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