The full story of Dave Hinkson as told by affidavit:

AFFIDAVIT OF WESLEY W. HOYTIn Re: Hinkson Petition for Habeas Corpus under 28 USC §2241, andFor the Establishment of a Right to Relief that is Satisfactory to the Court under Rule 55STATE OF COLORADOCOUNTY 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 fortyyears and in Idaho for over twenty years; I am currently licensed and have an active practice inboth 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 tomatters based on information and belief; and, as to such matters, I believe them to be truebecause they are derived from trustworthy and reliable sources.1 The cumulative effect of all theevidence presented herein supports David Hinkson’s claim of actual innocence. Some facts wereexcluded, some were not presented at Hinkson’s 2005 trial on the solicitation charges and theremainder were not considered for their cumulative effect or ruled upon in accordance with theactual innocence doctrine and false evidence standard.I. BACKGROUNDDavid Hinkson, now age 57, has been incarcerated for ten years and eleven months onfalse murder-for-hire charges trumped up by Elven Joe Swisher who, subsequent to Hinkson’s2005 trial, was convicted in 2008 on perjury, forgery, theft and stolen valor charges. Hinksondeveloped a dietary supplement product and founded a manufacturing and distribution companylocated near Grangeville, Idaho in 1997. Swisher was a service-provider (assayer) for Hinkson’scompany, performing testing of the dietary supplement product(s) for mineral content. At sometime during the professional relationship, Swisher, recognizing the lucrative nature of thebusiness, attempted to extort both money and a share of the business from Hinkson. WhenHinkson refused, Swisher proclaimed publicly that he wanted to make sure Hinkson went to “jailfor the rest of his life”, and in order to make sure that happened, said that he “would go to Boiseto testify.” In fact, Swisher went to Boise and began a nightmarish scenario by testifying in frontof a Grand Jury in 2004. As a private attorney in Idaho, as the Deputy Prosecutor and as alawyer associated with Hinkson since 2003, I have observed the facts and am aware of theinformation in this affidavit detailing the methodology used by Swisher and the Prosecution (the1This Affidavit provides evidence about which I have personal knowledge that bears on Hinkson’s claim of actualinnocence as to events that occurred in Idaho County, Idaho, where I served as Deputy Prosecutor. Idaho County isthe home of both David R. Hinkson (“Hinkson”) and Elven Joe Swisher who was the only witness the jury believedin Hinkson’s 2005 solicitation of murder-for-hire trial (the “Solicitation Case”, Idaho Federal District Court CaseNo. CR-04-0127-C-RCT). Swisher’s testimony was the basis of Hinkson’s conviction of three out of eleven countsof 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 onthree occasions, in (a) April 2002 (after April 16th); (b) in July or August 2002; and , (c) in mid-January 2003. Theevidence in this Affidavit shows that it was impossible for Hinkson to have held the solicitation meetings withSwisher at the times and places stated by him. Therefore, the proof of actual innocence turns on the credibility of thewitness Swisher, without whom there was no case.Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 1 of 78United 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 weremade by Swisher (the Prosecution’s ‘star witness’), Hinkson was left with having to prove anegative. Therefore, the evaluation of Swisher’s credibility is critical, especially when it hasbeen clearly demonstrated that he has a pattern of lying relative to other facts in this case.II CASE SUMMARY1. David Hinkson---Extreme Intelligence/Asperger’s. Mr. Hinkson, like others with AspergerSyndrome (such as Albert Einstein), presents with classic signs, such as high intelligence andlack of social skills. He is extremely creative, unusually outspoken (sometimes to the point ofbeing 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 isconsidered 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 developinga line of dietary supplement products in 1996 along with his manufacturing and distributioncompany, “WaterOz”. Hinkson has always been interested in and active regarding politicalmatters and was instrumental in “un-electing” several Clark County, Nevada Commissionerswhom he believed were corrupt2 and derailing the election-bid of Attorney Dennis Albers forthe office of Idaho County Prosecutor in 2000.2. Hinkson’s Work as a Paralegal Trained Him to Petition for Redress of Grievances. As aparalegal, Hinkson learned to prepare and submit complaints and petitions to his governmentfor redress of grievances; he also became skilled in ‘dispute letter-writing’ seekingadministrative action.3. Hinkson Discovered the Ionization Process and Started WaterOz Business. Hinksonmade a significant contribution to the health-sciences in 1994 when he discovered theprocess of “ionizing” minerals into angstrom-sized particles (smaller than nano) suitable forhuman consumption in their most absorbable form. He perfected the method of suspendingthe ionized minerals in highly purified water and bottled it for everyday dietary-supplementuse in mineral replacement therapy. The liquid mineral supplement product, useful foraddressing mineral deficiencies often caused by diet, lifestyle and mineral-depleted soils, isproduced from 99.9998% pure minerals that are non-toxic to the environment. After startinghis WaterOz company in Las Vegas, Nevada in 1994, Hinkson re-located the business and hisfamily 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 explainedtheir corruption in 600,000 fliers he printed then recruited homeless people to pass them out. After moving to IdahoCounty and in 2000 he sent out 10,000 letters in a campaign to remind Idaho County voters that Dennis Albers, whowas running for Prosecuting Attorney, had been sanctioned by a disciplinary decision of the Idaho Supreme Courtwhich told him not to run for Prosecutor again because of jury tampering by Albers in Swisher’s 1980 childmolestation case (involving the rape of his three daughters, each under age 10). When the mistrial occurred, becauseAlbers was seen “chatting” with one of the jurors during a recess, the case was not reset for trial by Albers, allowingSwisher to escape justice. While I was Deputy Prosecuting Attorney, Albers admitted to me that he had carried on aconversation directly with one of the jurors in the hallway during a court recess which was the event that caused themistrial.Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 2 of 78Hinkson holds an honorary Naturopathic degree and, until his detention in April 2003, washighly sought after as a speaker at various health conferences nationwide.4. The “Tax Case.” On November 21, 2002, Hinkson was arrested and immediatelyreleased on his own recognizance after the execution of a Federal Search Warrant athis home and factory involving FDA product-labeling violations, failing to file taxreturns and structuring of currency transactions (herein the “Tax Case.”)35. WaterOz Profitability Attracts Those with Takeover Mentality. WaterOz productsgained recognition, popularity and acceptance in 1998, which resulted in grossrevenues accelerating from less than $80,000 in 1997 to over $4.0 million per year by2000. The extraordinarily rapid rise in profitability of the company attracted theattention of certain parties in Hinkson’s circle who schemed up a plan for a ‘hostiletakeover’ of the company since Hinkson was often physically absent from themanufacturing plant in much of 2001 and 2002 while traveling abroad to develop aninternational market for his product. Between 1998 and 2004, at least four separateindividuals or groups attempted to take over the WaterOz business (mainly employeesor 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 shouldbe their ‘piece of the pie,’ and Swisher, the local mineral assayer became one of themost persistent. On January 3, 2003, as a part of his attempt to take money fromHinkson, Swisher schemed up a “cyanide-extortion” plan (see ¶ 28(e)) demanding aone-half interest in WaterOz and $800,000 as his ‘slice’ of the pie (see Affidavit ofDavid R. Hinkson Ex A-2, ¶ 72). Swisher, who was unsuccessful at the extortionattempt, joined up with some current and former employees who decided to file alawsuit to gain control of the company. Hinkson was required to defend this, andvarious other lawsuits, to ward off these takeover attempts, including a 1998 lawsuitfiled by Annette Hasalone (daughter-in-law of Hinkson’s then general manager,Bobbie Eve) who was represented by attorney Dennis Albers. When Hasalone wasunable to obtain an interest in Hinkson’s business, she sued for over $600,000. Thefinal result of her suit in August 1999 was a judgment amounting to $100,000 whichwas paid by Hinkson in the fall of that year. Swisher later claimed that Hinkson wasobsessed with the Hasalone judgment and that it drove him to demand the torturemurderof Hasalone’s attorney, Dennis Albers. However, by 2002, when Swisherclaimed to have been solicited by Hinkson, $100,000 amounted to less than 1% ofHinkson’s gross revenues and Hinkson was consumed with building the internationalside of his WaterOz business, inspecting sites for regional bottling plants in foreigncountries and had thus ‘moved beyond’ Hasalone’s victory.6. Pending Cases: I was retained by David Hinkson on December 3, 2003, to handlematters related to his dietary supplement business, including defending the companyagainst Swisher’s lawsuit that was in process at that time based on a TemporaryRestraining Order.7. Swisher’s Motive Shown by Extortion Attempts and Hostile Takeover. On3 The Tax Case: Idaho Federal District Court Case No. 3:02-cr-00142-BLW-RCT, involved a forty-three CountIndictment set for trial in late April 2004 related to three subject areas: (a) Failure to File Tax Returns; (b) ImproperProduct 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 78December 2, 2003, the date the TRO was entered Hinkson was defending the TaxCase and had been in detention on false murder-for-hire accusations trumped up byhis former housekeeper, Mariana Raff (of which it was later proven he was actuallyinnocent) who used the charge to cover up her theft of $6,000 travel money that shefound in his home). For eight months (since April 4, 2003) Hinkson had been sittingin a county jail because of these false Raff charges (see ¶ 21(a) and fn 30) unable toactively manage his business while several of his employees and Swisher planned thetakeover.a. Swisher Set Up Hinkson for FDA Charges. Hinkson had been ‘set up’ for FDAviolations by Swisher based on the mineral content in his products not matchingthe amount specified on the label. Swisher turned in assay reports that showed hisproduct mineral content was accurate while another employee, Hinkson’s trustedmineral-maker, ‘Chris’ deliberately made the product with less than the specifiedamount of mineral content. As a result, when his products were tested by theFDA, they were deficient, a misdemeanor law violation.b. History of Hinkson’s Arrest and Incarceration. His initial arrest was November21, 2002 supported by an indictment on FDA product labeling violations, failureto file tax returns and currency structuring charges. Initially, he was released fromcustody on his own recognizance, but five months later, the false Raff Chargesarose and he was arrested and placed in pretrial detention. Since the Raff chargeswere only supported by her statement, the objective observer would expect theFBI agent she spoke with to investigate the truth of the matter because it involvedthe safety and security of federal officials. These were proven to be absolutelyfalse allegations but it took over a year to galvanize the FBI into taking a seriouslook at the Raff accusations.c. Hinkson’s Absence Opened Door to Takeover. The net result was that Hinksonremained in jail from April to December 2003 when the takeover occurred (andbeyond). Hinkson had been absent from his business for eight months, byDecember 2, 2003 when Swisher, WaterOz employees Lonnie Birmingham andRichard Bellon (a felon who went to prison for assaulting an elderly female IRSagent in California, see Ex A-12) and the other collaborators obtained a TRO byfraud and commenced a hostile takeover.4 This group misrepresented facts to thelocal 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 workwith Hinkson’s designated WaterOz management team on other civil matters and4 In his 2005 trial testimony in the Hinkson Solicitation Case, Swisher pretended that he was not a part of the hostiletakeover of WaterOz; however, I defended the case and observed Swisher’s participation in every aspect of thatproceeding, providing the “expert witness” testimony to the Idaho State Judge at the TRO hearing, falsely statingthat the WaterOz products were unsafe for the public and alleging there were unclean working conditions, all inorder to obtain the TRO that permitted him and his co-conspirators to take over the business. Swisher, whopretended to be an expert in “Best Manufacturing and Management Practices,” entered WaterOz with his coconspiratorson December 2, 2003, ejecting Hinkson’s management team, declaring himself to be CEO of WaterOzand rifling through the WaterOz company records (see Ex A-9, Towerton Aff. of 04-15-12 ¶ 27-28) stealingcustomer lists and trade secrets. Swisher, an assayer, who worked with minerals in the context of mining, wasseeking to clone the process for himself.Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 4 of 78business-related issues. Swisher and his co-conspirators were able to do a greatdeal of damage in the week that they had control of the company. By December10, 2003, the TRO was vacated and the ‘takeover conspirators’ ejected, althoughit required several months of litigation to get the case dismissed.e. Swisher and Cohorts Believed Lawsuit would Put them in Control ofWaterOz. During those months, as litigation was pending, Swisher and Bellonactually believed that they would win the case and thus be able to obtain ultimatecontrol 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, 2004in aid of his plan to send Hinkson to prison for the rest of his life (to keep himfrom claiming his business). Swisher’s plan was to testify that Hinkson was themastermind behind a plot to torture-murder many people, including threespecifically designated, Idaho federal officials, IRS Special Agent Steven Hines,Federal Prosecutor, AUSA Nancy Cook and Federal District Court Judge, EdwardLodge (the “Designated Federal Officials”).f. Plan to Imprison Hinkson for Life. These very serious charges were supportedby the Government and Swisher, who was certain that if Hinkson was lockedaway 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 planwas to put Hinkson in “jail for the rest of his life” (see ¶23(c)(iii)) he wanted toget Hinkson out of the way to avoid any claim by Hinkson related to his interestin WaterOz. Thus, Swisher’s plan was to clear the way for the complete takeoverof the company.g. Swisher wanted Hinkson’s Property. In that TRO lawsuit, Swisher made bogusclaims for over a half-million dollars of property which he said Hinkson owedhim, based on a ‘trade-out’ or ‘set off’ theory alleging that he had only partiallybilled for, and only been paid partially in cash for mineral-testing services andwhat he claimed was the remaining outstanding amount due, supposedly was tobe paid by “in-kind’ transfers of real property and heavy equipment plus $250,000in 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 werereinvented by Swisher for the Solicitation Case as “verbal gifts,” which Swisherimplied were to be disguised payments in the murder-for-hire scheme Swisherclaimed Hinkson had developed to eliminate his “tormentors” (which consisted ofa list of anyone identified by Swisher that grew over time). Swisher chose thesame 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, inthe 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 onHinkson in June 2004, after the May verdict in the Tax Case, and refers to elevencounts of murder-for-hire solicitation, eight of which (the “Bates and HardingCounts”) were ultimately dismissed. The three charges of murder solicitation thatwere not dismissed (as to the Designated Federal Officials) and on which HinksonAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 5 of 78was convicted, form the basis for Hinkson’s §2241 Habeas petition and stem fromallegations by Swisher (herein the “Swisher Counts”).a. The Swisher Counts came about because Swisher testified before the GrandJury in Boise on February 10, 2004 at a time when he believed he would beable to get control of WaterOz via the pending TRO lawsuit (which had beenfiled a few months before, on December 2, 2003).b. The facts show that Swisher’s pattern of lying to various federal tribunalsrevolves around what he believed would lead to his own financial gain. Forinstance, Swisher lied to the Veterans Administration about his fake militarycareer to obtain over $150,000 in medical payment for his 2002 massive heartattack, life-flight to Spokane, open heart surgery, ICU, double pacemaker,therapy and recovery expenses) all paid for by the VA because Swisherpretended to be a wounded combat veteran from the Korean War era. Swisheralso fraudulently obtained a substantial monthly disability income paymentfor which he was also convicted.c. Using the same lies he told to the VA, Swisher built of a false credibility as aKorean combat hero, as a springboard to accusing Hinkson of soliciting himto murder the Designated Federal Officials and that would put Hinkson “in jailfor the rest of his life;” clearing the way for Swisher to obtain a half-interestof 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 apartnership agreement with Hinkson giving him half of Hinkson’s businesswhich 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 Idahofederal criminal lawyer to defend him. None of the dozen or so qualified attorneys in Idaho Icontacted would take the case, as it was considered to be too “icky” (a term used by a notedIdaho 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 necessaryto hire an experienced criminal trial attorney from out of Idaho. The same situation occurredin 2004 when the Solicitation Case Indictment was served on Hinkson, i.e., because no Idahofederal criminal trial attorney would accept Hinkson’s representation, an out-of-state attorneywas retained. This Affidavit is based on my knowledge of facts pertaining to the allegedsolicitation of Swisher acquired while acting as lead counsel in the civil TRO case and as cocounselin both the Hinkson Tax Case and the Solicitation Case. I assisted the two seasonedcriminal trial lawyers5 who represented Hinkson, both of whom appeared pro hac vice as leadcounsel in those cases.10. Hinkson’s Sentencing in the Tax Case in 2004 Postponed. After Hinkson’s May 2004conviction 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 postponed5 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 78and 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 ofCrimes of Violence in the Solicitation Case. Hinkson recently (in January 2014) had aViolence Threat Level Assessment performed at Atwater Prison, whereby it wasreaffirmed that he is a non-violent individual that presents no threat to others.Nonetheless, in January 2005, Hinkson was convicted of three violent crimes (theSwisher Counts) for soliciting the murder of the three designated federal officials (aJudge, a Prosecutor and an IRS Agent) under 18 USC §373 based strictly on the falseaccusations of Swisher as set forth herein.12. Sentencing. At his June 2005 combined sentencing hearing, Hinkson wascondemned to what amounts to a life sentence of 43 years in prison (consecutivesentencing of a 10 year term on the Tax Case and three 10 year terms on the SolicitationCase, 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 theUnited States Penitentiary, Administrative Maximum Facility (ADMAX) in Florence,Colorado unofficially known as the Alcatraz of the Rockies at the direction of JudgeRichard C. Tallman (a federal appeals court judge who sat by Ninth Circuit Courtdesignation as the trial judge in both the Tax and Solicitation Cases).13. Hinkson’s Previous Political Involvement in Petitioning the Government for Redressof Grievances Held Against Him. Seven years after the sentencing hearing JudgeTallman finally articulated his deep-seated antagonism toward Hinkson based on previousactivity in petitioning the Government for redress of grievances and for his politicalactivism. The following disclosure was made by Judge Tallman as he described Hinksonin 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 federalofficials 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-judicialmatters not a part of the Solicitation Case (some of his comments were related to well-takenrecusal motions involving other judges which had been filed by noted attorneys and were notfrivolous7). In any event, Judge Tallman’s statements listed above show that he had judicialbias against Hinkson8 and reflect his inability to put such matters out of his mind. What6 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 SeanConnelly, former Assistant United States Attorney who acted as Special Prosecutor in the Timothy McVey series ofcases, 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 hisAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 7 of 78Judge Tallman thought about Hinkson’s other administrative and court filings does not bearon Hinkson’s guilt or actual innocence in the instant proceeding and a separate adjudicationwould be required on those issues, which are extra-judicial. (Id., Ex B-2, Idaho FederalDistrict 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 inADMAX (home to some of America’s most dangerous criminals) Hinkson had virtuallyno human contact, with meals shoved through a slot in the door of his 6’ x 8’ cell andwhere the guards did not speak (except when taking him out of his cell in ankle and bellychains). He used the time to learn Spanish and Russian and to design inventions for anew generation of “green-energy” products. Retaliation is sign of judicial bias (see ¶ 34).15. From Solitary Confinement to General Prison Population. The ADMAX staff learnedHinkson was harmless and relocated him to the general prison population. He was thentransferred to the United States Penitentiary, Atwater, California, where he is housed atpresent. He was recently removed from the Atwater general population and placed inprotective custody for his own safety after threats from a group of “white” inmates (whopractice racial discrimination) and believed they should receive what Hinkson paid to a blackinmate 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 CASE16. Summary of Hinkson’s Present § 2241 Case. The facts in this Affidavit presentevidence that supports Hinkson’s claim of actual innocence9; if considered with allavailable evidence, the cumulative effect would be that, more likely than not, noreasonable juror would convict Hinkson on the Swisher Counts (assuming the jury wasalso informed about Swisher’s false testimony as to his military career.)10 The SwisherCounts, which are the only charges for which Hinkson now stands convicted, are basedsolely on Swisher’s testimony that, in “mid-January” 2003 (Tr. 1013, at 7) in a one-ononemeeting, in Hinkson’s private office on the second floor of the WaterOz factorybuilding, Hinkson solicited Swisher to torture-murder the Designated Federal Officials.Swisher went to great lengths to build his credibility with the jury based on falsehoodspreviously expressed views" where the Appeals Court found that this was a good enough reason to assign a newjudge.9 Alaimalo v. U.S., 636 F.3d 1092, 1096 (9th Cir. 2010) “To establish actual innocence for the purposes of habeasrelief, a petitioner ‘must demonstrate that, in light of all the evidence, it is more likely than not that no reasonablejuror would have convicted him.’"10 The Swisher Counts are limited to solicitation for the murder of the Designated Federal Officials at a discretemoment in time (at an alleged meeting between Hinkson and Swisher in mid-January 2003) which solicitation, if itoccurred, is within the scope of federal law. To avoid confusion, it should be noted that Swisher testified aboutHinkson supposedly soliciting him to murder many other people, none of whom were federal officials, includingIdaho 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 thereis a connective thread between all of Swisher’s allegations, and for that reason this Affidavit briefly addresses allmurder-for-hire allegation by Swisher. Once the modus operandi of Swisher is understood, and his capacity toweave extensive and elaborate tales is exposed, it is believed that the objective observer reviewing this case will beconvinced that Swisher added additional names to the list of possible victims in order to increase the seriousness ofhis 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 78and forgery to put Hinkson in prison in order to obtain a piece of Hinkson’s lucrativeWaterOz business. Swisher stated in public that he wanted to make sure Hinkson went toprison for “the rest of his life” if Hinkson refused to pay his extortion demands asdiscussed 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 ofWaterOz.a. Without Swisher There was No Case. In the words of Ninth Circuit CourtChief Judge Alex Kozinski, “[w]ithout Swisher the Government had nocase.”11b. Swisher’s 2008 Conviction. We now know what the jury in the Hinkson 2005Solicitation trial never could have known, i.e., that Swisher was convicted ofperjury in 2008 for having told the same lies in July 2004 to theAdministrative Law Judge (“ALJ”) at a Veteran’s Administration DisabilityBenefits hearing12 as he told to the jury in the January, 2005Hinkson 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 thatSwisher presented to the VA in 2004 in order to obtain unearned benefitsmirrors the elaborate scheme Swisher presented in order to deceive theHinkson jury which caused Hinkson to be convicted of soliciting Swisher as a‘hit-man,’ in Swisher’s purported murder-for-hire plot. Common to bothschemes 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 militarycareer 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 VAbenefits he had no right to receive by leveraging his bogus claims of militaryheroism, just as he leveraged those same fake heroism claims that cause thejury 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 werefavorably impressed with Swisher’s military credentials and believed his falsetestimony (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 theHinkson jurors, in a post-trial affidavit, stated that he would not have voted toconvict Hinkson on the Swisher Counts if he had known that Swisher waslying about his military career.13f. Correction of Known False Testimony would have Prevented Hinkson’sConviction. If the prosecution had corrected Swisher’s false testimony, as itwas required to do (see fn 17 and 18), it is likely that the jury would not have11 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 78convicted Hinkson (especially considering juror Ben Casey’s resolute state ofmind; see Ex A-8).g. Mistrial Justified. When the myriad of lies became apparent during the 2005Hinkson trial, the trial court should have granted defendant’s motion for amistrial (see ¶ 34).h. Applying the Cumulative Effect Doctrine. When all known facts areconsidered together, the cumulative effect of the evidence supports theproposition advanced by Hinkson’s §2241 Habeas Petition, which is that he isactually innocent because he did not commit a crime and that no crime wasever 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 financialgain by attempting to acquire an interest in WaterOz. Coupled with Swisher’sgreed was revenge because Hinkson would not agree to make extortionpayments to him.14j. Obtaining Justice after Swisher’s VA Fraud took Years. The evidenceshows Swisher was highly skilled at forgery and extremely experienced atconcocting elaborate stories and giving false testimony in order to bolsterfraud schemes that were in his own self-interest. Swisher used perjury, forgeryand stolen valor claims as the tools of his trade, in order to steal VA medicaland disability benefits that involved expertly-crafted Government documentsthat took the United States Marine Corps Commandant’s Office at least fivemonths (August–December 2004, see Ex B-13) to figure out and discredit.15Over a dozen of Swisher’s deceptive statements were also presented at theHinkson 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 (in2007) before Swisher was charged through the US Inspector General’s Officewith the VA-related crimes, and took another year to convict him for the theftof 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 “DowlingReport” (see Ex B-5) which discredited Swisher’s rendition of his militaryhistory and proved he did not serve in Korea and had lied during the 2005Hinkson Solicitation trial. Although the prosecution tendered a copy of theDowling Report to Hinkson’s defense team in the second week of trial, theGovernment failed to correct Swisher’s false testimony and false evidence thathad already been presented to the jury.l. Court gives Jury “Limiting Instruction” as an attempt to Cover UpSwisher Lies. The Court, in an attempt to cover up the effect that Swisher’slies had on the jury as to his Korean military combat experience eventually14 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 78gave the jury a limiting instruction16 and told them to “disregard” alltestimony concerning the Purple Heart and commendations, which by nomeans undid or reversed the damage from the Government’s vouching forSwisher as a combat veteran from Korea, nor did it negate the effect of theother false testimony and evidence presented. The limiting instruction failed topoint out the untruthfulness of the entire “Swisher Story” and it specificallyallowed the jury to consider Swisher’s testimony on direct examination whereSwisher 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 toldhim, “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 wasa combat soldier. The prosecution represented to the jury in its opening statement thatSwisher was a “veteran” from “Korean combat.” Thus, Swisher’s direct testimonyratified the prosecution’s statement and expanded on it by claiming that he had, prior tobeing solicited by Hinkson, informed him that he had killed “many” in combat; which wenow know, unequivocally, was a blatant lie. Thus, the limiting instruction was ineffectiveon its face because it did not deal with Swisher’s direct examination testimony or anyother false Swisher-testimony that also supported false evidence as well as fake-factsrelied 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 presentedthat 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 Hinkson16 The trial court’s limiting instruction: THE COURT: “Ladies and gentlemen, it’s been a long day; and I nowrealize that I made a mistake in allowing the questioning with regard to the Purple Heart Medal. So I am going toinstruct you to disregard completely all of Mr. Swisher’s testimony with regard to that military commendation. Youcertainly are entitle to consider all of the rest of his testimony. Just everything from where I (sic) asked Mr. Nolan tore-open, please strike that from your minds; and you are not to consider it as evidence in the case.” (Tr. 1131, 23-25and 1132, 1-9.)Affidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 11 of 78case was rendered, Hinkson submitted a Motion for New Trial to which anaffidavit from Chief Warrant Officer, W. E. Miller was attached (see Aff.“CWO Miller,” Ex B-9). Miller was the individual at the National PersonnelRecords Center charged with determining the authenticity of militarydocuments 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 incombat in Korea and receiving war wounds as presenting to the jury wasfraudulent.n. Hinkson’s Motion for New Trial Denied by Judge Tallman Despite UndisputedEvidence that Swisher was a Liar and a Forger. The case law requires a new trial ifthe 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 newtrial.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 wasrendered applying the doctrines necessary to have a complete adjudication under theactual innocence doctrine and the cumulative effect doctrine, nor did Judge Tallman entera ruling concerning the effect that correcting Swisher’s false testimony would have hadon the jury (because he did not recognize Swisher’s testimony as false, in fact, throughoutthe trial, Judge Tallman continually made his personal views known, that he believed theSwisher 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-seatedantagonism toward Hinkson which obstructed his Constitutional right to procedural andsubstantive due process. Judge Tallman also disregarded the Ninth Circuit standard set forthe materiality of the false testimony and his own higher standard for materiality18because, by either standard, the false evidence met the materiality test and it wasimperative that it be corrected.18. No Reasonable Juror Would Have Convicted. Reducing the above to its essence, thecumulative effect doctrine is essential to Hinkson’s claim of actual innocence, which is thatno reasonable juror would have convicted him based on the “Swisher Story” if all the17 Alcorta v. Texas, 355 U.S. 28, 32 (1957) constitutional due process requires a prosecutor to correct falseevidence when it appears; see Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) the Government violatesconstitutional due process when, although not soliciting false evidence, it allows false evidence to go uncorrectedwhen it appears.18 Hayes v. Brown at 979 (9th Cir. 2005) see also Judge Tallman’s dissent on materiality; where the Tallman dissentin Hayes suggests a different materiality test be applied than the one used by the majority in Hayes, which is, despitethe 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 ofthe Tallman analysis. To satisfy the second prong, Judge Tallman would have the reviewing court ask the questionwhether, in the context of all the evidence, there was a reasonable likelihood that the false evidence could haveaffected the jury’s judgment. (Id.) In the Hinkson case, the Affidavit of Ben Casey (Ex A-8) shows empirically thatthe jury’s verdict would have been different if the false evidence about Swisher’s military history had beencorrected. Thus, using Judge Tallman’s higher standard, the evidence presented in this Affidavit is material andsupports 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 78evidence had been considered, and the false evidence contained therein had been correctedby the prosecution during the trial. Although the Government did not elicit the dozen liesfrom Swisher on direct examination (for the dozen lies, see ¶22(d), which came out on crossexamination), the prosecution opened the door by vouching for his credibility based onmilitary service in Korea as presented in its opening statement (see ¶22(a)). Then on directexamination the prosecutor asked about “combat” and Swisher testified that he hadpreviously informed Hinkson about killing “many” in combat (see ¶16(l)). The objectivereviewer now sees that Swisher’s criminal conviction proved he was never in combat. UnderUS Supreme Court and Ninth Circuit case law, the prosecution had a duty to correct the falsetestimony from its own witness whether or not the dozen lies were elicited by the prosecutionor not (see fn 17 “…the Government violates constitutional due process when, although notsoliciting 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 abouthis military valor were inextricably connected to the Government’s case, as wasdemonstrated when the prosecution vouched for Swisher as a Korean combat veteran in itsOpening Statement. We know now, as the prosecution knew then, that the opening statementwas 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 (acrime) 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 thejury a dozen lies (see ¶ 22(d)) about a secret mission that never occurred, (e) presented aforged 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 merelimiting instruction (see fn 16) from the court to “disregard” the testimony about the PurpleHeart and commendations was not enough to wash the effect from the juror’s minds asproven by juror Ben Casey (see Ex A-8). Both the US Supreme Court and Ninth CircuitCourt held that justice demands that the prosecution must correct false evidence (see fn 17and 18).II. OVERVIEW AND COMPREHENSIVESTATEMENT20. New Evidence. The new evidence supporting this §2241 Habeas Petition is Swisher’s2008 conviction for perjury, forgery, theft and stolen valor, establishing that Swisher liedunder oath, pretending to be a wounded and disabled veteran from post-War combat inKorea on a secret mission to rescue American POWs in order to obtain over $150,000 inVeteran’s Administration medical and disability benefits to which he was not entitled.a. Credibility Based on Lies Used to Convict Swisher. Using the same liesthat he used in the VA case, Swisher established virtually unassailablecredibility as a Korean combat hero in the eyes of Hinkson’s 2005 jury. Thefull extent of Swisher’s lies are set forth in ¶ 22(d) below. Since Swisher wassubsequently convicted of perjury for testifying as to these same lies, it isimportant to chronicle them for the objective reviewer in this Affidavit. Inorder to view the cumulative effect of all the evidence, whether previouslyexcluded, actually presented or new evidence that has not yet been consideredto see whether Hinkson meets the Alaimalo standard that no reasonable jurorAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 13 of 78would 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 tolook 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, andgiven his direct testimony about killing “many” in combat and illegallywearing a Purple Heart medallion throughout the entire time he presentedhimself before the Hinkson jury, a mere limiting instruction to simply“disregard” the testimony regarding military commendations (see fn 16) wasnot enough to wash the effect of Swisher’s lies about being in combat inKorea from the juror’s minds (see Aff. Casey, Ex A-8).c. Swisher Violated Criminal Law. The wearing of the Purple Heart, combinedwith 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 Swishertold about his fabricated military history were each separate criminal lawviolations that needed to be corrected by the prosecution (see fn 17) to takeaway the effect that the false testimony had on the jury, rather than merelyrelying upon a inadequate limiting instruction (see fn 16) that only requestedthe jury “disregard” part of the offending litany of falsehoods. A full statementas 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 18USC §704(a) and was a crime, known as stolen valor. It along with all of his other liesconstituted felony perjury before a federal tribunal under 18 USC §1621. The“replacement DD-214” was the felony crime of forgery. Swisher’s law violationsconverted the Courtroom into a crime scene. Swisher’s claim to have killed “many” incombat violated 18 USC 1515(a)(3)(A) knowingly making a false statement; submittinghis “replacement DD-214” violated subsection (C) of 1515(a)(3) as knowingly submittinga 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 bythe Commandant’s Office” of the USMC in Washington D.C. when it had not, wasperjury under 18 USC §1621. It was prosecutorial misconduct for AUSA Sullivan toclaim later in the proceeding that he never raised “combat” on Swisher’s direct, whichwas 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 theCourt, 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 forPerjury, Forgery, Theft and Stolen Valor, all part of Falsely Testifying to the VA ofthe Same Fake Heroic Military History Presented to the Hinkson Jury. In 2008,Swisher was convicted of perjury, forgery, theft of VA medical and disability benefits19and stolen valor and went to prison for telling the same lies used in the Hinkson trial, to19 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 78the ALJ at the VA Disability Benefits Hearing. (See ¶ 22(d).) The lies he told to theHinkson jury, were buttressed by the prosecutor’s vouching20 based on the prosecutor’sclaim that Swisher was a Korean combat veteran. In so doing, the prosecution lent itsprestige to enhance Swisher’s credibility by clothing him as a military combat hero. Onceon the pedestal of a military combat hero, Swisher’s tale of supposedly being solicited byHinkson to torture-murder the Designated Federal Officials was virtually impossible torebut, that is until the fraudulent ‘cloak’ of a military hero could be removed and the falsetestimony corrected.f. Fraud Permeated the Government’s Case. By relying upon Swisher as the solesource of all information regarding the Swisher Counts (alleging Hinkson’ssolicitation of torture-murder of federal officials) the Government allowed fraud topermeate its case; which fraud has now been conclusively proven by Swisher’s 2008conviction; i.e., the new evidence.g. Cumulative Evidence Presented in this Affidavit. Facts are presented in this Affidavitregarding the prosecution’s theory that were either (a) not available to the Hinkson petitjury; (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 innocencedoctrine 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, andthe effect of all rulings that frustrated efforts to develop a defense through exculpatoryevidence; basically, anything that could have been raised to discern if multiple errorsaccumulated to deprive a defendant of a Constitutionally fair trial.21e Government’s Theory in Prosecuting Hinkson Required Eight FundamentalElements. 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 onehad been disproven, it is likely the prosecution would fail, because the basis of Swisher’smurder 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 heroicmilitary history;iii. Opportunity. Swisher needed to show he had the opportunity to be solicited byHinkson 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 messageto Hinkson;v. Ability: Swisher had to possess the ability to perform as a ‘hit-man basedon strength, health and stamina;20 US. v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) Vouching places the prestige of the Government behind awitness through personal assurances by the prosecution of the witness’ veracity and is considered to be prosecutorialmisconduct. 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 substantialerrors, 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 78vi. Compensation: Swisher had to have been (or was to be) compensated by Hinksonfor torture- murdering various people;vii. Motive: Hinkson had to have a motive to want his “tormentors” torturemurdered;andviii. Solicitation: Hinkson’s solicitation of Swisher had to occur at a certain timeand place.21. Element 1 –Profiling – Preface - Definition of Terms:A. Violent Mastermind. Below is a table showing the names of the confidentialinformants used to accuse Hinkson of murder-for-hire. On seven occasions, Hinkson,a non-violent person (per USP Atwater Threat-level Assessment, ¶ 15, above) wasaccused of plotting to murder others. It was essential to the Government’s case tocreate for the jury a picture of a mastermind, repeatedly plotting the violent death ofothers in order for Swisher’s accusation to be believed by the Hinkson jury. Theobjective followed the old adage, ‘where there’s smoke, there’s fire.’ TheGovernment’s approach by sponsoring seven CI’s, created enough complexity andconfusion that it would be difficult to unravel all the accusations. By blamingHinkson for multiple murder for hire plots, it was the Government’s plan that a jurywould likely pick at least one and convict. Some of the plots fell short ofprosecutorial indictment standards and had to be abandoned. Others, were part of theIndictment but dismissed. One became F.R.E. 404(b) evidence at trial. Swishersaccusation involving the Designated Federal Officials formed the basis for Hinkson’sconviction in the Solicitation Case. It was the FBI’s modus operandi to paint Hinksonas a violent mastermind killer in enough murder-for-hire schemes that it improved theodds of a conviction. All but the Swisher Counts were proven false.B. Six Times Hinkson was Proven Actually Innocent. Hinkson’s actual innocence wasproven six times in the seven ‘trumped-up’ schemes listed below (with the exceptionof the Swisher Counts) all others were (a) proven to be false reports; (b) dismissed bythe Court; or (c) abandoned by the prosecution.ConfidentialInformantClaim End Result of Accusations1. Raff Murder-for-Hire, Pre-Indictment Fictitious Crime – Abandoned2. Bates Murder-for-Hire, Two Counts Fictitious Crime – Dismissed3. Harding Murder-for-Hire, Six Counts Fictitious Crime – Dismissed4. Swisher Backwoods Shooter-Murder Contract False Report - Per Sheriff’s Investigation5. Croner Jailhouse Murder-for-Hire Fictitious Crime – 404(b) Evid-Abandoned6. Nicholai Jailhouse Murder-for-Hire Fictitious Crime – Abandoned7. 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, hewas being held in federal custody on a detention order in the Tax Case, which was based onmurder-for-hire allegations raised by Confidential Informant Mariana Raff from IdahoCounty in which she informed SA Long that Hinkson, while on a 2001 business trip toMexico, 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 safetyAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 16 of 78and security of federal officials in Idaho because, as she supposedly put it, they, (herbrothers) had “done this before.”i. No Investigation for 15 Months-Then Hinkson Cleared. SA Long didnot investigate Raff’s allegation for over a year22 which wasunreasonable, a dereliction of duty and leads the objective reviewer tobelieve that if the threat had been legitimate, he would haveinvestigated it immediately to protect the federal officials whoallegedly were the target of the purported murder plot. The Raffscheme was disproven when I called Raff’s brothers and discoveredthey were credible business men, who were irate that their sister hadfalsely accused them (they reported she was a known liar whofrequently contrived stories for her own personal financial advantage).When they learned they were the target of an international terroristinvestigation, the Raff brothers stated that if FBI SA Long did notimmediately clear them of any wrong doing, they would seek adiplomatic resolution of the matter. SA Long immediately clearedthem as suspects, which cleared Hinkson as a suspect, which he easilycould have done 15 months earlier.ii. Raff’s False Accusations Caused 15 Month Incarceration. Ms. Raffdid not testify about the alleged plot at Hinkson’s detention hearing,but rather, SA Long recounted the fabricated “Raff Story” and it wasthe basis for Hinkson’s initial 15-month detention (which commencedApril 4, 2003 and continued until another detention order was enteredin the Hinkson Solicitation Case on July 7, 2004).iii. Government Abandons Raff Accusations-Hinkson Actually Innocent.Because the fraudulent story was eventually discredited andabandoned by the Government. It was not used as a Count in theSolicitation Case Superseding Indictment or brought up as 404(b)evidence at the Hinkson Solicitation trial, which shows that theGovernment knew that Hinkson was actually innocent of anywrongdoing in reference to Ms. Raff’s accusations.b. Bates and Harding Accusations. It is significant the Ann Bates and J.C. Harding’s falseaccusations made up eight of the eleven Counts of Hinkson’s Superseding Indictment but all22 SA Long has never explained the delay that lasted over a year in investigating the Raff Story, but if he trulysuspected Ms. Raff’s Mexican-national brothers of having “done this before” he should not have waited to find outbecause there were unsolved murders of two Assistant US Attorneys pending at the time, one in Baltimore and onein Seattle. As is turned out, Ms. Raff’s brothers had not recently traveled to America and were not and had notpreviously been involved in international terrorism or the murder of federal officials and never had a conversationwith Hinkson about plotting to murder federal officials in Idaho. The only explanation is that the year plus delay ininvestigating this crime is that it fulfilled the “agenda” of keeping Hinkson in pre-trial detention. For SA Long, notinvestigating was supported by a commonly used government shield from taking responsibility known as: ‘plausibledeniability’…which means that, so long as he avoided doing the actual investigation, he could continue claimingthat 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 andabandon 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 78were dismissed; again proving Hinkson’s actual innocence. Both Bates and Harding wereconfidential informants whose handler was also SA Long, and both claimed that they werewitnesses to murder-solicitations by Hinkson when they were guests in his home for a shortperiod of time in the first quarter of 2003. Even though their ‘stories’ were similar to eachother in that they both alleged that they witnessed Hinkson offer money to kill federalofficials, their stories were inconsistent in several material respects and thus, the jury simplydid not believe them.i. Hearsay, ‘He Said – She Said’ Accusations Insufficient. The collective common wisdom ofthe jurors discerned that when the actus reus and mens rea were combined derived fromthe same hearsay source, Bates and Harding, who lacked credibility and their stories wereinconsistent, the jury could not convict. When there was no corroboration that a crimeoccurred, no physical body of a crime (no corpus delicti) and the only evidence of acrime was the supposed hearsay statement by Hinkson’s words alone, that means intechnical terms the actus reus and the mens rea of the crime were merged. Harding’sfather came from Southern California to testify that his son was a chronic liar who couldnot be believed as to anything he said and Bates changed her story making herunbelievable. Because there was no independent corroboration and the credibility ofBates and Harding as prosecution witnesses was the paramount deciding factor, the jurycould not convict on these eight Counts. Here, the jury recognized that when thewitnesses had no credibility and the entire case depended on what the witnesses recalledof what the accused said, and their statements were inconsistent, there was no foundationfor a guilty verdict; hence, no guilty verdict was rendered on the eight Bates and HardingCounts.ii. Analogy to Swisher Counts. By analogy, no guilty verdict should have been entered withregard to the Swisher Counts which presented the same scenario to the jury. Thedifference was Swisher’s credibility as a “Super Hero” vouched for by the Government.c. Swisher Accusations-“Backwoods” Shooting. Swisher’s claim made during trial thatHinkson put out a “contract” to have some unknown person shoot him while he was at hisgold mine in the backwoods of Idaho (Tr.1069, ln. 12) was contemporaneously investigatedby Idaho County Sheriff’s Deputy Herbert Lindsey (now retired) who found it to be anotherfalse report by Swisher (see Ex B-4) who had a long history of making false reports.2323 Swisher’s History and Reputation as a Liar. Not only did Swisher lie to the Grand Jury, in 2002 stating thathe 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.” (Swishergrand jury testimony, April 16, 2002, pg. 4, lines 21-23.) Answer: [Swisher]: “... I guess that my lower spine fromthe grenade is pretty fouled up....” (Swisher grand jury testimony, April 16, 2002, pg. 14, lines 22-23.) Swisher alsohad a reputation in his community for being untruthful that spans a period of over 35 years. By 1997, when I left theIdaho County Prosecutor’s Office, Swisher, who had lived in Idaho County for over 20 years at that point, was wellknown among law enforcement personnel in Idaho County as a habitual liar who frequently made false reports toauthorities. Among many other things, he was known to have defrauded numerous doctors from California out ofhundreds of thousands of dollars of investments over a phony gold-rendering process that he invented; he had toldinconsistent 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 notresult in a criminal prosecution. By 2004, Swisher was generally regarded by his community as untruthful invirtually all his dealings. He also was known as a child molester since the 1980 child-rape case involving his owndaughter and two step-daughters, who were all under the age of ten when violated. Swisher escaped conviction inthat 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 78Deputy Lindsey said in his Affidavit, “[i]t was my opinion Swisher manufactured the wholestory.” (See Ex B-4, Affidavit of Deputy Lindsey.)i. Swisher Gets Away with False Reports. I have observed over the years that Swisher oftenused his influence with one branch of law enforcement for his own protection fromadverse action by another. In this instance, Swisher used the imprimatur of SA Long tolegitimize his false “backwoods shooter” report not prosecuted in Idaho County as falsereporting (Ex B-4)ii. Investigation Shows False Report. Deputy Lindsey’s official incident report attached tohis 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 inthe interim. Swisher blamed Hinkson, who was incarcerated at that time 200 miles awayin Boise under a detention order. It is obvious that Swisher concocted the story with theassistance of his FBI handler. Deputy Lindsey made a finding that the incident wasbaseless and it appeared that Swisher himself shot through the walls of his own metalouthouse with a small caliber hand gun so that he could use a welder’s rod to fit throughthe holes and establish the trajectory of the bullet. Swisher was then able to locate theplace where he (the shooter) stood when the trigger was pulled but there was no disturbedground, making it obvious to Deputy Lindsey that the shooting was self-inflicted. One ofDeputy Lindsey’s key issues was that Swisher had no concern for his safety, sinceSwisher and his buddy who were at the gold mine were expecting their wives to arrive fora social event that afternoon and Swisher had no safety plan to avoid being the target of arepeat shooting. Logic would suggest that if someone was hired to shoot Swisher andhad missed him, that person might try again. Neither Swisher nor anyone else whose lifewas threatened by a shooting would have waited until September 10, 2004 to meet withlocal law enforcement regarding such a murder-attempt, making this incident anotherexample of Swisher getting away with making a false report to the authorities. It alsostands as another instance of Hinkson being actually innocent.d. Croner’s Accusations. The evidence is clear that, shortly before the Hinksontrial, the FBI concocted the Croner ‘jailhouse murder-for-hire plot’ which wasrefuted by four eye witnesses. Again this was an attempt to promote a violentprofile for Hinkson. It was a “late-breaking” accusation and cameimmediately before trial, involving yet another unfounded, illogical andfabricated murder-for-hire plot. For this purpose, the FBI engaged the servicesof Chad Croner (a felon looking for a ‘break’ for himself and his mother, bothof whom had pending criminal charges) who happened to have been an inmateat the Ada County Jail, in Boise, Idaho at the same time as Hinkson.i. Witnesses Proved No Solicitation Occurred. The “story” was thatHinkson solicited Croner, who was his cellmate, to murder a list ofpeople. The allegation was immediately rebutted by the four othercellmates that were housed in the six-person cell, who provided theirstatements and affidavits showing that Hinkson spoke with Cronerwith 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 newtrial 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 78only once in the few days Croner was placed in the cell, and only had abrief discussion with Hinkson regarding a tax-related matter. Thethird-party witnesses testified that there were no other conversationsbetween Hinkson and Croner.ii. Witnesses Observed Everything. They stated that the rest of the timeCroner was in the cell that he sat ‘cross-legged’ on one of the upperbunks, staring across the room and spoke to no one, and that becausethey were in such close quarters (three bunk beds in one small cell)they could at all times overhear the conversations between any of thesix cellmates. They specified that neither Croner nor Hinkson evertalked about killing anyone or about murder-for-hire, and if it had ofhappened, they would have heard it and stopped it immediatelybecause of their fear of being implicated as accessories. The thirdpartywitnesses also reported that the FBI pulled Croner out of the cellregularly during that period to talk to him (giving the impression theywere “up” to something.)iii. Croner’s Testimony Worthless. While the Government presentedCroner as a 404(b) witness of Hinkson’s “other bad acts” at his 2005trial, his testimony was worthless because of (a) the testimony of theother four cell-mate witnesses; and (b) because a venirman in theoriginal jury pool who was from Croner’s hometown, who recognizedhis name when the witness list was read, and although that prospectivejuror was excused, he came back to testify that Croner was known intheir small community as a liar an nothing he said could ever bebelieved. The Croner story is another example of Hinkson beingactually innocent.e. Nicolai Accusations. Because I was able to obtain statements and affidavitsfrom the third-party witnesses who debunked the Croner accusations, theGovernment went to one of them, Frank Nicolai and had him accuse Hinksonof plotting to murder 23 people on a list, one of whom was Judge Tallman, thesitting judge. Nicolai eventually recanted his statement, but it raised conflictof interest issues. The statement was a bit garbled, but implied that I, asHinkson’s attorney, plotted with my client and Nicolai for the murder of thepeople named. Even though this was a false accusation, I filed a Motion toWithdraw as counsel. Judge Tallman entered findings that neither he nor theGovernment ever believed the allegations were true, but that as a result ofthose allegations, the Court found that I had an irreconcilable conflict ofinterest with my client and new counsel substituted into the case. (See Ex B-14). These accusations were abandoned which is another example ofHinkson’s actual innocence.f. Failure to Show Hinkson was a Violent Mastermind. In summary, theGovernment failed miserably in its attempt to profile Hinkson as a violentmastermind of murder because of multiple other accusations, all of whichwere shown to be false and fictitious crimes and can be seen in retrospect asevidence of a pattern by the Government to repeatedly falsely accuse HinksonAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 20 of 78when he was actually innocent. It also shows that the Government uses illegalmethods to remove from a case an attorney who sees through their falseaccusations 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 valorthat 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 falsetale of being a Korean combat veteran which wassupported and vouched for by the prosecution in itsOpening Statement; “Swisher Story.” The SwisherStory solidified him as a credible witness, and inessence, put him on a ‘pedestal’, which resulted in thejury believing whatever he had to say about Hinksonsoliciting him to murder the Designated FederalOfficials.b. Conviction would have Defeated Swisher Story.Swisher’s 2008 conviction for perjury, forgery, stolenvalorand for theft of benefits from the Veteran’sAdministration should have eliminated any reliabilitythat Swisher’s trial testimony would have had againstHinkson when he used the same “Story” as in the VAcase. 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 [KoreanWar].” (Emphasis Supplied.) (See Ex B-3, Prosecutor’s Opening Statement, 2005 TrialTr. Pg. 291, lns. 16-17).[Counterpoint: Even though the prosecution became aware, during trial, of officialGovernment-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 fromKorea’ and never served in Korea ‘during the Korean conflict’) the prosecution failed tocorrect its false statements during trial. If there was any doubt about the falsity of thesestatements, Swisher’s 2008 conviction (fn 21) absolutely proved these three statementswere lies.]ii. Step 2: During his direct testimony, Swisher stated he had toldHinkson that he had killed “many” while in combat (see ¶ 16(l)),which, under the prosecution’s theory, was Hinkson’s basis forselecting Swisher as a ‘hit-man.’ We know that the prosecution wasaware, at least by the middle of Hinkson’s trial, based on the twoGovernment-issued letters (fn 3) that Swisher had never seen combat,nor had he ever gone to Korea, and he did not serve in the Korean24 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 78conflict. The prosecution also knew that Swisher lied to the 2002Grand Jury testifying that he had been injured “at the end of theKorean War”25 when he had not. However, in order to perpetuate theprosecution’s theory, Swisher told the 2005 Hinkson jury that he hadpreviously informed Hinkson, that he had killed “many” people in“combat,” when he had never been in combat or in Korea. (One mayask how the jury could discern the truth, if the prosecution’s case wasbased ‘one lie upon another.’ Hinkson’s testimony was that he did nothear of, or know about, Swisher’s (supposed) military history until his2005 trial, see Hinkson Aff. Ex A-2, ¶ 33.) Therefore, not only wasSwisher lying about his secret mission rescue POWs in Korea, itfollows that he also lied about having told Hinkson he had killed“many” in combat, because he never was in combat. The prosecutionexpected Swisher to be believed when he said he told Hinkson hekilled “many” in combat, when it became apparent that Swisher liedabout being in combat and the prosecution then took the position that itdidn’t matter whether Swisher lied about his military history, its whatHinkson thought about his military history that counts.[Counterpoint: if the jury had been told the truth that Swisher was never in Korea andnever in combat and never killed anyone in a military battle, then the jury likely wouldhave concluded that his trial testimony was full of lies about his military career and likelywas 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 itthrough the lense of Swisher’s elevated status, as promoted by the prosecution. Swisherprevailed 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 theprosecution corrected the false testimony, as it is required to do by US Supreme Courtand Ninth Circuit law (see fn 17), Swisher would have been exposed as a liar and itwould have been, more likely than not, that no reasonable juror, possessed of all the factswould have convicted Hinkson.]iii. Step 3: Swisher elevated his credibility even further and perpetuatedhis image as a wounded “veteran from the Korean conflict” bywearing the Purple Heart medallion, which constantly testified to thejury as he was on the witness stand that he was a wounded veteranfrom a declared foreign war. Swisher committed a crime by wearing iton the lapel of his black leather coat on the witness stand (with a whitebackground and purple coloring, it stood out like a neon sign, and wasa crime in violation of 18 USC §704(a)). If he had been in the KoreanWar and had been injured in battle (as he said he was in his 2002Grand Jury testimony, see fn 34) he would have been entitled to wear25 Swisher lied to the Grand Jury, in 2002 stating that he had been wounded as a US Marine combatant at the endof the Korean War when he was age 15. Swisher (DOB 01-13-37): “I’m an old disabled veteran and that was allcaused by a hand grenade at the end of the Korean War.” (Swisher grand jury testimony, April 16, 2002, pg. 4, lines21-23.) Answer: [Swisher]: “... I guess that my lower spine from the grenade is pretty fouled up....” (Swisher grandjury 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 78the Purple Heart (if actually awarded to him). When in trial, Swisherchanged his story from being in the Korean War (see ¶ 24, 2002 GrandJury) to being injured in a post-War mission (see ¶ 22(d)), he madehimself ineligible to wear the Purple Heart. Once he asserted that hewas on a post-War mission, he disqualified himself from entitlement towear the Purple Heart because the Purple Heart is only for individualswho have been injured in an officially declared war and Swisher didnot enter the US Marine Corps until after the 1953 Armistice when theKorean 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, chiefprosecutor in the Hinkson Solicitation Case, said he knew that Swisher was wearing aPurple 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 wasnot claiming to be an actual Korean War veteran (because he had been forced to changehis story due to his age) then it was a double law violation for Swisher and the prosecutorto enable Swisher to perpetuate the fraud, and for Swisher to have worn the medallionillegally with the knowledge and consent of the prosecutor, as that was the crime ofStolen 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 hislapel.” (Tr. pg 1115, lns 10-13.) Minimizing one of this nation’s greatest honors given toa 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 reallygoing on here.’ It was an attempt to ‘cover-up’ a crime, and AUSA Sullivan was anaccessory before, during and after the fact.]iv. Step 4: While it is true Swisher did not testify about the Purple Heartaward on direct examination, he wore the Purple Heart which silentlyconveyed a message of heroism and credibility while he testified(prosecutor Sullivan made the following false statement: “TheGovernment never went in on its direct about winning medals orcombat.” Tr. 1114, lns. 21-22. It was the “or combat” that was a directmisrepresentation, because the record is absolutely clear that theGovernment asked Swisher about what “combat situations” weretalked 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 hehad killed “many” in combat on the Government’s direct examination was a lie, because hewas never in combat. On cross-examination, when Swisher (falsely) testified that he wasauthorized to wear the Purple Heart, he simultaneously pulled from his pocket a forgedAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 23 of 78government 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, heproceeded to tell a dozen lies.d. Swisher’s Dozen Lies. Swisher then proceeded to perjurer himself further by tellingthe 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 beforethe 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 Corpsexpeditionary 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 reflectinghis 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 bea 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 otherpurported survivors of that mission, all records had “pretty much been purged;” [when nosuch records existed in the first place] (id. Pg. 1119, lns. 2-4). (See Ex B-7 from 2005Trial, excerpt of trial record pgs. 1116-1119.)e. Forged Document Part of Government’s Case. The four steps mentioned abovemade Swisher’s lies and forgery an integral part of the Government’s theory of thecase, 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 torturemurdersbecause Swisher had “done this before” (that is, Swisher had been in combatand killed “many” human beings previously, and therefore, the Government presumedthat Hinkson believed that such experience would cause him to be willing to killothers for money).f. Limiting Instruction Ineffective as to the Dozen Lies. Because these falsehoodswere inextricably connected to each other, and also inextricably connected to theGovernment’s theory of the case, merely telling the jury to “disregard” part ofAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 24 of 78Swisher’s lies in the limiting instruction was ineffective because it could not erasefrom the juror’s minds the overwhelming effect of Swisher’s false testimony thatHinkson was a ‘mastermind’ who arranged for the torture-murder of other people.Even if the limiting instruction had been comprehensive (which it was not, itspecifically 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) therewas no way that the limiting instruction could “un-ring the bell;” i.e., once the juryheard all of Swisher lies in the context of his claims of heroism there is no way theycould “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 thefelony committed by Swisher, because it covered up Swisher’s false statements withwhat appeared to be officialism, and did not bring to light the fact that Swisher hadnever set foot in Korea, had never been in combat anywhere, had not killed anyoneduring his military service, and in fact, had lied about all of this to the jury. Inaddition, the forged government document (‘replacement DD-214’) was falseevidence and Swisher falsely claimed it had been certified by the USMC. Thelimiting 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 NinthCircuit en banc oral argument hearing in 2009 on the Hinkson Appeal, after Swisher’s2008 conviction) conceded that it knew the truth, that Swisher was never deployed toKorea and never served in combat and was never on a secret mission, was neverwounded and never received any awards and that the Government never informedHinkon’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 thetruth that Swisher was never in Korea, or never in combat or never decorated forvalor? The Government’s statement to the Ninth Circuit would have been a goodstart 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 2002Grand Jury, the 2004 Grand Jury as well as to the Hinkson petit jury in 2005. Shouldthe advisement to the jury also have included a statement that the prosecution offeredfalse information in its Opening Statement? (See ¶ 22(a) “Step 1”.) The answer isthat, according to the case law, both were necessary, and a reviewing court needs todetermine if these false statements violated Hinkson’s constitutional due processrights and whether the falsehoods were material.26 Hinkson’s position is that thesefalsehoods were material as they affected the outcome of the case, and if exposed, it ismore 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 toSwisher, it was easy for the jury to believe the gruesome tale that Hinkson solicitedSwisher to torture-murder various people.27 However, had they been told the truth26 Hayes v. Brown, 399 F.3d 972, 985-86 (9th Cir. 2005) and Judge Tallman’s dissent on materiality at 977 (see fn18).27 Swisher testified: "He [Hinkson] would like to see them stripped, bound and gagged, and then burned withAffidavit of Wesley W. Hoyt Re: Hinkson 28 USC §2241 Petition For Habeas Corpus Page 25 of 78about Swisher’s lies, the playing field would have been leveled so that Hinkson’sdenial of soliciting murder and of ever having attended any meetings where murdersolicitation 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 givenequal weight and consideration by the jury. Further, had Hinkson’s United StatesPassport been allowed into evidence, Hinkson’s creditiblity and truthfulness wouldhave 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 tomurder others was his claim of being “best friends” which justified access to Hinkson’s privateoffice and gave Swisher insight into Hinkson’s innermost thoughts and feeli...[Message clipped] View entire messageReplyReply allForward