he commit a criminal offense.

The jury acquitted Hinkson outright on three of the nine

counts charging solicitation in violation of § 373(a). On these

three counts, the jury concluded that the government had not

shown that Hinkson had been serious in soliciting murder on

that occasion. The jury could not make up its mind on three

more of the counts, unable to conclude unanimously that

Hinkson had been serious in soliciting murder on that occasion. The jury was able to conclude unanimously only on

three counts — Counts 7-9, the counts involving Swisher —

that Hinkson had been serious in soliciting murder. To assess

the likelihood of an acquittal on retrial on the three Swisher10150 UNITED STATES v. HINKSON
related counts (Counts 7-9), I compare the evidence on the

three Harding-related counts (Counts 1-3) on which Hinkson

was granted an outright acquittal.

More than half of the trial testimony provided background

evidence for all of the counts charged in the indictment. This

background evidence showed that Hinkson owned and operated a lucrative business called WaterOz in Grangeville, a

small town in Idaho. WaterOz bottled water into which had

been dissolved, by a secret process supposedly invented by

Hinkson, very small particles of minerals such as gold and

platinum. According to Hinkson, the water has marvelous

medicinal properties. Hinkson advertised and sold his magic

water over the Internet.

Hinkson did not pay federal income tax, on the asserted

ground that he was not legally obligated to do so. (In a separate appeal, our three-judge panel affirmed Hinkson’s criminal conviction on his tax and currency structuring offenses.)

Hinkson was unstable and paranoid. He was continually worried that people, including government officials and his own

employees, were trying to take WaterOz from him. After

Cook and Hines participated in an early-morning raid of his

home in November 2002, Hinkson repeatedly claimed that

they had tried to murder him. Hinkson also repeatedly

claimed that an attorney named Dennis Albers, who previously had represented a plaintiff in a successful suit against

him, was trying to murder him.

Hinkson developed grudges easily and held them tenaciously. He had a special dislike for employees of the federal

government. Sometimes his talk was somewhat comical. For

example, he talked to James Harding about a “fed-a-pult” and

a “fed-guard.” According to Harding, a “fed-a-pult” was a

device to catapult federal agents into a canyon or into an

oncoming train. A “fed-guard” was something to put “on the

front of your car like a cattle guard.” Sometimes his talk was

not comical at all. For example, the evidence at trial showed

UNITED STATES v. HINKSON 10151
that Hinkson asked multiple people, on multiple occasions, to

kill Cook, Hines, and Lodge, and that Hinkson repeatedly said

he wanted to torture and kill people, including Cook’s and

Hines’s children.

a. Evidence Supporting Counts 1-3

Counts 1 through 3 charged that in January 2003 Hinkson

solicited James Harding to kill Cook, Hines, and Lodge. As

noted above, the jury acquitted Hinkson on these counts.

The evidence supporting Counts 1 through 3 was as follows. In November or December 2002, Harding and Anne

Bates met Hinkson at a “health forum” in Southern California.

At that time, Harding was a restaurant manager in Southern

California. Previously Harding had been a bodyguard and had

worked “in the entertainment field.” He had most recently

“hosted” radio shows on “the paranormal”; before that his

radio work had been “comedy shows, morning shows, afternoon drive, entertainment.” His last radio work was three

years before he testified.

After the “health forum,” Hinkson, Harding, Bates, and

several others went out to eat. During the meal, Hinkson

offered Bates a job at WaterOz. Harding and Bates drove to

Grangeville at the beginning of January 2003 and stayed at

Hinkson’s house.

On the second night of Harding and Bates’s stay, Harding

was sitting at the kitchen table. Bates was nearby. Harding

testified that Hinkson handed him “a large sum of money.”

Harding responded with a crude joke: “Who do I have to

blow?” According to Harding, Hinkson responded “something like, ‘It’s not who you have to blow but who you have

to kill.’ ” Harding testified, “I could make this much money

killing [Cook, Hines, and Lodge]. He had also a wad with him

of some sort; and that was supposed to be another $10,000.

There was a $10,000 flat fee, and this was a wad of $10,000.”

10152 UNITED STATES v. HINKSON
Harding testified that Hinkson then “pulled back . . . and it

became a joke.” But, Harding testified, “I assumed that I was

being tested.” He testified further, “And when the $10,000

came up, I thought this was his test.” 

Bates, who was also in the kitchen, testified about the episode. 

We were at the table in the kitchen . . . . He was saying something along the lines that he would like

some of these people dead, and he had a lot of

money that he produced from somewhere. And I

don’t know if — maybe in a joking manner, he

offered it to J.C. [i.e., Harding] and said, you know,

“Whoever does this, this is theirs,” something along

those lines from what I can remember. 

The prosecutor asked: “Did he say it was a joke?” She

answered, “He did not say it was a joke, no.” 

Bates remained in Hinkson’s house in Grangeville, but

Harding went back to Southern California to bring Bates’s

things back in a U-Haul truck. On Harding’s return he again

stayed in Hinkson’s house, “probably” during the second

week of January. Harding testified as follows:

Q. Did you have any further discussions with Mr.

Hinkson where he talked about these three feds, federal officials?

A. Every time I talked to Dave. That was on his

mind every time when we talked on every occasion.

Q. Did that happen on the second occasion?

A. Absolutely, yes.

. . .

UNITED STATES v. HINKSON 10153
Q. What did he say?

A. That they need to die; they are demons; they need

to be tortured. It was sick stuff that I don’t like coming out of my mouth. . . . I hate them; they are

demons; they need to die; they need to be killed; I

have got people working on that. You never know if

he is kidding or serious. I want their throats cut; I

want them tortured; I want them taken out and shot

in the knee caps and told who is having it done and

why it’s being done.

. . .

Q. Did he say how he wanted Agent Hines killed

or harmed?

. . .

A. No. The second visit . . . it wasn’t specific. It was

just malicious rhetoric, like I’m saying. He would be

killed, executed. Dave becomes a madman when he

talks about it. He will, literally, get very angry. It’s

anything you can think of that is wild. It grew and

grew each time.

During this second visit, Hinkson asked Harding to get

ammunition for guns that Hinkson kept in the house. Harding

testified that Hinkson did not seem to know much about guns,

and that he was very interested in what Harding knew about

them: “[W]e talked about my knowledge of guns and that I

grew up around guns and shotguns. He wanted to know how

extensive my background was, the basics of how I got into it

and why I was into it.” Harding testified that he had worked

as a bodyguard, and that Hinkson knew him through a friend

who was also a bodyguard:

Q. How do you know he knew you through another

bodyguard?

10154 UNITED STATES v. HINKSON
A. They were good friends. They were close friends.

Q. Who is that?

A. Mark Glover . . . . Him and David — I don’t

know how — are very close friends. And I know

Mark through doing security work, bodyguarding.

. . .

Q. Have you worked as a bodyguard?

A. Yes.

Q. Have you worked with Mr. Glover?

A. Yes.

Harding became very friendly with Hinkson and frequently

stayed at his house in Grangeville on the weekends. During

those visits, Hinkson repeatedly discussed killing Cook,

Hines, and Lodge.

Q. On the occasions that you go back up to

Grangeville, would you see Mr. Hinkson?

A. Yes.

Q. Would you talk to him on the same subject matters of the three federal officers?

A. Extensively.

Q. Did he mention these things about killing federal

officers more than once?

A. Every time we spoke, yes.

UNITED STATES v. HINKSON 10155
Q. How many times?

A. Fifty. . . .

Q. Did there come a time when he also offered you

money?

A. Yes.

Q. In relationship to when you first came to

Grangeville, that first trip in early January, when

would be the second time he offered you money?

A. A couple of weeks, maybe.

The second time Hinkson offered Harding money, the two

men were driving to the bank. Harding testified that Hinkson

had $10,000 with him. 

Q. What did he say . . . ? 

A. Just leading. You could use the cash. Do you

need cash? Do you need money. You could use this

extra money. Think about it. I never knew if he was

serious or kidding. He always talked about it and

said it; and it was always leading, like I was supposed to bite.

Harding eventually became convinced that Hinkson had

been serious in soliciting him to kill Cook, Hines, and Lodge.

When Hinkson solicited him again in March of 2003, Harding

contacted the F.B.I. He spoke to Nancy Cook, telling her,

“Somebody is going to make an attempt on your life, I

believe, if I don’t make this phone call.” The F.B.I. arranged

for Harding to go back to Hinkson’s house with a recording

device concealed on his body. Possibly because Hinkson suspected the existence of the device, Hinkson said nothing

incriminating on that occasion.

10156 UNITED STATES v. HINKSON
b. Evidence Supporting Counts 7 through 9

Counts 7 through 9 charged that between December 2002

and February 2003, Hinkson solicited Swisher to kill Cook,

Hines, and Lodge. As noted above, the jury convicted Hinkson on these counts.

I have already described much of the evidence supporting

Counts 7 through 9. I recount it here in more detail to facilitate a meaningful comparison to the evidence supporting

Counts 1 through 3. Swisher took the stand wearing a Purple

Heart pin on his lapel. On direct, he was folksy and garrulous:

Q. Mr. Swisher, how old of a man are you?

A. I turned 68 yesterday.

Q. You live in Idaho?

A. Yes, I do.

Q. For how long?

A. My gosh. Over thirty years.

. . .

Q. How did you have an interest in mining?

A. Well, I have an old friend, who is now dead —

bless his soul — and he was one of the — he was the

epitome of an Idaho range rider till the day he died.

He carried an old, single-action Colt .45 and rode the

range in the back country.

Q. My question is: How did you manage to switch

careers [to mining]? 

UNITED STATES v. HINKSON 10157
A. I’m getting to that, counselor. 

Swisher testified that he had expertise in “assaying,” and

testified at some length about his work for WaterOz testing

the concentration of minerals dissolved in the water. Then the

prosecutor asked him about his military background, and

Hinkson’s interest in that background: 

Q. Have you ever served in the Armed Forces, Mr.

Swisher?

A. Yes.

Q. Did Mr. Hinkson ever ask you about your service

in the Armed Forces?

A. Yes.

Q. What branch did you serve in?

A. United States Marine Corps.

Q. Did you ever discuss that with Mr. Hinkson?

A. Yes.

Q. And what was the nature of your discussion with

him?

A. As I recall, Mr. Hinkson stated he had been in the

Navy. I indicated I had been in the Marine Corps. He

asked if I had served in any combat situations. I . . .

told him, “Yes.”

Q. What else did he ask you about combat situations?

A. He asked if I had ever killed anyone.

10158 UNITED STATES v. HINKSON
Q. What did you say?

A. I told him, “Yes.” He asked, “How many?” And

I told him, “Too many.”

Q. Was that one conversation or several?

A. It may have happened over a period of time.

Q. What period of time?

A. Oh, probably off and on throughout the year

2001.

Swisher testified that Hinkson knew that he was an expert

with firearms:

Q. Did you ever claim to Mr. Hinkson that you had

proficiency with firearms?

A. I believe he knew that I was an expert rifleman,

pistolman.

Q. How did he know that?

. . .

A. I probably told him, and he observed my shooting.

Q. What was the occasion that you went shooting

with him?

A. I believe it was probably in December, sometime

in December of 2002, that he had a gentleman from

. . . Ukraine, visiting. . . . He said we were going to

meet out at an employee’s who lived in the country,

UNITED STATES v. HINKSON 10159
Mr. Rich Bellon. . . . [W]e shot during the course of

the day.

Q. Who did?

A. Myself, Mr. Hinkson, and the Russian gentleman.

. . .

Q. What did you bring?

A. I brought a .22 Henry lever-action rifle and .32

semi-automatic Browning pistol, and a .45 auto.

Q. How was your shooting?

A. I always hit what I aim at.

Q. How was Mr. Hinkson’s shooting?

A. Not terribly good.

Q. What were you shooting at?

A. Well, we shot some trap with a shotgun. I only

shot maybe a half dozen times because I recently had

a pacemaker installed; and a shotgun, a twelve-gauge

particularly, kind of jars you around a little. I

decided I would quit in due time, but I hit my targets. As I recall, I don’t believe David hit any of his.

Swisher described their “trap shooting” as follows: 

The person who wasn’t shooting would throw the

clay pigeons for the others. You have a springloaded hand unit that will kick them out, I expect,

thirty, forty yards without any problem at all, air10160 UNITED STATES v. HINKSON
borne. . . . And the challenge is to hit the airborne

target when it’s across from you.

Swisher testified that Hinkson was very angry at Dennis

Albers, whom Swisher also disliked. Swisher testified that

sometime shortly after April 2002 Hinkson told him “in private” that he wanted Albers and his family members tortured

and killed:

Q. What was it that Mr. Hinkson said?

A. Well, he started off by talking about how he

would like to have Mr. Albers and his family, particularly his wife, Margaret, tortured and killed. And he

went into quite a description of the torture.

Q. And what was that?

A. He would — he said he would like to see them

stripped, bound, and gagged, and then burned with

cigarettes or cigars. And then while Albers was

down on his knees observing this occurring to his

wife and any other family members that might be

present, he wanted to have a plastic bag put over her

head so that she would suffocate to death in front of

him, along with the other family members. Then he

wanted that procedure repeated on Mr. Albers, himself.

Q. Did he want you to do something in that regard?

A. When he finished describing what he wanted

done, then he offered me $10,000 a head to do it.

Q. What was his demeanor like when he was telling

you these things?

A. He was cool and calm at that time.

UNITED STATES v. HINKSON 10161
Q. What was your response to Mr. Hinkson?

A. I told him he was out of his mind and he needed

to knock that kind of BS off, and I didn’t even think

about it.

Q. How did he respond to that?

A. He just smiled and then didn’t reply and changed

the subject.

Swisher testified that he had a further conversation “in

Hinkson’s trailer” in July or August of 2002:

Q. What did Mr. Hinkson say about how he felt

about Nancy Cook and Steve Hines?

A. He wanted them treated in the same fashion as he

had initially described for Mr. Albers and his family

. . . . [H]e asked if I remembered the offer he made

regarding Mr. Albers and his family. And I said that,

of course, I did. And he said he wanted that done,

basically, with Ms. Cook and her family and Mr.

Hines and his family. And I told him, again, that he

was out of his mind. And I, also, went into a little bit

of a dissertation because David was a friend at that

time. And he said, “Well, you know, I know you’re

used to it. I mean, you have killed people.” I said,

“Yes, I have killed people in defense of my life and

others; but what you are talking about is murder, and

there is a significant difference here. And you need

to get it out of your head because, if you continue

talking that way, it will get you in trouble. And if

you continue talking this way and I think you are

serious about this, I will have to report it to the

authorities.”

Q. How did he respond to that?

10162 UNITED STATES v. HINKSON
A. Well, he got his smile again; and then he changed

the subject.

Swisher testified that after Cook and Hines arrested Hinkson in a raid on his house in November 2002, his hostility

toward them intensified. Swisher testified, further, that Hinkson had a third conversation in which Judge Lodge was added

to the list of intended victims:

A. [I]n January of ‘03, he approached me again[,]

went through the names of the people that had

offended him, and added a federal judge by the name

of Lodge to that list. And I, essentially, dropped the

hammer at that point on David.

Q. Let me first ask what he asked you to do regarding those people?

A. He wanted them all treated the way that the initial

offer regarding Albers and his family had been handled.

Q. Were you to receive anything in return for doing

that?

A. At least $10,000 a head. And I made a mental

note that, with all of the people he named at that

time, we were well over $100,000.

. . .

Q. Did the $10,000 offer include Nancy Cook and

Steve Hines?

A. Oh, yes.

Q. Did it include Mr. Albers?

UNITED STATES v. HINKSON 10163
A. Yes.

Q. Did it include the children of those people?

A. Yes.

Q. What did he want done with the children of those

people?

A. Treated in the same fashion.

Q. How?

A. Tortured and killed.

Q. Now, you mentioned, this time, you reacted in a

different fashion?

A. Yes, I did. I’m afraid I became a bit hostile,

myself, at that point in time.

Q. What did you say?

. . .

A. I told him, regarding these matters of trying to kill

people or having me murder them for him and so on,

that I never wanted to hear that again and to fuck off.

And he left.

Q. What was his demeanor like when he was asking

you to do this?

A. He was almost in a pleading fashion that last

time. He was telling me how harassed he had been

and how they had hurt him and they were out to not

just get him but to kill him, too, and he just had to

10164 UNITED STATES v. HINKSON
have this done; and as his best friend, as he put it at

that time, he felt I should do it.

Swisher testified that sometime in the spring or summer of

2003, he finally contacted a law enforcement official. However, he was unsure about the date on which he did so, and

he was unforthcoming about the details of what he told law

enforcement officials:

Q. When did you contact anyone in legal authority

regarding Mr. Hinkson?

A. Oh, I think it was probably just before he was rearrested in ‘03. I’m not quite sure of the date there.

Q. Are you talking about spring or summer ‘03 or

what?

A. No. It would have probably been getting close to

summer there. Spring, summer, somewhere through

there. Sometime after April, I’m thinking.

Q. All right.

A. I might be wrong.

Q. And who did you contact?

A. I contacted the Idaho County Assistant Prosecutor

from Grangeville.

Q. Now, is he a State Prosecutor, as opposed to a

Federal Prosecutor?

A. Yes. That’s correct.

Q. And did you express some concern to him?

UNITED STATES v. HINKSON 10165
A. I did.

Q. Was it regarding Mr. Hinkson?

A. Yes.

Q. Thereafter, were you contacted by the FBI?

A. Yes.

Q. Who contacted you?

A. Mr. Will Long.

Q. That’s the person here at the table?

A. Correct, sitting right there.

THE COURT: For the record, the witness has identified Special Agent Long.

[THE PROSECUTOR]: Thank you, Your Honor. I

have no further questions on direct, Your Honor.

The government’s direct examination of Swisher filled

forty-three pages of transcript. Cross examination, not including Swisher’s testimony about the Purple Heart and the “replacement DD-214,” filled eighty-three pages. During this

cross examination, Swisher made clear that on each of the

three occasions when Hinkson solicited him to kill Albers,

Cook, Hines, and Lodge, there were no witnesses. Swisher

stated plainly: “When he made the three direct solicitations to

me, they were made in private.” 

Much of the cross examination was devoted to showing the

extreme hostility between Swisher and Hinkson. This hostility

had arisen after Hinkson’s supposed solicitations of Swisher

to commit murder, for reasons unrelated to the solicitations.

10166 UNITED STATES v. HINKSON
Richard Bellon was one of Hinkson’s key employees at

WaterOz; indeed, the trap shooting had taken place at Bellon’s house. Sometime in late 2003, Bellon sued Hinkson. In

response, Hinkson brought Swisher into the suit, apparently as

a third-party defendant. Swisher then counterclaimed against

Hinkson for more than $500,000.

Relations between Swisher and Hinkson became so

strained that Swisher accused Hinkson of hiring someone to

kill him. Swisher testified that he was “at a remote area in

Idaho County with a Vietnam combat veteran friend.”

Swisher said that he was sitting in an outhouse when, according to his testimony, someone hired by Hinkson shot at him

and missed. However, Swisher admitted that he never saw the

person who supposedly did the shooting, and that no shell

casings or footprints were ever found.

Only one witness corroborated Swisher’s testimony that

Hinkson had been interested in, and impressed by, Swisher’s

military background. That witness was Richard Bellon. Bellon testified that Hinkson “wanted to hire Joe Swisher as a

bodyguard.” “[H]e felt like he needed to hire [Swisher]

because he was trained”:

Q. Did [Hinkson] explain to you how Mr. Swisher

was trained?

A. Yes. . . . [I]t was that Mr. Swisher had an extensive military background, that he had been in combat, and that he had killed people during the war. Mr.

Hinkson would tell me about that and the details of

him, his past.

In his own testimony, Swisher never mentioned that Hinkson

had wanted to hire him as a bodyguard. Nor did Swisher ever

mention that Hinkson had been interested in his military background because of a desire to hire a bodyguard.

UNITED STATES v. HINKSON 10167
Hinkson took the stand in his own defense. Swisher had

already testified that on three occasions Hinkson had solicited

him “in private” to commit murder. Hinkson specifically

denied having made such solicitations:

Q. Mr. Hinkson, Mr. Swisher indicated that he had

been solicited by you on a number of occasions . . . .

Do you recall that he said that in his testimony?

A. . . . Yeah.

Q. Mr. Hinkson, did you ever have a communication

with Mr. Swisher where you asked him to murder

anyone?

A. No, sir.

Hinkson had a somewhat different recollection of the

excursion to Bellon’s house. According to Swisher, they had

engaged in trap shooting “during the course of the day.”

Swisher testified, “I hit my targets.” Hinkson testified:

Q. Do you remember the evening that Mr. Swisher

went to Mr. Bellon’s house with you for dinner?

A. Yes, I do.

Q. And I believe there was testimony that that

occurred in approximately September of ‘02?

A. Yes, just before his open heart surgery.

. . .

Q. And there was someone who came to dinner that

night? Who was that?

A. Roman Polankio from the Ukraine.

10168 UNITED STATES v. HINKSON
. . .

Q. Who fired the gun that evening?

A. I’m not really interested in guns, and I shot it

twice. Mostly, Joe [Swisher] shot from his chair

because he had a hard time standing. He was pretty

sick.

Bellon, at whose home the trap shooting took place, was called by the government to testify. The government did not ask

Bellon whether it was true that Swisher was then “pretty sick”

with heart disease; that Swisher shot “mostly . . . from his

chair”; or that Swisher, though ill and sitting in a chair, successfully hit all of his targets. Those targets, according to

Swisher’s testimony, had been rapidly moving airborne clay

pigeons thirty to forty yards away.

c. Comparison of the Evidence in Counts 1

through 3 and Counts 7 through 9

The background evidence against Hinkson was the same

for both Counts 1 through 3 (the Harding-related counts on

which he was acquitted) and Counts 7 through 9 (the Swisherrelated counts on which he was convicted). It was relevant to

all of these counts that Hinkson had a paranoid unstable personality; that he disliked government interference with his

affairs; that he particularly disliked Cook, Hines, and Lodge;

and that he had asked multiple people on multiple occasions,

not limited to Harding and Swisher, to kill Cook, Hines, and

Lodge on his behalf.

The evidence specific to Counts 1 through 3 and Counts 7

through 9 is similar in a number of respects. First, there was

evidence that Hinkson believed that both Harding and

Swisher were skilled in the use of firearms. Second, there was

evidence that Hinkson knew that Harding had been a bodyguard, and that he was interested in using Swisher as a bodyUNITED STATES v. HINKSON 10169
guard. Indeed, Bellon testified that Hinkson’s interest in

Swisher’s military background and skill in firearms stemmed

from his interest in using Swisher as a bodyguard. Third, the

charged solicitations took place at about the same time.

Counts 1 through 3 charged conduct that supposedly took

place in January 2003. Counts 7 through 9 charged conduct

that supposedly took place between December 2002 and February 2003.

The evidence specific to these counts differed in some

respects. However, three of those differences made it more

likely that the jury would have convicted on the Hardingrelated counts rather than on the Swisher-related counts.

First, there was a corroborating witness to one of the

charged solicitations of Harding. Bates was a witness to the

solicitation in Hinkson’s kitchen at the beginning of January.

She testified that she saw the “wad” of money on the kitchen

table and that she heard Hinkson tell Harding that the money

was his if he killed Cook, Hines, and Lodge. Bates testified

that Hinkson had not said that he was joking when he said

this. By contrast, Swisher testified that there were no witnesses to any of Hinkson’s three solicitations. He specifically

testified that all three solicitations took place “in private.”

Second, Harding and Hinkson were good friends at the time

of the solicitations. They became unfriendly only as a result

of Harding’s reporting to the F.B.I. that Hinkson had solicited

him to commit murder. Swisher and Hinkson also had been

good friends at the time of the solicitations. But, by contrast

to Harding, Swisher had become a bitter enemy, for reasons

unrelated to the solicitations, by the time of trial. Thus, unlike

Harding, Swisher had ample reason, unrelated to the solicitations, to wish Hinkson ill when he testified at trial.

Third, Harding testified that Hinkson first solicited him in

January 2003 to murder Cook, Hines, and Lodge. He testified

that Hinkson solicited him again in March 2003. Immediately

10170 UNITED STATES v. HINKSON
after the March solicitation, Harding contacted the F.B.I. In

an effort to help the F.B.I., Harding went so far as to wear a

secret recording device in an attempt to obtain incriminating

evidence against Hinkson. By contrast, Swisher testified that

Hinkson solicited him shortly after April 2002 to murder

Albers. Swisher testified further that Hinkson solicited him in

July or August 2002 to murder Cook and Hines. Finally,

Swisher testified that Hinkson solicited him in November

2002 to murder Cook, Hines, and Lodge. Swisher testified

that he did not go to a local Idaho prosecutor to report Hinkson’s solicitations until sometime after April 2003. 

Harding was so concerned about Hinkson that he went to

the F.B.I. within two months of the time Hinkson first solicited him, and immediately after the second time. When Harding contacted the F.B.I., he and Hinkson were still on good

terms. Harding testified that he spoke directly to Nancy Cook,

one of Hinkson’s would-be victims, and told her that he

thought she was in danger. Harding then wore a wire at the

request of the F.B.I. in an attempt to obtain evidence against

someone he clearly thought was dangerous. By contrast,

Swisher waited at least a year after Hinkson solicited him to

murder Albers, at least nine or ten months after Hinkson

solicited him to murder Cook and Hines, and at least three or

four months after Hinkson solicited him to murder Cook,

Hines, and Lodge before reporting Hinkson to law enforcement officials. Unlike Harding, Swisher called a local Idaho

prosecutor rather than the F.B.I., even though federal officers

had been threatened, and, unlike Harding, Swisher gave no

specifics about what he told law enforcement officials. When

Swisher finally contacted the local prosecutor, he and Hinkson were no longer on good terms. There is nothing in the

record to indicate that Swisher ever offered to wear a wire or

otherwise to help gather incriminating evidence against Hinkson.

In three respects the evidence against Hinkson at trial was

stronger in the Swisher-related counts than in the Hardingrelated counts.

UNITED STATES v. HINKSON 10171
First, Swisher testified that Hinkson believed him to be particularly well qualified to be a killer. Swisher testified that he

told Hinkson about his combat experience in Korea, and that

he had killed “too many” people. We now know that Swisher

was never in combat in Korea and that he never killed anyone,

let alone “too many” people. However, there is evidence from

both Swisher and Bellon that Hinkson believed the story.

Swisher’s (falsely claimed) combat experience could well

have made a greater impression on Hinkson than Harding’s

experience with firearms and his work as a bodyguard. There

was a great deal of evidence at trial — most of it from

Swisher himself — about Swisher’s ill-health. But the jury

could have concluded that despite Swisher’s ill-health, Hinkson could have seen him as a well qualified killer.

Swisher further testified that while trap shooting he had

demonstrated to Hinkson that he was an excellent shot. The

jury might have had some reason to doubt Swisher’s testimony that he hit all of his targets, given that Hinkson

described Swisher as a very sick man who sat in a chair while

shooting. But the jury could well have disbelieved Hinkson,

and could have believed that Swisher had indeed demonstrated to Hinkson on that occasion that he was an excellent

shot. The jury could have concluded that an actual demonstration of shooting prowess by Swisher was more impressive to

Hinkson than Harding’s mere talk about his knowledge of

guns.

Second, Swisher testified that during the first solicitation

Hinkson’s “demeanor” had been “calm and cool,” and that

during the third solicitation Hinkson’s “demeanor” was “almost in a pleading fashion.” By contrast, Harding testified

that he had difficulty telling whether Hinkson was serious in

soliciting the murders. Only after a second solicitation in

March did Harding decide that Hinkson had been serious.

Third, Swisher presented himself as a United States Marine

who had been wounded in the service of his country. His sta10172 UNITED STATES v. HINKSON
tus as a decorated war hero may have been, for some or all

of the jurors, an additional reason to believe his testimony.

The jury may have found Swisher particularly credible and

sympathetic when, after an accusation by Hinkson’s counsel

that Swisher was lying about his military record, Swisher dramatically produced his “replacement DD-214” from his

pocket. The jury might also, despite the district court’s

instruction, have penalized the defense for what appeared to

be an unfounded attack on a decorated war hero.

Our task is not to replay the first trial except as it might

help us predict what would happen if Hinkson is retried on

Counts 7 through 9. The question before us is what would

happen at a new trial. Specifically, the question is whether the

fifth Harrington requirement is satisfied: Does the new evidence “indicate that a new trial would probably result in

acquittal”?

In the original trial, Swisher was the only witness to provide direct evidence that Hinkson solicited him to commit the

killings. On retrial, the government would have no choice but

to rely on Swisher to supply the evidence of Hinkson’s solicitations. To say that Swisher’s credibility would fare poorly at

a new trial is an understatement.

At Hinkson’s original trial, the jurors almost certainly had

the impression that Swisher was a decorated combat veteran.

The prosecutor described Swisher in his opening statement as

a “Combat Veteran from Korea during the Korean Conflict”

who “was not averse to . . . violent, dangerous activity,” and

stated in his closing argument that Hinkson “understood” that

Swisher “had served in combat and killed people.” In

response to defense counsel’s questions, Swisher produced his

“replacement DD-214” on the witness stand and testified that

he had seen combat in Korea and earned a Purple Heart.

Defense counsel asked the district court to instruct the jury to

disregard that testimony because he feared that the jury might

penalize the defense for wrongly assailing a war hero.

UNITED STATES v. HINKSON 10173
Although the court granted defense counsel’s request, the

court’s instruction to the jury referred to Swisher’s lapel pin

as a “Purple Heart Medal” and a “military commendation.”

Defense counsel’s efforts to impeach Swisher at the original trial focused on the fact that Swisher and Hinkson, who

were once friends, were now bitter enemies who had sued and

counter-sued each other. On retrial, impeachment of Swisher

would not be so limited. The parties now know conclusively,

based on the Miller and Woodring affidavits, that Swisher

forged his “replacement DD-214” and his purported “supporting letter” from Colonel Woodring, and that he used these

forged documents in an effort to obtain veterans’ benefits.

The parties also now know conclusively that Swisher never

served in combat or earned any personal military commendations, and that he was not injured in battle overseas but in a

private automobile accident near Port Townsend, Washington.

And they now know conclusively that Swisher lied under oath

during the first trial about participating in secret combat missions in North Korea, about being wounded in action, and

about receiving a Purple Heart.

At a new trial, the government could put Swisher on the

stand to testify, as he did at the original trial, that he told

Hinkson that he was a decorated Korean War veteran who had

killed “too many” people. The government could then argue

that Hinkson, believing these things, seriously solicited

Swisher to kill three government officials. But this time, on

retrial, defense counsel and the government would know the

truth.

Defense counsel would impeach Swisher by asking if it

was true that he was not in fact a Korean War veteran; that

he had in fact not won a Purple Heart or other awards; that he

had not in fact been injured in combat in Korea but rather in

a private automobile accident; and that in fact he had lied to

the Idaho Division of Veterans Services about his injuries and

non-existent medals in an attempt to get military benefits to

10174 UNITED STATES v. HINKSON
which he was not entitled. That would already be bad enough,

but it would get worse.

Defense counsel would also ask Swisher whether, the last

time he appeared in court to testify under oath against Hinkson, he wore a Purple Heart lapel pin to which he was not

entitled, presented a forged “replacement DD-214,” and lied

about his military record. This time, defense counsel would

not be left defenseless if Swisher were to choose to lie in

response to these questions because this time the government

would also know the truth. If Swisher were to lie in response

to any of the questions, the government would be obligated to

correct the record. See Napue, 360 U.S. at 269; Hayes v.

Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).

In short, a new trial would be a disaster for the government.

A new jury would not only learn, as the first jury did, that

Swisher and Hinkson, once friends, had become bitter enemies by the time Swisher testified. It would also learn, as the

first jury did not, that Swisher had no compunction about

lying under oath to serve his ends, and that he had lied under

oath and produced forged documents at Hinkson’s first trial.

I therefore conclude, under the fifth part of the Harrington

test, that a new trial would probably result in acquittal.

6. Summary

Because Hinkson’s motion met all five requirements of the

Harrington test, I would hold that he is entitled to a new trial

on the Swisher-related counts of soliciting murder.

Conclusion

The district court committed two errors, either of which

was sufficient to reverse its decision and grant Hinkson a new

trial. I would reverse the district court’s denial of Hinkson’s

motion for a new trial because the district court erroneously

precluded Hinkson from introducing documents into evidence

UNITED STATES v. HINKSON 10175
to show that Swisher lied about his military record and forged

his “replacement DD-214.” I would also reverse the district

court’s denial of the motion for a new trial because the newly

discovered evidence produced in support of the motion satisfies the five-part Harrington test. 

10176 UNITED STATES v. HINKSON