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Court overturns conviction of N. Idaho businessman

By Todd Dvorak
Associated Press Writer
June 2nd 2008

BOISE, Idaho (AP) -- A federal appeals court has overturned the conviction of a north Idaho businessman accused of plotting to kill a federal judge, prosecutor and tax agent who were involved in a tax case against him.

A three-judge panel of the 9th U.S. Circuit Court of Appeals found that a key witness in the 2005 trial lied under oath.

The panel voted 2-1 to grant a new trial to David Hinkson, a millionaire who lived outside Grangeville and owned a mineral water company called WaterOz. Hinkson, 51, was convicted in a two-week trial of conspiring to pay a business associate and another man $10,000 to kill U.S. District Judge Edward Lodge, Assistant U.S. Attorney Nancy D. Cook and Internal Revenue Service Special Agent Steven M. Hines. All three were involved in a separate, federal tax case against Hinkson's water business. None of the officials were harmed, but Hinkson was sentenced to 43 years in prison.

In a ruling filed Friday, the appellate panel ordered that Hinkson deserves a new trial because the government's star witness, Elven Joe Swisher, 71, forged documents used at trial and lied under oath about his military background.

During the trial, prosecutors described Swisher as a Korean War veteran, and while on the witness stand Swisher sported a replica Purple Heart pin on his lapel. Swisher testified that because of his combat exploits and claims of killing enemy soldiers in battle, Hinkson was impressed and interested in hiring Swisher for the "hit."

But Swisher was charged in federal court in 2007 with taking $95,000 in unearned benefits and falsely posing as a veteran of the Korean War. He was found guilty of four counts related to the charges in U.S. District Court in Idaho on April 9 and is awaiting sentencing.

"It's the most extraordinary case I've seen, because the government has since then prosecuted and convicted its main witness for doing what he did on the witness stand," Dennis Riordan, the San Francisco-based attorney who represented Hinkson before the appeals court, told The Associated Press. "He was the only witness who testified that Hinkson had asked Swisher to murder these federal officials. He said Hinkson asked him because he was a military hero and a real killer. But he was a fraud."

A lower court denied Hinkson's initial appeal, but 9th Circuit Judges William Fletcher and Proctor Hug Jr., found the lower court ruling flawed.
"Because Hinkson's conviction substantially rests upon the testimony of a witness who had been conclusively shown ... to be a forger and a liar, we hold that the district court abused its discretion in denying Hinkson's motion for a new trial," the majority opinion said.

Judge M. Margaret McKeown disagreed, saying exposing a witness as a liar on collateral issues is not grounds to overturn a murder-for-hire scheme corroborated by other witnesses.

"The question in this case is whether David Hinkson solicited Swisher to murder a federal judge and other public officers, not whether Swisher lied about his military service," she wrote.

A spokesman for the U.S. attorney's office in Boise expressed disappointment in the ruling. Assistant U.S. Attorney Rafael Gonzalez said government lawyers must decide whether to ask a full panel of appeals court judges to review the decision.

Attorneys for Hinkson did not immediately return phone messages left by The Associated Press Monday.

Hinkson was indicted in 2004 on 11 counts related to the alleged murder plot. Six counts covered his purported effort to hire James Harding, a business associate, to murder Lodge, Cook and Hines, first in January 2003 then again three months later. Three of the counts stemmed from Hinkson's attempt to hire Swisher. The final two counts accused Hinkson of personally threatening to kill the children of Cook and Hines.

A jury deliberated for two days before convicting Hinkson of the counts involving

Swisher, while acquitting or deadlocking on the other charges.

Each of the federal officials was involved in a separate case against Hinkson involving WaterOz. In that case, Hinkson was convicted of tax evasion and violating Food and Drug Administration laws against selling misbranded drugs and equipment by claiming his mineral water contained gold and silver and could be used to treat ailments ranging from carpal tunnel syndrome to AIDS.

He was sentenced to 10 years in prison on the tax evasion and white collar crimes.

WaterOz was founded by Hinkson in 1991. The private company headquartered outside of Grangeville has a payroll of 15 full-time employees, maintains a nationwide network of distributors and generates about $2 million in sales annually, company officials say.