AFFIDAVIT OF WESLEY W. HOYT
In Re: Hinkson Petition for Habeas Corpus under 28 USC §2241, and
For the Establishment of a Right to Relief that is Satisfactory to the Court under Rule 55
STATE OF COLORADO
COUNTY OF BOULDER
)
) ss.
)
WESLEY W. HOYT, upon his oath, deposes and states:
I am an attorney who has been licensed to practice law in Colorado for the past forty
years and in Idaho for over twenty years; I am currently licensed and have an active practice in
both states. From 1994 through 1997, I served as the Deputy Prosecutor of Idaho County, Idaho.
The facts stated in this Affidavit are true, based on my own personal knowledge, except as to
matters based on information and belief; and, as to such matters, I believe them to be true
because they are derived from trustworthy and reliable sources.1 The cumulative effect of all the
evidence presented herein supports David Hinkson’s claim of actual innocence. Some facts were
excluded, some were not presented at Hinkson’s 2005 trial on the solicitation charges and the
remainder were not considered for their cumulative effect or ruled upon in accordance with the
actual innocence doctrine and false evidence standard.
I. BACKGROUND
David Hinkson, now age 57, has been incarcerated for ten years and eleven months on
false murder-for-hire charges trumped up by Elven Joe Swisher who, subsequent to Hinkson’s
2005 trial, was convicted in 2008 on perjury, forgery, theft and stolen valor charges. Hinkson
developed a dietary supplement product and founded a manufacturing and distribution company
located near Grangeville, Idaho in 1997. Swisher was a service-provider (assayer) for Hinkson’s
company, performing testing of the dietary supplement product(s) for mineral content. At some
time during the professional relationship, Swisher, recognizing the lucrative nature of the
business, attempted to extort both money and a share of the business from Hinkson. When
Hinkson refused, Swisher proclaimed publicly that he wanted to make sure Hinkson went to “jail
for the rest of his life”, and in order to make sure that happened, said that he “would go to Boise
to testify.” In fact, Swisher went to Boise and began a nightmarish scenario by testifying in front
of a Grand Jury in 2004. As a private attorney in Idaho, as the Deputy Prosecutor and as a
lawyer associated with Hinkson since 2003, I have observed the facts and am aware of the
information in this affidavit detailing the methodology used by Swisher and the Prosecution (the
1This Affidavit provides evidence about which I have personal knowledge that bears on Hinkson’s claim of actual
innocence as to events that occurred in Idaho County, Idaho, where I served as Deputy Prosecutor. Idaho County is
the home of both David R. Hinkson (“Hinkson”) and Elven Joe Swisher who was the only witness the jury believed
in Hinkson’s 2005 solicitation of murder-for-hire trial (the “Solicitation Case”, Idaho Federal District Court Case
No. CR-04-0127-C-RCT). Swisher’s testimony was the basis of Hinkson’s conviction of three out of eleven counts
of solicitation for the murder of federal officials under 28 USC §373 (the “Swisher Counts”) at the 2005 trial.
Swisher testified that the time period of Hinkson’s murder solicitations supposedly occurred in Idaho County on
three occasions, in (a) April 2002 (after April 16th); (b) in July or August 2002; and , (c) in mid-January 2003. The
evidence in this Affidavit shows that it was impossible for Hinkson to have held the solicitation meetings with
Swisher at the times and places stated by him. Therefore, the proof of actual innocence turns on the credibility of the
witness Swisher, without whom there was no case.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 1 of 78
United States Government) to wrongfully convict Hinkson.
This case involves ‘offsetting witness credibility’, i.e., wherein one said something happened,
and the other said it did not. It is a classic ‘he said – he said’ debate, and after accusations were
made by Swisher (the Prosecution’s ‘star witness’), Hinkson was left with having to prove a
negative. Therefore, the evaluation of Swisher’s credibility is critical, especially when it has
been clearly demonstrated that he has a pattern of lying relative to other facts in this case.
II CASE SUMMARY
1. David Hinkson---Extreme Intelligence/Asperger’s. Mr. Hinkson, like others with Asperger
Syndrome (such as Albert Einstein), presents with classic signs, such as high intelligence and
lack of social skills. He is extremely creative, unusually outspoken (sometimes to the point of
being irritating or offensive) and completely non-violent, having never harmed anyone (see ¶
11 below.) He is an in-depth researcher, voracious reader, has a photographic memory and is
considered by some to be a “genius”. He has been a radio talk-show host, inventor,
businessman and a paralegal in a Las Vegas law firm from 1990 to 1995, prior to developing
a line of dietary supplement products in 1996 along with his manufacturing and distribution
company, “WaterOz”. Hinkson has always been interested in and active regarding political
matters and was instrumental in “un-electing” several Clark County, Nevada Commissioners
whom he believed were corrupt2 and derailing the election-bid of Attorney Dennis Albers for
the office of Idaho County Prosecutor in 2000.
2. Hinkson’s Work as a Paralegal Trained Him to Petition for Redress of Grievances. As a
paralegal, Hinkson learned to prepare and submit complaints and petitions to his government
for redress of grievances; he also became skilled in ‘dispute letter-writing’ seeking
administrative action.
3. Hinkson Discovered the Ionization Process and Started WaterOz Business. Hinkson
made a significant contribution to the health-sciences in 1994 when he discovered the
process of “ionizing” minerals into angstrom-sized particles (smaller than nano) suitable for
human consumption in their most absorbable form. He perfected the method of suspending
the ionized minerals in highly purified water and bottled it for everyday dietary-supplement
use in mineral replacement therapy. The liquid mineral supplement product, useful for
addressing mineral deficiencies often caused by diet, lifestyle and mineral-depleted soils, is
produced from 99.9998% pure minerals that are non-toxic to the environment. After starting
his WaterOz company in Las Vegas, Nevada in 1994, Hinkson re-located the business and his
family to unincorporated Idaho County (twenty miles north of Grangeville) in late July 1997.
2 In connection with the mid-1990 Clark County Nevada election of County Commissioners, Hinkson explained
their corruption in 600,000 fliers he printed then recruited homeless people to pass them out. After moving to Idaho
County and in 2000 he sent out 10,000 letters in a campaign to remind Idaho County voters that Dennis Albers, who
was running for Prosecuting Attorney, had been sanctioned by a disciplinary decision of the Idaho Supreme Court
which told him not to run for Prosecutor again because of jury tampering by Albers in Swisher’s 1980 child
molestation case (involving the rape of his three daughters, each under age 10). When the mistrial occurred, because
Albers was seen “chatting” with one of the jurors during a recess, the case was not reset for trial by Albers, allowing
Swisher to escape justice. While I was Deputy Prosecuting Attorney, Albers admitted to me that he had carried on a
conversation directly with one of the jurors in the hallway during a court recess which was the event that caused the
mistrial.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 2 of 78
Hinkson holds an honorary Naturopathic degree and, until his detention in April 2003, was
highly sought after as a speaker at various health conferences nationwide.
4. The “Tax Case.” On November 21, 2002, Hinkson was arrested and immediately
released on his own recognizance after the execution of a Federal Search Warrant at
his home and factory involving FDA product-labeling violations, failing to file tax
returns and structuring of currency transactions (herein the “Tax Case.”)3
5. WaterOz Profitability Attracts Those with Takeover Mentality. WaterOz products
gained recognition, popularity and acceptance in 1998, which resulted in gross
revenues accelerating from less than $80,000 in 1997 to over $4.0 million per year by
2000. The extraordinarily rapid rise in profitability of the company attracted the
attention of certain parties in Hinkson’s circle who schemed up a plan for a ‘hostile
takeover’ of the company since Hinkson was often physically absent from the
manufacturing plant in much of 2001 and 2002 while traveling abroad to develop an
international market for his product. Between 1998 and 2004, at least four separate
individuals or groups attempted to take over the WaterOz business (mainly employees
or contractors who seemed to think it was “okay” to take a business from a self-made
“science guy.” Each of these takeover people went after what they perceived should
be their ‘piece of the pie,’ and Swisher, the local mineral assayer became one of the
most persistent. On January 3, 2003, as a part of his attempt to take money from
Hinkson, Swisher schemed up a “cyanide-extortion” plan (see ¶ 28(e)) demanding a
one-half interest in WaterOz and $800,000 as his ‘slice’ of the pie (see Affidavit of
David R. Hinkson Ex A-2, ¶ 72). Swisher, who was unsuccessful at the extortion
attempt, joined up with some current and former employees who decided to file a
lawsuit to gain control of the company. Hinkson was required to defend this, and
various other lawsuits, to ward off these takeover attempts, including a 1998 lawsuit
filed by Annette Hasalone (daughter-in-law of Hinkson’s then general manager,
Bobbie Eve) who was represented by attorney Dennis Albers. When Hasalone was
unable to obtain an interest in Hinkson’s business, she sued for over $600,000. The
final result of her suit in August 1999 was a judgment amounting to $100,000 which
was paid by Hinkson in the fall of that year. Swisher later claimed that Hinkson was
obsessed with the Hasalone judgment and that it drove him to demand the torturemurder
of Hasalone’s attorney, Dennis Albers. However, by 2002, when Swisher
claimed to have been solicited by Hinkson, $100,000 amounted to less than 1% of
Hinkson’s gross revenues and Hinkson was consumed with building the international
side of his WaterOz business, inspecting sites for regional bottling plants in foreign
countries and had thus ‘moved beyond’ Hasalone’s victory.
6. Pending Cases: I was retained by David Hinkson on December 3, 2003, to handle
matters related to his dietary supplement business, including defending the company
against Swisher’s lawsuit that was in process at that time based on a Temporary
Restraining Order.
7. Swisher’s Motive Shown by Extortion Attempts and Hostile Takeover. On
3 The Tax Case: Idaho Federal District Court Case No. 3:02-cr-00142-BLW-RCT, involved a forty-three Count
Indictment set for trial in late April 2004 related to three subject areas: (a) Failure to File Tax Returns; (b) Improper
Product Labeling under FDA Law; and (c) Structuring of Currency Transactions.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 3 of 78
December 2, 2003, the date the TRO was entered Hinkson was defending the Tax
Case and had been in detention on false murder-for-hire accusations trumped up by
his former housekeeper, Mariana Raff (of which it was later proven he was actually
innocent) who used the charge to cover up her theft of $6,000 travel money that she
found in his home). For eight months (since April 4, 2003) Hinkson had been sitting
in a county jail because of these false Raff charges (see ¶ 21(a) and fn 30) unable to
actively manage his business while several of his employees and Swisher planned the
takeover.
a. Swisher Set Up Hinkson for FDA Charges. Hinkson had been ‘set up’ for FDA
violations by Swisher based on the mineral content in his products not matching
the amount specified on the label. Swisher turned in assay reports that showed his
product mineral content was accurate while another employee, Hinkson’s trusted
mineral-maker, ‘Chris’ deliberately made the product with less than the specified
amount of mineral content. As a result, when his products were tested by the
FDA, they were deficient, a misdemeanor law violation.
b. History of Hinkson’s Arrest and Incarceration. His initial arrest was November
21, 2002 supported by an indictment on FDA product labeling violations, failure
to file tax returns and currency structuring charges. Initially, he was released from
custody on his own recognizance, but five months later, the false Raff Charges
arose and he was arrested and placed in pretrial detention. Since the Raff charges
were only supported by her statement, the objective observer would expect the
FBI agent she spoke with to investigate the truth of the matter because it involved
the safety and security of federal officials. These were proven to be absolutely
false allegations but it took over a year to galvanize the FBI into taking a serious
look at the Raff accusations.
c. Hinkson’s Absence Opened Door to Takeover. The net result was that Hinkson
remained in jail from April to December 2003 when the takeover occurred (and
beyond). Hinkson had been absent from his business for eight months, by
December 2, 2003 when Swisher, WaterOz employees Lonnie Birmingham and
Richard Bellon (a felon who went to prison for assaulting an elderly female IRS
agent in California, see Ex A-12) and the other collaborators obtained a TRO by
fraud and commenced a hostile takeover.4 This group misrepresented facts to the
local Idaho State Judge, causing him to grant the TRO based on false testimony.
d. Defense of TRO Lawsuit. I was hired to defend that TRO lawsuit and to work
with Hinkson’s designated WaterOz management team on other civil matters and
4 In his 2005 trial testimony in the Hinkson Solicitation Case, Swisher pretended that he was not a part of the hostile
takeover of WaterOz; however, I defended the case and observed Swisher’s participation in every aspect of that
proceeding, providing the “expert witness” testimony to the Idaho State Judge at the TRO hearing, falsely stating
that the WaterOz products were unsafe for the public and alleging there were unclean working conditions, all in
order to obtain the TRO that permitted him and his co-conspirators to take over the business. Swisher, who
pretended to be an expert in “Best Manufacturing and Management Practices,” entered WaterOz with his coconspirators
on December 2, 2003, ejecting Hinkson’s management team, declaring himself to be CEO of WaterOz
and rifling through the WaterOz company records (see Ex A-9, Towerton Aff. of 04-15-12 ¶ 27-28) stealing
customer lists and trade secrets. Swisher, an assayer, who worked with minerals in the context of mining, was
seeking to clone the process for himself.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 4 of 78
business-related issues. Swisher and his co-conspirators were able to do a great
deal of damage in the week that they had control of the company. By December
10, 2003, the TRO was vacated and the ‘takeover conspirators’ ejected, although
it required several months of litigation to get the case dismissed.
e. Swisher and Cohorts Believed Lawsuit would Put them in Control of
WaterOz. During those months, as litigation was pending, Swisher and Bellon
actually believed that they would win the case and thus be able to obtain ultimate
control of WaterOz. Acting on that belief, Swisher stepped up his tactics and went
“to Boise to testify against Hinkson’ before the Grand Jury on February 10, 2004
in aid of his plan to send Hinkson to prison for the rest of his life (to keep him
from claiming his business). Swisher’s plan was to testify that Hinkson was the
mastermind behind a plot to torture-murder many people, including three
specifically designated, Idaho federal officials, IRS Special Agent Steven Hines,
Federal Prosecutor, AUSA Nancy Cook and Federal District Court Judge, Edward
Lodge (the “Designated Federal Officials”).
f. Plan to Imprison Hinkson for Life. These very serious charges were supported
by the Government and Swisher, who was certain that if Hinkson was locked
away and never got out of prison, leaving a void in the management of WaterOz,
the control would fall to him because of the lawsuit. Since part of Swisher’s plan
was to put Hinkson in “jail for the rest of his life” (see ¶23(c)(iii)) he wanted to
get Hinkson out of the way to avoid any claim by Hinkson related to his interest
in WaterOz. Thus, Swisher’s plan was to clear the way for the complete takeover
of the company.
g. Swisher wanted Hinkson’s Property. In that TRO lawsuit, Swisher made bogus
claims for over a half-million dollars of property which he said Hinkson owed
him, based on a ‘trade-out’ or ‘set off’ theory alleging that he had only partially
billed for, and only been paid partially in cash for mineral-testing services and
what he claimed was the remaining outstanding amount due, supposedly was to
be paid by “in-kind’ transfers of real property and heavy equipment plus $250,000
in cash to help Swisher start up a new business. When these false allegations of
‘in-kind’ property transfers were finally dismissed in October 2003, they were
reinvented by Swisher for the Solicitation Case as “verbal gifts,” which Swisher
implied were to be disguised payments in the murder-for-hire scheme Swisher
claimed Hinkson had developed to eliminate his “tormentors” (which consisted of
a list of anyone identified by Swisher that grew over time). Swisher chose the
same list of property that he wanted from Hinkson, but for the Solicitation Case,
put a different spin on it. In the TRO lawsuit, it was ‘trade-out’ for assay work, in
the Solicitation Case it was a ‘trade-out’ as part-payment on the alleged murderfor-
hire plot.
8. The “Solicitation Case.” The indictment in the Solicitation Case was served on
Hinkson in June 2004, after the May verdict in the Tax Case, and refers to eleven
counts of murder-for-hire solicitation, eight of which (the “Bates and Harding
Counts”) were ultimately dismissed. The three charges of murder solicitation that
were not dismissed (as to the Designated Federal Officials) and on which Hinkson
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 5 of 78
was convicted, form the basis for Hinkson’s §2241 Habeas petition and stem from
allegations by Swisher (herein the “Swisher Counts”).
a. The Swisher Counts came about because Swisher testified before the Grand
Jury in Boise on February 10, 2004 at a time when he believed he would be
able to get control of WaterOz via the pending TRO lawsuit (which had been
filed a few months before, on December 2, 2003).
b. The facts show that Swisher’s pattern of lying to various federal tribunals
revolves around what he believed would lead to his own financial gain. For
instance, Swisher lied to the Veterans Administration about his fake military
career to obtain over $150,000 in medical payment for his 2002 massive heart
attack, life-flight to Spokane, open heart surgery, ICU, double pacemaker,
therapy and recovery expenses) all paid for by the VA because Swisher
pretended to be a wounded combat veteran from the Korean War era. Swisher
also fraudulently obtained a substantial monthly disability income payment
for which he was also convicted.
c. Using the same lies he told to the VA, Swisher built of a false credibility as a
Korean combat hero, as a springboard to accusing Hinkson of soliciting him
to murder the Designated Federal Officials and that would put Hinkson “in jail
for the rest of his life;” clearing the way for Swisher to obtain a half-interest
of Hinkson’s business that, as of 2002 was producing $4,000,000 per year.
One of Swisher’s co-conspirators, Bellon, fraudulently claimed he had a
partnership agreement with Hinkson giving him half of Hinkson’s business
which also, Bellon claimed allowed him to take over the business. Ultimately,
all of these take over claims were defeated in the litigation process.
9. Hinkson’s Trial Counsel. As of December 2003, Hinkson’s former criminal defense attorney,
Britt Groom, had withdrawn from the Tax Case and I was asked to find Hinkson an Idaho
federal criminal lawyer to defend him. None of the dozen or so qualified attorneys in Idaho I
contacted would take the case, as it was considered to be too “icky” (a term used by a noted
Idaho criminal attorney who turned down the case because of what he called the “ick” factor)
due to the (false) allegations that Hinkson had plotted the murder of an Idaho federal judge,
IRS agent and prosecutor (i.e., the Designated Federal Officials). It was therefore necessary
to hire an experienced criminal trial attorney from out of Idaho. The same situation occurred
in 2004 when the Solicitation Case Indictment was served on Hinkson, i.e., because no Idaho
federal criminal trial attorney would accept Hinkson’s representation, an out-of-state attorney
was retained. This Affidavit is based on my knowledge of facts pertaining to the alleged
solicitation of Swisher acquired while acting as lead counsel in the civil TRO case and as cocounsel
in both the Hinkson Tax Case and the Solicitation Case. I assisted the two seasoned
criminal trial lawyers5 who represented Hinkson, both of whom appeared pro hac vice as lead
counsel in those cases.
10. Hinkson’s Sentencing in the Tax Case in 2004 Postponed. After Hinkson’s May 2004
conviction in the Tax Case for non-violent charges of (1) failing to file tax returns; (2)
structuring currency transactions; and (3) FDA misdemeanor product labeling violations
(mineral content of product found below label specifications) sentencing was postponed
5 In the Tax Case, Hinkson was represented by Sean Connelly and in the Solicitation Case, by Thomas Nolan.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 6 of 78
and combined with the Solicitation Case (the trial of which took place in January 2005).
The final combined sentencing on the Tax and Solicitation cases occurred in June 2005.
11. Hinkson, who did not Present a Risk of Violence to Anyone, was Convicted of
Crimes of Violence in the Solicitation Case. Hinkson recently (in January 2014) had a
Violence Threat Level Assessment performed at Atwater Prison, whereby it was
reaffirmed that he is a non-violent individual that presents no threat to others.
Nonetheless, in January 2005, Hinkson was convicted of three violent crimes (the
Swisher Counts) for soliciting the murder of the three designated federal officials (a
Judge, a Prosecutor and an IRS Agent) under 18 USC §373 based strictly on the false
accusations of Swisher as set forth herein.
12. Sentencing. At his June 2005 combined sentencing hearing, Hinkson was
condemned to what amounts to a life sentence of 43 years in prison (consecutive
sentencing of a 10 year term on the Tax Case and three 10 year terms on the Solicitation
Case, plus an upward departure of 3 years, of which he has served ten years, ten months;
he will be age 90 at completion). He was initially placed in solitary confinement in the
United States Penitentiary, Administrative Maximum Facility (ADMAX) in Florence,
Colorado unofficially known as the Alcatraz of the Rockies at the direction of Judge
Richard C. Tallman (a federal appeals court judge who sat by Ninth Circuit Court
designation as the trial judge in both the Tax and Solicitation Cases).
13. Hinkson’s Previous Political Involvement in Petitioning the Government for Redress
of Grievances Held Against Him. Seven years after the sentencing hearing Judge
Tallman finally articulated his deep-seated antagonism toward Hinkson based on previous
activity in petitioning the Government for redress of grievances and for his political
activism. The following disclosure was made by Judge Tallman as he described Hinkson
in his August 28, 2012 Order Denying Recusal Motion6 as follows:
(a) “…demonstrated pattern of vexatious conduct”;
(b) “…a long history of obstructing justice…”;
(c) “…repeated and persistent misconduct and abuse of the legal system…”;
(d) “…engage(ed) in protracted frivolous civil litigation…”;
(e) “…seeking to abuse the legal process and intimidat(ion) of federal
officials from performing their duties…”;
(f) “…filed…a number of administrative complaints…” and
(g) “…all [a]s a component of this general strategy to ‘game the system’…”
This rhetoric shows that Judge Tallman had-deep seated concerns about many extra-judicial
matters not a part of the Solicitation Case (some of his comments were related to well-taken
recusal motions involving other judges which had been filed by noted attorneys and were not
frivolous7). In any event, Judge Tallman’s statements listed above show that he had judicial
bias against Hinkson8 and reflect his inability to put such matters out of his mind. What
6 See Ex B-2, Order denying Recusal Motion dated August 28, 2012, pgs. 3-5.
7 Some of the recusal motions filed by Hinkson (that Judge Tallman found offensive) were submitted by Sean
Connelly, former Assistant United States Attorney who acted as Special Prosecutor in the Timothy McVey series of
cases, and is now a Colorado State Appeals Court Judge.
8 U.S. Philips Corp. v. U.S. Dist. Court for the Cent. Dist. of Calif., Case# 12-71696 (9th Cir. March 5, 2013).
Judicial bias was found: “The district judge had shown substantial difficulty in putting out of his mind his
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 7 of 78
Judge Tallman thought about Hinkson’s other administrative and court filings does not bear
on Hinkson’s guilt or actual innocence in the instant proceeding and a separate adjudication
would be required on those issues, which are extra-judicial. (Id., Ex B-2, Idaho Federal
District Court Case 1:04-cv-00196-RCT, Doc. # 17, filed 08-28-12 pgs. 3-5.)
14. Solitary Confinement was Retaliatory. During his five years of imprisonment in
ADMAX (home to some of America’s most dangerous criminals) Hinkson had virtually
no human contact, with meals shoved through a slot in the door of his 6’ x 8’ cell and
where the guards did not speak (except when taking him out of his cell in ankle and belly
chains). He used the time to learn Spanish and Russian and to design inventions for a
new generation of “green-energy” products. Retaliation is sign of judicial bias (see ¶ 34).
15. From Solitary Confinement to General Prison Population. The ADMAX staff learned
Hinkson was harmless and relocated him to the general prison population. He was then
transferred to the United States Penitentiary, Atwater, California, where he is housed at
present. He was recently removed from the Atwater general population and placed in
protective custody for his own safety after threats from a group of “white” inmates (who
practice racial discrimination) and believed they should receive what Hinkson paid to a black
inmate for legal research. The black inmate also protected Hinkson from prison violence.
Hinkson was removed from the general population in January 2014 as the “whites”
threatened to kill him if he declined their proposal to provide “legal research and protection.”
III ESSENTIAL ELEMENTS OF CASE
16. Summary of Hinkson’s Present § 2241 Case. The facts in this Affidavit present
evidence that supports Hinkson’s claim of actual innocence9; if considered with all
available evidence, the cumulative effect would be that, more likely than not, no
reasonable juror would convict Hinkson on the Swisher Counts (assuming the jury was
also informed about Swisher’s false testimony as to his military career.)10 The Swisher
Counts, which are the only charges for which Hinkson now stands convicted, are based
solely on Swisher’s testimony that, in “mid-January” 2003 (Tr. 1013, at 7) in a one-onone
meeting, in Hinkson’s private office on the second floor of the WaterOz factory
building, Hinkson solicited Swisher to torture-murder the Designated Federal Officials.
Swisher went to great lengths to build his credibility with the jury based on falsehoods
previously expressed views" where the Appeals Court found that this was a good enough reason to assign a new
judge.
9 Alaimalo v. U.S., 636 F.3d 1092, 1096 (9th Cir. 2010) “To establish actual innocence for the purposes of habeas
relief, a petitioner ‘must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable
juror would have convicted him.’"
10 The Swisher Counts are limited to solicitation for the murder of the Designated Federal Officials at a discrete
moment in time (at an alleged meeting between Hinkson and Swisher in mid-January 2003) which solicitation, if it
occurred, is within the scope of federal law. To avoid confusion, it should be noted that Swisher testified about
Hinkson supposedly soliciting him to murder many other people, none of whom were federal officials, including
Idaho District Court Judge George Reinhardt, former Idaho County Prosecutor, Dennis Albers and Hinkson’s exwife,
Marie Hinkson, a resident of Idaho County. Hinkson, in filing his §2241 Habeas Petition recognizes that there
is a connective thread between all of Swisher’s allegations, and for that reason this Affidavit briefly addresses all
murder-for-hire allegation by Swisher. Once the modus operandi of Swisher is understood, and his capacity to
weave extensive and elaborate tales is exposed, it is believed that the objective observer reviewing this case will be
convinced that Swisher added additional names to the list of possible victims in order to increase the seriousness of
his allegations to make it appear Hinkson was masterminding the murder of many and in order, in a very sick way,
to aggrandize himself and elevate his sense of self importance.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 8 of 78
and forgery to put Hinkson in prison in order to obtain a piece of Hinkson’s lucrative
WaterOz business. Swisher stated in public that he wanted to make sure Hinkson went to
prison for “the rest of his life” if Hinkson refused to pay his extortion demands as
discussed below. With Hinkson out of the way, Swisher believed (although mistakenly)
that he and his cohorts could win the TRO lawsuit which would give him control of
WaterOz.
a. Without Swisher There was No Case. In the words of Ninth Circuit Court
Chief Judge Alex Kozinski, “[w]ithout Swisher the Government had no
case.”11
b. Swisher’s 2008 Conviction. We now know what the jury in the Hinkson 2005
Solicitation trial never could have known, i.e., that Swisher was convicted of
perjury in 2008 for having told the same lies in July 2004 to the
Administrative Law Judge (“ALJ”) at a Veteran’s Administration Disability
Benefits hearing12 as he told to the jury in the January, 2005
Hinkson trial—i.e., that he was a decorated veteran, wounded in combat during a post-
Korean War secret rescue mission for POWs in North Korea.
c. Swisher’s Parallel Deceptive Schemes. The elaborate deceptive scheme that
Swisher presented to the VA in 2004 in order to obtain unearned benefits
mirrors the elaborate scheme Swisher presented in order to deceive the
Hinkson jury which caused Hinkson to be convicted of soliciting Swisher as a
‘hit-man,’ in Swisher’s purported murder-for-hire plot. Common to both
schemes was Swisher’s false claims of military combat experience in Korea;
the truth of which was that he had never set foot in Korea during his military
career and was never in combat never wounded and never killed anyone (see
¶16(j) and Miller Aff. Ex B-9).
d. Fake Military Heroism was Leverage in Both Cases. Swisher claimed VA
benefits he had no right to receive by leveraging his bogus claims of military
heroism, just as he leveraged those same fake heroism claims that cause the
jury to believe that Hinkson solicited him to torture-murder various people.
Both the ALJ in the 2004 VA case and the jury in the 2005 Hinkson case were
favorably impressed with Swisher’s military credentials and believed his false
testimony (i.e., he was awarded VA benefits and Hinkson was convicted.)
e. If Juror had Known, he would not have Voted to Convict. One of the
Hinkson jurors, in a post-trial affidavit, stated that he would not have voted to
convict Hinkson on the Swisher Counts if he had known that Swisher was
lying about his military career.13
f. Correction of Known False Testimony would have Prevented Hinkson’s
Conviction. If the prosecution had corrected Swisher’s false testimony, as it
was required to do (see fn 17 and 18), it is likely that the jury would not have
11 U.S. v. Hinkson, 611 F.3d 1098, 1099 (9th Cir. 2010).
12 US v. Swisher, 760 F. Supp. 2d 1215 (D. Idaho 2011) see also 360 Fed. Appx. 784 (9th Cir. 2009).
13 See Ex A-8, Aff. of juror Ben Casey.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 9 of 78
convicted Hinkson (especially considering juror Ben Casey’s resolute state of
mind; see Ex A-8).
g. Mistrial Justified. When the myriad of lies became apparent during the 2005
Hinkson trial, the trial court should have granted defendant’s motion for a
mistrial (see ¶ 34).
h. Applying the Cumulative Effect Doctrine. When all known facts are
considered together, the cumulative effect of the evidence supports the
proposition advanced by Hinkson’s §2241 Habeas Petition, which is that he is
actually innocent because he did not commit a crime and that no crime was
ever committed, except in Swisher’s furtive imagination.
i. Swisher’s Motive in Testifying against Hinkson. As shown below (see ¶
21(c)(iii)) Swisher’s principal motive was greed; he was seeking financial
gain by attempting to acquire an interest in WaterOz. Coupled with Swisher’s
greed was revenge because Hinkson would not agree to make extortion
payments to him.14
j. Obtaining Justice after Swisher’s VA Fraud took Years. The evidence
shows Swisher was highly skilled at forgery and extremely experienced at
concocting elaborate stories and giving false testimony in order to bolster
fraud schemes that were in his own self-interest. Swisher used perjury, forgery
and stolen valor claims as the tools of his trade, in order to steal VA medical
and disability benefits that involved expertly-crafted Government documents
that took the United States Marine Corps Commandant’s Office at least five
months (August–December 2004, see Ex B-13) to figure out and discredit.15
Over a dozen of Swisher’s deceptive statements were also presented at the
Hinkson trial (see ¶ 22(d)) which contributed to the jury’s high (but false)
regard for his credibility. It was two years after Hinkson’s conviction (in
2007) before Swisher was charged through the US Inspector General’s Office
with the VA-related crimes, and took another year to convict him for the theft
of over $150,000 in VA medical and disability benefits (see fn 12).
k. Report on Swisher’s Fraud Available During and After Hinkson Trial.
During the Hinkson trial, the prosecution obtained a copy of the “Dowling
Report” (see Ex B-5) which discredited Swisher’s rendition of his military
history and proved he did not serve in Korea and had lied during the 2005
Hinkson Solicitation trial. Although the prosecution tendered a copy of the
Dowling Report to Hinkson’s defense team in the second week of trial, the
Government failed to correct Swisher’s false testimony and false evidence that
had already been presented to the jury.
l. Court gives Jury “Limiting Instruction” as an attempt to Cover Up
Swisher Lies. The Court, in an attempt to cover up the effect that Swisher’s
lies had on the jury as to his Korean military combat experience eventually
14 See Ex B-1, Aff. Towerton ¶ 16; and Ex A-2, Aff. Hinkson ¶ 72.
15 See Ex B-5, Dowling Report of December 30, 2004 (issued four business days before Hinkson’s 2005 trial.)
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 10 of 78
gave the jury a limiting instruction16 and told them to “disregard” all
testimony concerning the Purple Heart and commendations, which by no
means undid or reversed the damage from the Government’s vouching for
Swisher as a combat veteran from Korea, nor did it negate the effect of the
other false testimony and evidence presented. The limiting instruction failed to
point out the untruthfulness of the entire “Swisher Story” and it specifically
allowed the jury to consider Swisher’s testimony on direct examination where
Swisher had falsely testified, as follows:
[Prosecutor Sullivan] Q: “Did Hinkson ever ask you about your service in the Armed Forces?
[Swisher] A: “Yes.”
[Sullivan
]
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: “He [Hinkson] asked if I had served in any combat situations. I explained – or told
him, “Yes.”
Q: “What else did he ask you about combat situations?”
A: “He asked if I had ever killed anyone.”
Q: “What did you say?”
A: “I told him, ‘Yes.’ He asked, ‘How many?’ I told him, “Too many.”
(Emphasis added.) (Tr. pg. 988 lns. 12-25 and 989 lns. 1-6)
To be clear, the prosecution brought up and discussed “combat” with Swisher on direct.
In this segment of direct testimony, Swisher ratified the Government’s theory that he was
a combat soldier. The prosecution represented to the jury in its opening statement that
Swisher was a “veteran” from “Korean combat.” Thus, Swisher’s direct testimony
ratified the prosecution’s statement and expanded on it by claiming that he had, prior to
being solicited by Hinkson, informed him that he had killed “many” in combat; which we
now know, unequivocally, was a blatant lie. Thus, the limiting instruction was ineffective
on its face because it did not deal with Swisher’s direct examination testimony or any
other false Swisher-testimony that also supported false evidence as well as fake-facts
relied upon by the Government in presenting its theory of the case to the jury.
m. Swisher’s Forging of his DD-214 (Military Discharge Document)
Officially Confirmed. During trial there were two official letters presented
that showed Swisher’s military claims were fraudulent, the ‘Dowling’ (Ex B-
5) and ‘Tolbert’ (Ex B-11) letters. In addition, after the verdict in the Hinkson
16 The trial court’s limiting instruction: THE COURT: “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
certainly are entitle to consider all of the rest of his testimony. Just everything from where I (sic) asked Mr. Nolan to
re-open, please strike that from your minds; and you are not to consider it as evidence in the case.” (Tr. 1131, 23-25
and 1132, 1-9.)
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 11 of 78
case was rendered, Hinkson submitted a Motion for New Trial to which an
affidavit from Chief Warrant Officer, W. E. Miller was attached (see Aff.
“CWO Miller,” Ex B-9). Miller was the individual at the National Personnel
Records Center charged with determining the authenticity of military
documents submitted by veterans, such as Swisher’s “replacement DD-214.”
CWO Miller’s Affidavit (Ex B-9) explains in detail why the Swisher
“replacement DD-214” was a forgery and why Swisher’s tale of serving in
combat in Korea and receiving war wounds as presenting to the jury was
fraudulent.
n. Hinkson’s Motion for New Trial Denied by Judge Tallman Despite Undisputed
Evidence that Swisher was a Liar and a Forger. The case law requires a new trial if
the false testimony and evidence used to convict a defendant was not corrected.17 But,
Judge Tallman, who participated in the Hayes decision (fn 17) denied Hinkson a new
trial.
17. Lack of Unobstructed Procedural Shot. Hinkson has never had an unobstructed
‘procedural shot’ at presenting his actual innocence claim, which was ignored when his
§2255 Habeas Petition was considered in 2012 by Judge Tallman. No opinion was
rendered applying the doctrines necessary to have a complete adjudication under the
actual innocence doctrine and the cumulative effect doctrine, nor did Judge Tallman enter
a ruling concerning the effect that correcting Swisher’s false testimony would have had
on the jury (because he did not recognize Swisher’s testimony as false, in fact, throughout
the trial, Judge Tallman continually made his personal views known, that he believed the
Swisher Story was trur, that Swisher was a combat veteran who served in Korea). Further,
Judge Tallman revealed judicial bias (see ¶ 13 above) by reflecting his deep-seated
antagonism toward Hinkson which obstructed his Constitutional right to procedural and
substantive due process. Judge Tallman also disregarded the Ninth Circuit standard set for
the materiality of the false testimony and his own higher standard for materiality18
because, by either standard, the false evidence met the materiality test and it was
imperative that it be corrected.
18. No Reasonable Juror Would Have Convicted. Reducing the above to its essence, the
cumulative effect doctrine is essential to Hinkson’s claim of actual innocence, which is that
no reasonable juror would have convicted him based on the “Swisher Story” if all the
17 Alcorta v. Texas, 355 U.S. 28, 32 (1957) constitutional due process requires a prosecutor to correct false
evidence when it appears; see Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) the Government violates
constitutional due process when, although not soliciting false evidence, it allows false evidence to go uncorrected
when it appears.
18 Hayes v. Brown at 979 (9th Cir. 2005) see also Judge Tallman’s dissent on materiality; where the Tallman dissent
in Hayes suggests a different materiality test be applied than the one used by the majority in Hayes, which is, despite
the false evidence, did the defendant receive a fair trial and was the verdict worthy of confidence. Hayes, at 989-90.
The facts in this Affidavit demonstrate that Hinkson did not receive a fair trial, which eliminates the first prong of
the Tallman analysis. To satisfy the second prong, Judge Tallman would have the reviewing court ask the question
whether, in the context of all the evidence, there was a reasonable likelihood that the false evidence could have
affected the jury’s judgment. (Id.) In the Hinkson case, the Affidavit of Ben Casey (Ex A-8) shows empirically that
the jury’s verdict would have been different if the false evidence about Swisher’s military history had been
corrected. Thus, using Judge Tallman’s higher standard, the evidence presented in this Affidavit is material and
supports Hinkson’s contention that no reasonable juror would have convicted him.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 12 of 78
evidence had been considered, and the false evidence contained therein had been corrected
by the prosecution during the trial. Although the Government did not elicit the dozen lies
from Swisher on direct examination (for the dozen lies, see ¶22(d), which came out on cross
examination), the prosecution opened the door by vouching for his credibility based on
military service in Korea as presented in its opening statement (see ¶22(a)). Then on direct
examination the prosecutor asked about “combat” and Swisher testified that he had
previously informed Hinkson about killing “many” in combat (see ¶16(l)). The objective
reviewer now sees that Swisher’s criminal conviction proved he was never in combat. Under
US Supreme Court and Ninth Circuit case law, the prosecution had a duty to correct the false
testimony from its own witness whether or not the dozen lies were elicited by the prosecution
or not (see fn 17 “…the Government violates constitutional due process when, although not
soliciting false evidence, it allows false evidence to go uncorrected when it appears”).
19. Swisher’s Lies Inextricably Connected to the Government’s Case. Swisher’s lies about
his military valor were inextricably connected to the Government’s case, as was
demonstrated when the prosecution vouched for Swisher as a Korean combat veteran in its
Opening Statement. We know now, as the prosecution knew then, that the opening statement
was based on a complete falsehood (see fn 12 and ¶ 22(a) below). Given that Swisher was (a)
vouched for by the prosecution in its opening statement, (b) wore a Purple Heart medallion (a
crime) throughout his testimony asserting that he was a wounded veteran of a foreign war, (c)
testified he told Hinkson he killed “many” in combat in his direct examination, (d) told the
jury a dozen lies (see ¶ 22(d)) about a secret mission that never occurred, (e) presented a
forged DD-214 (Government document) and (f) informed the jury the forged document was
‘certified’ by the Commandant’s Office of the US Marine Corps in Washington D.C., a mere
limiting instruction (see fn 16) from the court to “disregard” the testimony about the Purple
Heart and commendations was not enough to wash the effect from the juror’s minds as
proven by juror Ben Casey (see Ex A-8). Both the US Supreme Court and Ninth Circuit
Court held that justice demands that the prosecution must correct false evidence (see fn 17
and 18).
II. OVERVIEW AND COMPREHENSIVE
STATEMENT
20. New Evidence. The new evidence supporting this §2241 Habeas Petition is Swisher’s
2008 conviction for perjury, forgery, theft and stolen valor, establishing that Swisher lied
under oath, pretending to be a wounded and disabled veteran from post-War combat in
Korea on a secret mission to rescue American POWs in order to obtain over $150,000 in
Veteran’s Administration medical and disability benefits to which he was not entitled.
a. Credibility Based on Lies Used to Convict Swisher. Using the same lies
that he used in the VA case, Swisher established virtually unassailable
credibility as a Korean combat hero in the eyes of Hinkson’s 2005 jury. The
full extent of Swisher’s lies are set forth in ¶ 22(d) below. Since Swisher was
subsequently convicted of perjury for testifying as to these same lies, it is
important to chronicle them for the objective reviewer in this Affidavit. In
order to view the cumulative effect of all the evidence, whether previously
excluded, actually presented or new evidence that has not yet been considered
to see whether Hinkson meets the Alaimalo standard that no reasonable juror
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 13 of 78
would have convicted him based on a full account of the “Swisher Story;”
provided the false evidence is corrected (see fn 17 and 18) it is necessary to
look at all of the available evidence.
b. Limiting Instruction Not Enough. Further, as detailed in ¶ 19 above,
Swisher’s lies were inextricably connected to the Government’s case, and
given his direct testimony about killing “many” in combat and illegally
wearing a Purple Heart medallion throughout the entire time he presented
himself before the Hinkson jury, a mere limiting instruction to simply
“disregard” the testimony regarding military commendations (see fn 16) was
not enough to wash the effect of Swisher’s lies about being in combat in
Korea from the juror’s minds (see Aff. Casey, Ex A-8).
c. Swisher Violated Criminal Law. The wearing of the Purple Heart, combined
with Swisher’s tale that he had previously informed Hinkson he had killed
“many” in combat (see ¶ 16(l)) as a part of his falsified military career,
together with his forged ‘replacement DD-214’ and the dozen lies Swisher
told about his fabricated military history were each separate criminal law
violations that needed to be corrected by the prosecution (see fn 17) to take
away the effect that the false testimony had on the jury, rather than merely
relying upon a inadequate limiting instruction (see fn 16) that only requested
the jury “disregard” part of the offending litany of falsehoods. A full statement
as to what the jury must consider as false testimony was needed.
d. Courtroom Became a Crime Scene. Swisher’s wearing of a Purple Heart violated 18
USC §704(a) and was a crime, known as stolen valor. It along with all of his other lies
constituted felony perjury before a federal tribunal under 18 USC §1621. The
“replacement DD-214” was the felony crime of forgery. Swisher’s law violations
converted the Courtroom into a crime scene. Swisher’s claim to have killed “many” in
combat violated 18 USC 1515(a)(3)(A) knowingly making a false statement; submitting
his “replacement DD-214” violated subsection (C) of 1515(a)(3) as knowingly submitting
a writing that is forged. The prosecutor’s opening statement violated 18 USC 1515(a)(3)
(A) and the statement by Swisher that his “replacement DD-214” had been “certified by
the Commandant’s Office” of the USMC in Washington D.C. when it had not, was
perjury under 18 USC §1621. It was prosecutorial misconduct for AUSA Sullivan to
claim later in the proceeding that he never raised “combat” on Swisher’s direct, which
was a lie (compare Tr. 988, ln 25 Sullivan in a direct examination question to Swisher:
“Sullivan Q: What else did he ask you about combat situations”; then, said Sullivan to the
Court, at Tr. 1114, ll 21-22: “The Government never went in on its direct about …
combat”). (Emphasis added).
e. Swisher, as the Government’s Star Witness, Subsequently Went to Prison for
Perjury, Forgery, Theft and Stolen Valor, all part of Falsely Testifying to the VA of
the Same Fake Heroic Military History Presented to the Hinkson Jury. In 2008,
Swisher was convicted of perjury, forgery, theft of VA medical and disability benefits19
and stolen valor and went to prison for telling the same lies used in the Hinkson trial, to
19 US v. Swisher, 760 F. Supp. 2d 1215 (D. Idaho 2011) see also 360 Fed. Appx. 784 (9th Cir. 2009).
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 14 of 78
the ALJ at the VA Disability Benefits Hearing. (See ¶ 22(d).) The lies he told to the
Hinkson jury, were buttressed by the prosecutor’s vouching20 based on the prosecutor’s
claim that Swisher was a Korean combat veteran. In so doing, the prosecution lent its
prestige to enhance Swisher’s credibility by clothing him as a military combat hero. Once
on the pedestal of a military combat hero, Swisher’s tale of supposedly being solicited by
Hinkson to torture-murder the Designated Federal Officials was virtually impossible to
rebut, that is until the fraudulent ‘cloak’ of a military hero could be removed and the false
testimony corrected.
f. Fraud Permeated the Government’s Case. By relying upon Swisher as the sole
source of all information regarding the Swisher Counts (alleging Hinkson’s
solicitation of torture-murder of federal officials) the Government allowed fraud to
permeate its case; which fraud has now been conclusively proven by Swisher’s 2008
conviction; i.e., the new evidence.
g. Cumulative Evidence Presented in this Affidavit. Facts are presented in this Affidavit
regarding the prosecution’s theory that were either (a) not available to the Hinkson petit
jury; (b) available but excluded at trial; or (c) have come to light since the 2005 verdict,
all of which bear upon Hinkson’s claim for Habeas relief under the actual innocence
doctrine of 28 USC §2241. Under the Cumulative Error Doctrine in the context of a
§2241 proceeding, a reviewing court looks at all evidence, whether admitted or not, and
the effect of all rulings that frustrated efforts to develop a defense through exculpatory
evidence; basically, anything that could have been raised to discern if multiple errors
accumulated to deprive a defendant of a Constitutionally fair trial.21
e Government’s Theory in Prosecuting Hinkson Required Eight Fundamental
Elements. The Government’s theory of the case with regard to the “Swisher Counts”
rested on the jury trusting and believing the following eight fundamental facts. (If one
had been disproven, it is likely the prosecution would fail, because the basis of Swisher’s
murder solicitation allegation was ‘wafer-thin.’)
i. Profiling. Hinkson needed to fit the profile of a violent ‘mastermind’
soliciting the murder of many people;
ii. Credibility. Swisher needed to be viewed as credible based on his heroic
military history;
iii. Opportunity. Swisher needed to show he had the opportunity to be solicited by
Hinkson in a close, personal relationship as a “best friend;”
iv. Experience: Swisher needed to be perceived by the jury as ‘experienced,’
having killed “many” in combat and having conveyed that message
to Hinkson;
v. Ability: Swisher had to possess the ability to perform as a ‘hit-man based
on strength, health and stamina;
20 US. v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) Vouching places the prestige of the Government behind a
witness through personal assurances by the prosecution of the witness’ veracity and is considered to be prosecutorial
misconduct. US v. Weatherspoon , 410 F.3d 1142 (9th Cir. 2005)
21 Chambers v. Miss., 410 US 287, 302-03 (1973); Perle v. Runnels, 505 F.3d 922 (9th Cir. 2007); and see Killian v.
Poole, 282 F.3d 1204 (9th Cir. 2002) “Even if no single error were prejudicial, where there are several substantial
errors, their cumulative effect may nevertheless be so prejudicial as to require reversal.”
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 15 of 78
vi. Compensation: Swisher had to have been (or was to be) compensated by Hinkson
for torture- murdering various people;
vii. Motive: Hinkson had to have a motive to want his “tormentors” torturemurdered;
and
viii. Solicitation: Hinkson’s solicitation of Swisher had to occur at a certain time
and place.
21. Element 1 –Profiling – Preface - Definition of Terms:
A. Violent Mastermind. Below is a table showing the names of the confidential
informants used to accuse Hinkson of murder-for-hire. On seven occasions, Hinkson,
a non-violent person (per USP Atwater Threat-level Assessment, ¶ 15, above) was
accused of plotting to murder others. It was essential to the Government’s case to
create for the jury a picture of a mastermind, repeatedly plotting the violent death of
others in order for Swisher’s accusation to be believed by the Hinkson jury. The
objective followed the old adage, ‘where there’s smoke, there’s fire.’ The
Government’s approach by sponsoring seven CI’s, created enough complexity and
confusion that it would be difficult to unravel all the accusations. By blaming
Hinkson for multiple murder for hire plots, it was the Government’s plan that a jury
would likely pick at least one and convict. Some of the plots fell short of
prosecutorial indictment standards and had to be abandoned. Others, were part of the
Indictment but dismissed. One became F.R.E. 404(b) evidence at trial. Swishers
accusation involving the Designated Federal Officials formed the basis for Hinkson’s
conviction in the Solicitation Case. It was the FBI’s modus operandi to paint Hinkson
as a violent mastermind killer in enough murder-for-hire schemes that it improved the
odds of a conviction. All but the Swisher Counts were proven false.
B. Six Times Hinkson was Proven Actually Innocent. Hinkson’s actual innocence was
proven six times in the seven ‘trumped-up’ schemes listed below (with the exception
of the Swisher Counts) all others were (a) proven to be false reports; (b) dismissed by
the Court; or (c) abandoned by the prosecution.
Confidential
Informant
Claim End Result of Accusations
1. Raff Murder-for-Hire, Pre-Indictment Fictitious Crime – Abandoned
2. Bates Murder-for-Hire, Two Counts Fictitious Crime – Dismissed
3. Harding Murder-for-Hire, Six Counts Fictitious Crime – Dismissed
4. Swisher Backwoods Shooter-Murder Contract False Report - Per Sheriff’s Investigation
5. Croner Jailhouse Murder-for-Hire Fictitious Crime – 404(b) Evid-Abandoned
6. Nicholai Jailhouse Murder-for-Hire Fictitious Crime – Abandoned
7. Swisher Torture Murder-for-Hire, Three Counts Convicted (Issue: Actual Innocence)
a. Raff Accusations. At the time I was retained as counsel for Hinkson in December 2003, he
was being held in federal custody on a detention order in the Tax Case, which was based on
murder-for-hire allegations raised by Confidential Informant Mariana Raff from Idaho
County in which she informed SA Long that Hinkson, while on a 2001 business trip to
Mexico, solicited her two brothers (who lived in Mexico) to murder federal officials in Idaho.
Ms. Raff (a repeat felony offender) claimed this incident to be a serious threat to the safety
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 16 of 78
and security of federal officials in Idaho because, as she supposedly put it, they, (her
brothers) had “done this before.”
i. No Investigation for 15 Months-Then Hinkson Cleared. SA Long did
not investigate Raff’s allegation for over a year22 which was
unreasonable, a dereliction of duty and leads the objective reviewer to
believe that if the threat had been legitimate, he would have
investigated it immediately to protect the federal officials who
allegedly were the target of the purported murder plot. The Raff
scheme was disproven when I called Raff’s brothers and discovered
they were credible business men, who were irate that their sister had
falsely accused them (they reported she was a known liar who
frequently contrived stories for her own personal financial advantage).
When they learned they were the target of an international terrorist
investigation, the Raff brothers stated that if FBI SA Long did not
immediately clear them of any wrong doing, they would seek a
diplomatic resolution of the matter. SA Long immediately cleared
them as suspects, which cleared Hinkson as a suspect, which he easily
could have done 15 months earlier.
ii. Raff’s False Accusations Caused 15 Month Incarceration. Ms. Raff
did not testify about the alleged plot at Hinkson’s detention hearing,
but rather, SA Long recounted the fabricated “Raff Story” and it was
the basis for Hinkson’s initial 15-month detention (which commenced
April 4, 2003 and continued until another detention order was entered
in the Hinkson Solicitation Case on July 7, 2004).
iii. Government Abandons Raff Accusations-Hinkson Actually Innocent.
Because the fraudulent story was eventually discredited and
abandoned by the Government. It was not used as a Count in the
Solicitation Case Superseding Indictment or brought up as 404(b)
evidence at the Hinkson Solicitation trial, which shows that the
Government knew that Hinkson was actually innocent of any
wrongdoing in reference to Ms. Raff’s accusations.
b. Bates and Harding Accusations. It is significant the Ann Bates and J.C. Harding’s false
accusations made up eight of the eleven Counts of Hinkson’s Superseding Indictment but all
22 SA Long has never explained the delay that lasted over a year in investigating the Raff Story, but if he truly
suspected Ms. Raff’s Mexican-national brothers of having “done this before” he should not have waited to find out
because there were unsolved murders of two Assistant US Attorneys pending at the time, one in Baltimore and one
in Seattle. As is turned out, Ms. Raff’s brothers had not recently traveled to America and were not and had not
previously been involved in international terrorism or the murder of federal officials and never had a conversation
with Hinkson about plotting to murder federal officials in Idaho. The only explanation is that the year plus delay in
investigating this crime is that it fulfilled the “agenda” of keeping Hinkson in pre-trial detention. For SA Long, not
investigating was supported by a commonly used government shield from taking responsibility known as: ‘plausible
deniability’…which means that, so long as he avoided doing the actual investigation, he could continue claiming
that the Raff Story presented a credible threat to federal officials and was a valid basis to keep Hinkson incarcerated,
then he could claim actual ignorance of the truth. Once he knew the truth, of course, he had to discredit, reject and
abandon the Raff Story as the basis for charging Hinkson because the Raff brothers proved the story was a fraud.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 17 of 78
were dismissed; again proving Hinkson’s actual innocence. Both Bates and Harding were
confidential informants whose handler was also SA Long, and both claimed that they were
witnesses to murder-solicitations by Hinkson when they were guests in his home for a short
period of time in the first quarter of 2003. Even though their ‘stories’ were similar to each
other in that they both alleged that they witnessed Hinkson offer money to kill federal
officials, their stories were inconsistent in several material respects and thus, the jury simply
did not believe them.
i. Hearsay, ‘He Said – She Said’ Accusations Insufficient. The collective common wisdom of
the jurors discerned that when the actus reus and mens rea were combined derived from
the same hearsay source, Bates and Harding, who lacked credibility and their stories were
inconsistent, the jury could not convict. When there was no corroboration that a crime
occurred, no physical body of a crime (no corpus delicti) and the only evidence of a
crime was the supposed hearsay statement by Hinkson’s words alone, that means in
technical terms the actus reus and the mens rea of the crime were merged. Harding’s
father came from Southern California to testify that his son was a chronic liar who could
not be believed as to anything he said and Bates changed her story making her
unbelievable. Because there was no independent corroboration and the credibility of
Bates and Harding as prosecution witnesses was the paramount deciding factor, the jury
could not convict on these eight Counts. Here, the jury recognized that when the
witnesses had no credibility and the entire case depended on what the witnesses recalled
of what the accused said, and their statements were inconsistent, there was no foundation
for a guilty verdict; hence, no guilty verdict was rendered on the eight Bates and Harding
Counts.
ii. Analogy to Swisher Counts. By analogy, no guilty verdict should have been entered with
regard to the Swisher Counts which presented the same scenario to the jury. The
difference was Swisher’s credibility as a “Super Hero” vouched for by the Government.
c. Swisher Accusations-“Backwoods” Shooting. Swisher’s claim made during trial that
Hinkson put out a “contract” to have some unknown person shoot him while he was at his
gold mine in the backwoods of Idaho (Tr.1069, ln. 12) was contemporaneously investigated
by Idaho County Sheriff’s Deputy Herbert Lindsey (now retired) who found it to be another
false report by Swisher (see Ex B-4) who had a long history of making false reports.23
23 Swisher’s History and Reputation as a Liar. Not only did Swisher lie to the Grand Jury, in 2002 stating that
he had been wounded as a US Marine combatant at the end of the Korean War (2002 Grand Jury: Answer: [Swisher]
“I’m an old disabled veteran and that was all caused by a hand grenade at the end of the Korean War.” (Swisher
grand jury testimony, April 16, 2002, pg. 4, lines 21-23.) Answer: [Swisher]: “... I guess that my lower spine from
the grenade is pretty fouled up....” (Swisher grand jury testimony, April 16, 2002, pg. 14, lines 22-23.) Swisher also
had a reputation in his community for being untruthful that spans a period of over 35 years. By 1997, when I left the
Idaho County Prosecutor’s Office, Swisher, who had lived in Idaho County for over 20 years at that point, was well
known among law enforcement personnel in Idaho County as a habitual liar who frequently made false reports to
authorities. Among many other things, he was known to have defrauded numerous doctors from California out of
hundreds of thousands of dollars of investments over a phony gold-rendering process that he invented; he had told
inconsistent stories about the disappearance of his gold-mining partner in the 1980s, whom Swisher said was “lost,”
possibly underground, which made him a person-of-interest, but since no body was ever found, the case did not
result in a criminal prosecution. By 2004, Swisher was generally regarded by his community as untruthful in
virtually all his dealings. He also was known as a child molester since the 1980 child-rape case involving his own
daughter and two step-daughters, who were all under the age of ten when violated. Swisher escaped conviction in
that case because, as attorney Dennis Albers, then the Idaho County Prosecutor, said to me, he was simply “chatting”
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 18 of 78
Deputy Lindsey said in his Affidavit, “[i]t was my opinion Swisher manufactured the whole
story.” (See Ex B-4, Affidavit of Deputy Lindsey.)
i. Swisher Gets Away with False Reports. I have observed over the years that Swisher often
used his influence with one branch of law enforcement for his own protection from
adverse action by another. In this instance, Swisher used the imprimatur of SA Long to
legitimize his false “backwoods shooter” report not prosecuted in Idaho County as false
reporting (Ex B-4)
ii. Investigation Shows False Report. Deputy Lindsey’s official incident report attached to
his Affidavit (Ex B-4) noted that while the event supposedly occurred on August 31,
2004, Swisher didn’t report it to the Idaho County Sheriff’s Office until a week later
(September 7, 2004) because, as Swisher stated, he needed to consult with SA Long in
the interim. Swisher blamed Hinkson, who was incarcerated at that time 200 miles away
in Boise under a detention order. It is obvious that Swisher concocted the story with the
assistance of his FBI handler. Deputy Lindsey made a finding that the incident was
baseless and it appeared that Swisher himself shot through the walls of his own metal
outhouse with a small caliber hand gun so that he could use a welder’s rod to fit through
the holes and establish the trajectory of the bullet. Swisher was then able to locate the
place where he (the shooter) stood when the trigger was pulled but there was no disturbed
ground, making it obvious to Deputy Lindsey that the shooting was self-inflicted. One of
Deputy Lindsey’s key issues was that Swisher had no concern for his safety, since
Swisher and his buddy who were at the gold mine were expecting their wives to arrive for
a social event that afternoon and Swisher had no safety plan to avoid being the target of a
repeat shooting. Logic would suggest that if someone was hired to shoot Swisher and
had missed him, that person might try again. Neither Swisher nor anyone else whose life
was threatened by a shooting would have waited until September 10, 2004 to meet with
local law enforcement regarding such a murder-attempt, making this incident another
example of Swisher getting away with making a false report to the authorities. It also
stands as another instance of Hinkson being actually innocent.
d. Croner’s Accusations. The evidence is clear that, shortly before the Hinkson
trial, the FBI concocted the Croner ‘jailhouse murder-for-hire plot’ which was
refuted by four eye witnesses. Again this was an attempt to promote a violent
profile for Hinkson. It was a “late-breaking” accusation and came
immediately before trial, involving yet another unfounded, illogical and
fabricated murder-for-hire plot. For this purpose, the FBI engaged the services
of Chad Croner (a felon looking for a ‘break’ for himself and his mother, both
of whom had pending criminal charges) who happened to have been an inmate
at the Ada County Jail, in Boise, Idaho at the same time as Hinkson.
i. Witnesses Proved No Solicitation Occurred. The “story” was that
Hinkson solicited Croner, who was his cellmate, to murder a list of
people. The allegation was immediately rebutted by the four other
cellmates that were housed in the six-person cell, who provided their
statements and affidavits showing that Hinkson spoke with Croner
with one of the jurors in the court hallway during a trial recess, which caused a mistrial. After the mistrial, Albers,
who was reprimanded by Idaho’s Supreme Court for jury tampering, never re-set the case against Swisher for a new
trial date, which means Swisher got off scot-free.
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 19 of 78
only once in the few days Croner was placed in the cell, and only had a
brief discussion with Hinkson regarding a tax-related matter. The
third-party witnesses testified that there were no other conversations
between Hinkson and Croner.
ii. Witnesses Observed Everything. They stated that the rest of the time
Croner was in the cell that he sat ‘cross-legged’ on one of the upper
bunks, staring across the room and spoke to no one, and that because
they were in such close quarters (three bunk beds in one small cell)
they could at all times overhear the conversations between any of the
six cellmates. They specified that neither Croner nor Hinkson ever
talked about killing anyone or about murder-for-hire, and if it had of
happened, they would have heard it and stopped it immediately
because of their fear of being implicated as accessories. The thirdparty
witnesses also reported that the FBI pulled Croner out of the cell
regularly during that period to talk to him (giving the impression they
were “up” to something.)
iii. Croner’s Testimony Worthless. While the Government presented
Croner as a 404(b) witness of Hinkson’s “other bad acts” at his 2005
trial, his testimony was worthless because of (a) the testimony of the
other four cell-mate witnesses; and (b) because a venirman in the
original jury pool who was from Croner’s hometown, who recognized
his name when the witness list was read, and although that prospective
juror was excused, he came back to testify that Croner was known in
their small community as a liar an nothing he said could ever be
believed. The Croner story is another example of Hinkson being
actually innocent.
e. Nicolai Accusations. Because I was able to obtain statements and affidavits
from the third-party witnesses who debunked the Croner accusations, the
Government went to one of them, Frank Nicolai and had him accuse Hinkson
of plotting to murder 23 people on a list, one of whom was Judge Tallman, the
sitting judge. Nicolai eventually recanted his statement, but it raised conflict
of interest issues. The statement was a bit garbled, but implied that I, as
Hinkson’s attorney, plotted with my client and Nicolai for the murder of the
people named. Even though this was a false accusation, I filed a Motion to
Withdraw as counsel. Judge Tallman entered findings that neither he nor the
Government ever believed the allegations were true, but that as a result of
those allegations, the Court found that I had an irreconcilable conflict of
interest with my client and new counsel substituted into the case. (See Ex B-
14). These accusations were abandoned which is another example of
Hinkson’s actual innocence.
f. Failure to Show Hinkson was a Violent Mastermind. In summary, the
Government failed miserably in its attempt to profile Hinkson as a violent
mastermind of murder because of multiple other accusations, all of which
were shown to be false and fictitious crimes and can be seen in retrospect as
evidence of a pattern by the Government to repeatedly falsely accuse Hinkson
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 20 of 78
when he was actually innocent. It also shows that the Government uses illegal
methods to remove from a case an attorney who sees through their false
accusations and is willing to call them on their unlawful activities; i.e.,
governmental misconduct.
22. Element 2 – Credibility – The essence of Swisher’s claim to credibility was military valor
that elevated his credibility to the level of a “Super-Hero;” as one presumed to be above lying,
deceit and deception. Swisher’s heightened credibility came from vouching by the prosecution.
a. Swisher Story. Swisher concocted an elaborate false
tale of being a Korean combat veteran which was
supported and vouched for by the prosecution in its
Opening Statement; “Swisher Story.” The Swisher
Story solidified him as a credible witness, and in
essence, put him on a ‘pedestal’, which resulted in the
jury believing whatever he had to say about Hinkson
soliciting him to murder the Designated Federal
Officials.
b. Conviction would have Defeated Swisher Story.
Swisher’s 2008 conviction for perjury, forgery, stolenvalor
and for theft of benefits from the Veteran’s
Administration should have eliminated any reliability
that Swisher’s trial testimony would have had against
Hinkson when he used the same “Story” as in the VA
case. The story against Hinkson unfolded in four steps:
i. Step 1: the Government vouched for Swisher during its opening statement when it said,
“Mr Swisher…was…a Combat Veteran from Korea during the Korean conflict [Korean
War].” (Emphasis Supplied.) (See Ex B-3, Prosecutor’s Opening Statement, 2005 Trial
Tr. Pg. 291, lns. 16-17).
[Counterpoint: Even though the prosecution became aware, during trial, of official
Government-issued letters24 proving that its three above statements were false (i.e.,
Swisher had never been in ‘combat,’ never went to Korea, thus was not a ‘veteran from
Korea’ and never served in Korea ‘during the Korean conflict’) the prosecution failed to
correct its false statements during trial. If there was any doubt about the falsity of these
statements, Swisher’s 2008 conviction (fn 21) absolutely proved these three statements
were lies.]
ii. Step 2: During his direct testimony, Swisher stated he had told
Hinkson that he had killed “many” while in combat (see ¶ 16(l)),
which, under the prosecution’s theory, was Hinkson’s basis for
selecting Swisher as a ‘hit-man.’ We know that the prosecution was
aware, at least by the middle of Hinkson’s trial, based on the two
Government-issued letters (fn 3) that Swisher had never seen combat,
nor had he ever gone to Korea, and he did not serve in the Korean
24 The two Government issued letters that came to light during trial are: the “Tolbert Letter” (Ex B-11) and the
“Dowling Report” (Ex B-5).
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 21 of 78
conflict. The prosecution also knew that Swisher lied to the 2002
Grand Jury testifying that he had been injured “at the end of the
Korean War”25 when he had not. However, in order to perpetuate the
prosecution’s theory, Swisher told the 2005 Hinkson jury that he had
previously informed Hinkson, that he had killed “many” people in
“combat,” when he had never been in combat or in Korea. (One may
ask how the jury could discern the truth, if the prosecution’s case was
based ‘one lie upon another.’ Hinkson’s testimony was that he did not
hear of, or know about, Swisher’s (supposed) military history until his
2005 trial, see Hinkson Aff. Ex A-2, ¶ 33.) Therefore, not only was
Swisher lying about his secret mission rescue POWs in Korea, it
follows that he also lied about having told Hinkson he had killed
“many” in combat, because he never was in combat. The prosecution
expected Swisher to be believed when he said he told Hinkson he
killed “many” in combat, when it became apparent that Swisher lied
about being in combat and the prosecution then took the position that it
didn’t matter whether Swisher lied about his military history, its what
Hinkson thought about his military history that counts.
[Counterpoint: if the jury had been told the truth that Swisher was never in Korea and
never in combat and never killed anyone in a military battle, then the jury likely would
have concluded that his trial testimony was full of lies about his military career and likely
was full of lies about the murder-for-hire solicitation. The credibility of both witnesses,
Swisher and Hinkson, was crucial to the outcome of this case, and the jury only heard it
through the lense of Swisher’s elevated status, as promoted by the prosecution. Swisher
prevailed because he had been ‘cloaked’ with the “Super-Hero” status by the prosecution,
which raised the reliability of his testimony several notches above Hinkson. Had the
prosecution corrected the false testimony, as it is required to do by US Supreme Court
and Ninth Circuit law (see fn 17), Swisher would have been exposed as a liar and it
would have been, more likely than not, that no reasonable juror, possessed of all the facts
would have convicted Hinkson.]
iii. Step 3: Swisher elevated his credibility even further and perpetuated
his image as a wounded “veteran from the Korean conflict” by
wearing the Purple Heart medallion, which constantly testified to the
jury as he was on the witness stand that he was a wounded veteran
from a declared foreign war. Swisher committed a crime by wearing it
on the lapel of his black leather coat on the witness stand (with a white
background and purple coloring, it stood out like a neon sign, and was
a crime in violation of 18 USC §704(a)). If he had been in the Korean
War and had been injured in battle (as he said he was in his 2002
Grand Jury testimony, see fn 34) he would have been entitled to wear
25 Swisher lied to the Grand Jury, in 2002 stating that he had been wounded as a US Marine combatant at the end
of the Korean War when he was age 15. Swisher (DOB 01-13-37): “I’m an old disabled veteran and that was all
caused by a hand grenade at the end of the Korean War.” (Swisher grand jury testimony, April 16, 2002, pg. 4, lines
21-23.) Answer: [Swisher]: “... I guess that my lower spine from the grenade is pretty fouled up....” (Swisher grand
jury testimony, April 16, 2002, pg. 14, lines 22-23.)
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 22 of 78
the Purple Heart (if actually awarded to him). When in trial, Swisher
changed his story from being in the Korean War (see ¶ 24, 2002 Grand
Jury) to being injured in a post-War mission (see ¶ 22(d)), he made
himself ineligible to wear the Purple Heart. Once he asserted that he
was on a post-War mission, he disqualified himself from entitlement to
wear the Purple Heart because the Purple Heart is only for individuals
who have been injured in an officially declared war and Swisher did
not enter the US Marine Corps until after the 1953 Armistice when the
Korean War was over (Swisher’s date of birth is January 13, 1937,
making him sixteen years old at the end of the Korean War).
[Counterpoint: From his colloquy with the trial court, AUSA Michael Sullivan, chief
prosecutor in the Hinkson Solicitation Case, said he knew that Swisher was wearing a
Purple Heart medallion prior to Swisher mounting the witness stand on January 14, 2005.
Because the prosecutor knew his witness was wearing the Purple Heart and knew he was
not claiming to be an actual Korean War veteran (because he had been forced to change
his story due to his age) then it was a double law violation for Swisher and the prosecutor
to enable Swisher to perpetuate the fraud, and for Swisher to have worn the medallion
illegally with the knowledge and consent of the prosecutor, as that was the crime of
Stolen Valor. Thus, prosecutor Sullivan was aiding and abetting this crime when he said
(on the record) that the Purple Heart medallion was “…a little…something stuck in his
lapel.” (Tr. pg 1115, lns 10-13.) Minimizing one of this nation’s greatest honors given to
a wounded veteran of a foreign war, he called it “a little..something stuck in his lapel.”
which was to say, ‘the Purple Heart is insignificant’ and ‘don’t look at what is really
going on here.’ It was an attempt to ‘cover-up’ a crime, and AUSA Sullivan was an
accessory before, during and after the fact.]
iv. Step 4: While it is true Swisher did not testify about the Purple Heart
award on direct examination, he wore the Purple Heart which silently
conveyed a message of heroism and credibility while he testified
(prosecutor Sullivan made the following false statement: “The
Government never went in on its direct about winning medals or
combat.” Tr. 1114, lns. 21-22. It was the “or combat” that was a direct
misrepresentation, because the record is absolutely clear that the
Government asked Swisher about what “combat situations” were
talked over with Hinkson, this was the question and answer:
Sullivan Q: “What else did he ask you about combat situations?”
A: “He asked if I had ever killed anyone.”
Q: “What did you say?”
A: “I told him, ‘Yes.’ He asked, ‘How many?’ I told him, “Too many.”
(Emphasis added.) (Tr. pg. 988 lns.19-25 and 989 lns.1-6).
c. Forged Document Authorized Swisher to Wear Purple Heart. Swisher’s testimony that he
had killed “many” in combat on the Government’s direct examination was a lie, because he
was never in combat. On cross-examination, when Swisher (falsely) testified that he was
authorized to wear the Purple Heart, he simultaneously pulled from his pocket a forged
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 23 of 78
government document as “proof that he was entitled to wear it” (i.e., his (so-called)
“replacement DD-214”, his discharge paper). When questioned about his document, he
proceeded to tell a dozen lies.
d. Swisher’s Dozen Lies. Swisher then proceeded to perjurer himself further by telling
the following dozen lies about his fictitious military history:
(1) that he had authority to wear a Purple Heart medallion [false] (id., Tr. Pg. 1115, lns. 7-
9);
(2) that he had earned the right to wear a Purple Heart while serving in Korea [false] (id.
Pg. 1116, lns. 16-25 and Pg. 1117, ln. 1);
(3) that he served in combat, not during the Korean War (contrary to his testimony before
the 2002 Grand Jury) but following the Korean War [false] (id. pg. 1117, lns. 2-4);
(4) that he had been engaged in the field of battle as a part of a special Marine Corps
expeditionary unit [false] (id. pg. lns. 6-7 and 10-11);
(5) that the combat he engaged in was after the Armistice [false] (id. pg. 1117, ln. 12);
(6) that he was on a secret mission to free POWs in secret prison camps in North Korea
[false] (id. pg. 1117, ln. 13);
(7) that the information regarding his secret mission remains classified [false] (id. pg.
1117, lns. 14-15);
(8) that when he was awarded the Purple Heart and was also given a document reflecting
his entitlement to wear that Purple Heart [false] (id. pg. 1118, lns. 13-18);
(9) that he had a valid document entitling him to wear the Purple Hear in his pocket
[false] (id. pg. 1118, lns. 19-20);
(10) that the document produced from his pocket was an authentic [although proven to be
a forgery] official U.S. Government document, which he called a “replacement DD-
214”(id. pg. 1118, lns. 21-22);
(11) that the document produced from his pocket had an Idaho County certification on it,
but Swisher insisted it was certified as authentic by the Commandant’s Office of the U.S.
Marine Corps in Washington D.C., [false] (id. Pg. 1118, lns. 25, Pg. 1119, ln. 1); and
(12) that because of the classification of his official military record, along with the other
purported survivors of that mission, all records had “pretty much been purged;” [when no
such records existed in the first place] (id. Pg. 1119, lns. 2-4). (See Ex B-7 from 2005
Trial, excerpt of trial record pgs. 1116-1119.)
e. Forged Document Part of Government’s Case. The four steps mentioned above
made Swisher’s lies and forgery an integral part of the Government’s theory of the
case, which was that Hinkson had decided to hire Swisher (who purportedly was his
“best friend” (see “Element Two: Opportunity” ¶ 23) to commit a series of torturemurders
because Swisher had “done this before” (that is, Swisher had been in combat
and killed “many” human beings previously, and therefore, the Government presumed
that Hinkson believed that such experience would cause him to be willing to kill
others for money).
f. Limiting Instruction Ineffective as to the Dozen Lies. Because these falsehoods
were inextricably connected to each other, and also inextricably connected to the
Government’s theory of the case, merely telling the jury to “disregard” part of
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 24 of 78
Swisher’s lies in the limiting instruction was ineffective because it could not erase
from the juror’s minds the overwhelming effect of Swisher’s false testimony that
Hinkson was a ‘mastermind’ who arranged for the torture-murder of other people.
Even if the limiting instruction had been comprehensive (which it was not, it
specifically gave the jury permission to consider the rest of Swisher’s testimony,
including his lies on the Government’s direct such as killing “many” in combat) there
was no way that the limiting instruction could “un-ring the bell;” i.e., once the jury
heard all of Swisher lies in the context of his claims of heroism there is no way they
could “disregard” it as seen in the Affidavit of juror Ben Casey (see Ex A-8).
g. Court Compounded the Felony. The limiting instruction actually compounded the
felony committed by Swisher, because it covered up Swisher’s false statements with
what appeared to be officialism, and did not bring to light the fact that Swisher had
never set foot in Korea, had never been in combat anywhere, had not killed anyone
during his military service, and in fact, had lied about all of this to the jury. In
addition, the forged government document (‘replacement DD-214’) was false
evidence and Swisher falsely claimed it had been certified by the USMC. The
limiting instruction did not deal with these lies. The objective observer would ask,
what was the jury supposed to believe if everything Swisher said was untrue?
h. Government Finally Admits Swisher was Lying. The Government (at the Ninth
Circuit en banc oral argument hearing in 2009 on the Hinkson Appeal, after Swisher’s
2008 conviction) conceded that it knew the truth, that Swisher was never deployed to
Korea and never served in combat and was never on a secret mission, was never
wounded and never received any awards and that the Government never informed
Hinkon’s jury of this. The question in retrospect concerns what form the corrective
‘statement should have been given and how should it have informed the jury of the
truth that Swisher was never in Korea, or never in combat or never decorated for
valor? The Government’s statement to the Ninth Circuit would have been a good
start as to what should have been told to the Hinkson petit jury.
i. What Should have been Disclosed to the Jury? Swisher lied under oath to the 2002
Grand Jury, the 2004 Grand Jury as well as to the Hinkson petit jury in 2005. Should
the advisement to the jury also have included a statement that the prosecution offered
false information in its Opening Statement? (See ¶ 22(a) “Step 1”.) The answer is
that, according to the case law, both were necessary, and a reviewing court needs to
determine if these false statements violated Hinkson’s constitutional due process
rights and whether the falsehoods were material.26 Hinkson’s position is that these
falsehoods were material as they affected the outcome of the case, and if exposed, it is
more likely than not that no reasonable juror would have voted to convict Hinkson.
j. Credibility of the Witnesses. Once the high level of credibility had been ascribed to
Swisher, it was easy for the jury to believe the gruesome tale that Hinkson solicited
Swisher to torture-murder various people.27 However, had they been told the truth
26 Hayes v. Brown, 399 F.3d 972, 985-86 (9th Cir. 2005) and Judge Tallman’s dissent on materiality at 977 (see fn
18).
27 Swisher testified: "He [Hinkson] would like to see them stripped, bound and gagged, and then burned with
Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 25 of 78
about Swisher’s lies, the playing field would have been leveled so that Hinkson’s
denial of soliciting murder and of ever having attended any meetings where murder
solicitation was discussed, coupled with Hinkson’s explanation as to his whereabouts
(out of Idaho, out of the USA) at the appointed times would likely have been given
equal weight and consideration by the jury. Further, had Hinkson’s United States
Passport been allowed into evidence, Hinkson’s creditiblity and truthfulness would
have been established as it related to his whereabouts.
23. Element 3 – Opportunity – The essence of Swisher’s assertion that he had the
“opportunity” for confidential communications with Hinkson regarding his supposed desire to
murder others was his claim of being “best friends” which justified access to Hinkson’s private
office and gave Swisher insight into Hinkson’s innermost thoughts and feeli
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