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Attention: open in a new window. E-mail

Letter To Ninth Circuit Court

October 16th 2007

Cathy A. Catterson
Clerk, U.S. Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, Ca. 94103-1526

Re: United States v. Hinkson, No. 05-30303; No. 05-30305

Dear Ms. Catterson:

In a Rule 28(j) letter sent to the Court on September 21, 2007, defendant-appellant Hinkson brought to the Court’s attention the fact that the United States Department of Justice had indicted Eldon Swisher, the only witness to testify to the alleged conduct of which Hinkson was convicted in No.05–30303. United States v. Elven Swisher, CR 07-0182 (S BLW),. Hinkson asserted that the indictment constituted a governmental concession that Swisher engaged in the criminal conduct of perjury, obstruction of justice, and the fraudulent display of military decorations during his appearance as a government witness at defendant’s trial. He further asserted that by indicting Swisher on these specific charges the government had “effectively conceded that all of the evidence needed to establish Swisher’s lies at trial was in the files of government agencies well before the prosecution called him to testify.”

In an order of September 28, 2007, this Court ordered the government to respond to Hinkson’s letter in general, and in particular to apellant’s allegation that before Swisher testified, the government was in possession of, and failed to produce to the defense, the information needed to expose the falsehoods he promulgated from the witness stand. In essence, the Court asked the government to answer the now famous questions: “What did the government attorneys know [about Swisher’s lies], and when did they know it.” The government filed its response on October 11, 2007. Rather than answer those crucial questions, the government has regurgitated the “harmless error” arguments contained in its prior briefing.

Based on that response, Hinkson submits that the Court has two alternatives. The first is to reverse Hinkson’s convictions in 05-30303 based on the undisputable conclusion that those convictions were obtained by the jury’s reliance on perjured testimony and false documents; that result can be reached without addressing the issue of whether the government knew Swisher intended to commit perjury and obstruction of justice before the prosecutors put him on the stand. The second is to require the government to directly and unambiguously answer the question it has attempted to evade both at oral argument and in its recent missive: when did AUSAS Sullivan and Taxay first learn of the fact that the government’s own records demonstrated that Swisher had never served in combat or earned any commendations, including the fraudulent Purple Heart he wore on the witness stand?

As to the first alternative, the government rendered highly relevant the question of whether Swisher was a combat veteran when in his opening statement AUSA Sullivan informed the jury in no uncertain terms that “He was a Marine, a Combat Veteran from Korea during the Korean conflict. He was not adverse to this kind of violent, dangerous activity....” (ER 19; RT 290-291; emphasis added) The government further put the issue of Swisher’s military record in play when it permitted him to wear during direct examination a Purple Heart medal, a commendation that, though fraudulent, lent critical support to the government’s claim before the jury that Hinkson solicited Swisher because the latter was a military-trained, combat-hardened killer.

Plainly, it was the government that first made Swisher’s military record an issue in this case, and it never disabused the jury of the falsity of Sullivan’s statements in opening or of the fraudulent and criminal nature of Swisher’s wearing of a Purple Heart during his direct examination by Sullivan. Given the above, the government’s claim that Swisher’s military record constituted a collateral matter going only to his character for truthfulness, rather than the truth of his testimony concerning matters directly at issue in this case, is simply specious. The trial court’s ruling that permitting Swisher’s military records into evidence would spark of a time-consuming “mini-trial” of competing witnesses was dead wrong: the records would have established Swisher’s mendacity in five minutes, and there was no other side of the story to be told. Swisher’s perjury requires reversal, whether or not its use by the government was knowing. United States v. Young, 17 F.3d 1201, 1203 (9th Cir. 1994)

Should the Court choose to reach the “what and when” questions noted above, however, the record strongly suggests the conclusion that prior to calling Swisher, AUSA Sullivan knew that his witness intended (a) to commit the crime of wearing a false commendation during his direct examination, (b) to lie under oath about having served in combat, and (c) to proffer forged documents while on the witness stand. The facts are these:

(1) In discussing Swisher’s military record on the morning he was to testify on Friday, January 14, 2005, AUSA Sullivan asked him: “Wasn’t the Armistice in ‘52?” That question reflected a realization that, contrary to Swisher’s grand jury testimony of April 16, 2002 that he was “an old disabled veteran, and that was all caused by a hand grenade at the end of the Korean War....” (ER 17), Swisher could not have served in the Korean War, because he would have been too young at the time. Sullivan thus knew enough the morning of the 14th to question Swisher about the accuracy of his witness’s representations concerning his military record.

(2) During Sullivan’s discussion with Swisher on the 14th, Swisher produced the “replacement DD-214" that supposedly attested to his combat service and many commendations, and he gave Sullivan a copy. (ER 27; RT 1124) One of two things is true: (a) Sullivan was convinced of the authenticity of the document. In that case, Sullivan would have had Swisher testify to his combat service in Korea, thereby providing crucial corroboration of the government’s claim that he described his military exploits to Hinkson, and Hinkson was so impressed by them that he solicited Hinkson to murder federal officials; or (b) Sullivan had substantial reason to doubt the authenticity of Swisher’s documents and claims of combat service and medals, and as a result he decided that he could not ethically offer Swisher’s testimony concerning his war record..

(3) Despite his unequivocal assertion in opening argument that Swisher was a combat veteran from the Korean War and despite Swisher’s proffer to him of the replacement DD-214, Sullivan decided not to elicit testimony concerning Swisher’s military record on direct examination. The logical explanation for that decision is that Sullivan knew, or had strong reasons to believe, that if he explored those areas with Swisher, he would suborn perjury.

(4) Nonetheless, Sullivan permitted Swisher to wear a Purple Heart and to carry the replacement DD-214 onto the stand while refraining from informing the defense of his conclusion that Swisher would likely lie on the stand. Again, the logical explanation for that decision is that, while wishing to avoid overtly eliciting perjury himself, Sullivan wished to benefit from what he knew would occur if Swisher was questioned about his military record. That such was Sullivan’s thinking is reflected in his answer when defense counsel asked him why he had not informed the defense about the document. Sullivan responded: “Why should I?” (ER 26; RT 1119) Sullivan later stated smugly: “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.” (ER 28; RT 1126)

One fact that would explain all of the sequence of events stated above is that before Swisher testified, the investigators assigned to this case and/or Sullivan himself were in possession of the Dowling Report, sent by a branch of the federal government to the Idaho Department of Veterans Affairs on December 30, 2004, two weeks before Swisher’s testimony that report fully exposed the truth about Swisher’s invented heroism, as well as the financial fraud Swisher was committing by means of the forged DD-214. The Dowling letter was turned over the defense as Brady/Giglio material on January 21st, a week after Swisher completed his testimony. The copy in the trial record contains a fax date of noon on January 13, 2005, the day before Swisher testified. (ER 71) As the Court noted at oral argument, the number from which the Dowling report was faxed was that of the Idaho Division of Veterans Affairs. Since the government produced the report a week later in court, it seems likely that the recipient of the report on January 13th was the prosecution team.

If that is the case, AUSA Sullivan spoke falsely when he protested to the trial judge on January 14th that “I have no evidence or reason to believe that the [DD 214] document is false.” (ER 28; RT 1127) Likewise, AUSA Taxay misled the Court (to put it charitably) when he stated at page three of his letter of October 11th that: “prior to Hinkson’s surprise presentation of the letter he had obtained from the National Personnel Records Center, the prosecution team did not know that Swisher’s representations were inaccurate.” The government could have dispelled these troubling conclusions, if they are unfounded, by directly and candidly informing this Court (1) precisely when any and all members of the prosecution team first learned of the Dowling report; and (2) why AUSA Sullivan did not elicit from Swisher the information regarding his witness’s military record that Sullivan had promised the jury in his opening statement. The government has quite consciously declined to provide this Court with the answers to those crucial questions, thereby engaging in the sort of evasions that led to Judge Kozinski’s blistering rebuke of such dissembling in United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (Prosecutor committed misconduct requiring new trial by arguing to jury that government witness received no cooperation agreement when he knew truth was to the contrary, then attempted to conceal the true facts from the Ninth Circuit panel hearing the defendant’s appeal). Reversal of these tainted convictions is imperative if the integrity of the federal judicial system is to be maintained. Mesarosh v. United States, 352 U.S. 1, 14 (1956) ("The government of a strong and free nation does not need convictions based on such testimony.")

I thank the Court for its consideration of this matter.

Sincerely,

DENNIS P. RIORDAN

Attorney for Appellant

DAVID HINKSON

DPR/jy

Enc.

cc: Alan Hechtkopf, Assistant U.S. Attorney
Michael Taxay, Assistant U.S. Attorney