by Roland Hinkson
With machine guns and battering rams in their hands–breaking down ten doors–at 5:45 a.m. on November 23, 2002, an FBI-led Swat Team, 25 of whom had loaded, cocked and ready machine guns, with ear-plugs in, all decked out in dark green, almost black Swat gear descended upon my son, David Hinkson, while he was lying asleep. They dragged him out of his warm bed, threw him on the floor, handcuffed him and carted him for three hours to a federal magistrate in Moscow Idaho. However the magistrate, upon hearing the facts, immediately released David upon his own recognizance.
A total of fifty government agents (IRS, FDA and DOJ )raided David’s property. In their group was a hostage negotiator with a bull horn. All of these agents were brought in from a multi-state region and were sent to awaken this dangerous sleeping villain. There was no one else at David’s home or adjacent factory and no one within miles of the place who could have resisted these attacking thugs. It was truly a silly and a pathetic scene: all this fire power to drag one man from his bed.
David went to town daily and was known to the local Sheriff as someone “community minded,” who did not make trouble. There was nothing illegal going on at his factory. This was plainly unmitigated abuse of power by several vindictive government agents. I believe that these agents were attempting to get even with David for his having sued them. Of course, this was a horrible waste of resources and an event that could have resulted in David’s death (if by chance one of these agents had a hair-trigger).
The government could not justify its asinine behavior unless it continued to make defamatory claims about David by demonizing him through the press. To justify their evil actions these agents lied to the public by calling David a dangerous, militant terrorist–there was absolutely no evidence of such. But ultimately, in Court, David was accused of eleven counts of solicitation of murder.
At his trial, on January 27, 2005, David was acquitted of five out of eleven of the charges; the jury deadlocked on three counts; and he was convicted of three counts of solicitation based on the perjured testimony of one man. The government’s star witness for those three counts (of which David was convicted) was a sole accuser, Elven Joe Swisher. With no evidence and no victims, but with only the testimony of this lying blackmailer who later went to prison for testifying under oath for the very same lies he spewed out in David’s Trial, David was sent to Hell on earth.
Even the behavior of the prosecutors and judge was unlawful, if not felonious. The judge breached judicial ethics to hold a secret ex parte meeting with Swisher in his chambers minutes before he testified in open court. The judge had the evidence that the accuser, Swisher, had been lying to the Court and the jury; the Judge chose to ignore documentary proof from the National Records Center that Swisher had been lying, and he allowed Swisher to submit forged documents to enhance his credibility as a super war-hero who was wounded in battle and decorated for valor. The Judge chose to withhold exculpatory evidence from the Defense, to veil over evidence and to outright lie. This is a serious charge but true.
After the verdict was rendered and the trial was over, we learned about the forgery from a representative of the U.S. Marine Corps, who verified that the copy presented in court was not an authentic document but was a forgery; although Swisher was allowed to falsely testify that it had been “certified by the Commandant’s Office of the USMC.” At the time, because the forgery was fairly sophisticated, the judge accepted the document saying that it appeared to be authentic, even though contrary evidence was right in front of him. The Judge failed to adequately investigate the fraud on the Court created by the forgery, and then later instructed the jury to disregard it.
The defense attorneys were prohibited from performing an effective cross examination of the witness who offered the forged document. The evidence showed that the government without question knew of the existence of the forged document prior to Swisher’s testimony on the stand. Yet in discovery the Judge refused to enforce the law against the prosecution–thus making normal disclosure of the document’s existence unavailable to the Defense. When the Assistant United States Attorney handling the case was asked in open court why he failed to disclose the document before the witness testified–even though he had been ordered to produce all “Jencks” materials a week before trial–AUSA Michael Sullivan prosecutor) sneered, “[W]hy should I?”–Thus, showing his contempt for the court, the defendant and the law. It was the quintessential statement to prove the Government’s defiance of the law. But it didn’t stir Judge Richard C. Tallman, a newly appointed judge to the Ninth Circuit Court of Appeals, who had been designated to sit as a trial judge.
This has been a very difficult case. We knew up front well before it started that it would be. The case involves many people (with motives) who had, in the past, given false testimony about my son and false information to the government. Over a period of years, each of these thieving, lying perjurers clinched at every conceivable straw to have David arrested, prosecuted and jailed. These vicious people wanted him convicted and imprisoned for the rest of his life so they could steal his multi-million dollar business.
They conspired to rob him of his assets. Their motives were the same. That is, each had actively participated in the past in an attempt to takeover David’s WaterOz business. As individuals, their attempts failed. But since strength lies in numbers, their desperation to steal the business caused them to band together to falsely accuse David of the most heinous federal “speech” crimes (murder-for-hire) because all it takes to obtain a conviction against an innocent person is for hearsay of one “witness” that the accused had made a threat or solicitation to kill someone. It is heinous because the witness in my son’s case accused David of soliciting a torture-murder of several people, including federal officials. By setting himself up with unassailable credibility as a super war-hero and simply asserted that he had heard my son make certain statements; the accuser, Swisher–without any corroboration—was successful in orchestrating David’s conviction.
Swisher later revealed his own total lack of credibility and his performance in court as a forger and perjurer–which ultimately landed in prison. Judge Tallman disallowed any evidence that would have exposed Swisher as a fraud; nor was he subject to a challenge by the Judge, who after granting a private audience to Swisher (during the trial), seemed to buy into the myth of his Korean combat heroism story.
To countermand the government’s case, my son’s defense team proved that David had said repeatedly to an FBI informant in a secretly taped interview that he did not want to physically hurt anyone, that he was just suing these officials for $50 million. He wanted to use “their Babylonian legal system” against them. This was recorded on a surreptitiously installed “bodywire” that the government placed on an informant. On the wire, David clearly stated when asked if he wanted to kill certain federal officials, he said, “What? I only want to sue them.” This was interpreted by the government as a confession. This is what they used to establish that David wanted the informant to kill officials. Thus, the only non-hearsay evidence in the case, the “wire” was exculpatory of any intent to harm others.
We perceived some enmity toward my son by certain IRS, FDA and FBI agents, as well as Assistant United States Attorneys. Also we believe that some were driven in large measure by a goal to help others steal my son’s business. These Government agents (some of whom were being sued by my son in a “Biven’s Action” for official misconduct in their jobs) have pursued David relentlessly–and without justification.
In his past history, David had been a paralegal; and along with the attorney for whom he worked, he prevented the BLM from seizing some farms, ranches, mining claims and personal property of private citizens in Nevada. Obviously, he was on the wrong side of the law.
This Judge, Tallman, also sat in judgment over David in a case wherein David had failed to file income tax returns after 1995. But In March 2000, he advised certain IRS officials that he was going to file a “civil” lawsuit to have a Seventh Amendment Common Law jury decide whether he was a person required to file income tax returns and to pay income taxes. Immediately the IRS agent involved in the case, referred the case for a criminal investigation (to avoid having a legal civil determination of this issue). This fear of such a suit by my son probably had something to do with the criminal behavior of these agents, who used unlawful tactics .
For failing to file with the IRS, he committed only a misdemeanor–not a felony. In order to serve him with papers regarding a so-called crime in the Tax Case, the fifty government agents descended upon his home and factory to arrest him and to serve papers on him. He was not placed in jail because there was no evidence of any crime worthy of detention nor was any contraband found in either his home or factory because he was living “clean.” He was released on his own recognizance because the court recognized that he didn’t pose a threat to anyone (he is a sort-of science “nerd” who has spent much of his life in a laboratory type of setting inventing–when he was not researching the law or was on talk radio).
The Agents were so offended by the fact that David did not stay in jail after his arrest that they immediately started planning a second attack on him to ensure that he would be incarcerated while awaiting trial. Basically, the government did not like David’s politics because he had thumbed his nose at them and said things that challenged their authority. So they wanted to make him a political prisoner. As David awaited trial in the Tax Case, evidence showed that the government schemed to accuse him of federal hearsay crimes (threats and solicitation for murder of federal officials) because of his political speech.
Every attempt was made to take over his business. Using more skullduggery, the government agents lied to the judge in order to obtain an indictment (and a search warrant), and the government played games with evidence. They had been very manipulative with the grand jury, plying them with all manner of false ideas and testimony. At one point witnesses were called by the U.S. Attorneys and encouraged to testify that my son had killed people (even talk-radio personality Art Bell’s son–who, to my knowledge, is still alive today and lives in Nevada).
Then the same government agents manipulated the court in Idaho into granting a search warrant based on false reports to the FDA of alleged public safety violations. Supposedly, according to the FDA reports, WaterOz products were adulterated and impure. In the end, it was learned that none of these charges were true, but they were used at the time to justify a search warrant.
The Government had been planning a raid on David’s home and factory for over two years in order to “teach him a lesson.” Finally they amassed enough false evidence to obtain a search warrant (which it needed as a predicate to the armed raid it had been planning). At the time of the raid, the allegations of impure products, purportedly endangering the public, were enough to obtain a search warrant. Once the search warrant was obtained, the government had the authority to conduct a raid in any fashion it desired and to garner community support (a first step needed to avoid criticism).
Before the raid, these rogue agents increased their defamation campaign of demonizing David by portraying him as a terrorist. Shortly after the raid, the media asked a few questions about the government’s abuse of power, but they dropped it when those questions went unanswered. However, the sheer weight and constant barrage of misrepresentations about David (that he was somehow involved with terrorism–all lies and based solely on vicious rumors that he was the head of two militias with followers who would do his bidding, that he was a machine gun dealer, etc.,–these false rumors took center stage and supplanted any rational inquiry into the unjustified use of such overwhelming power.
All the fraudulent rumors released to the media by the government, eventually became the story that made the press–not the real story of vindictive government agents who abused their power with the unnecessary use of force (which has all too often resulted in the tragic death of innocent people).
The government, in order to have an excuse to arrest my son a second time, and this time to make sure that he was locked up in prison without the opportunity for bond or bail, sent informants to his home to see if he would make statements threatening to federal officials that could be used to accuse him of solicitation of murder-for-hire. When he made no such statements, the government located his housekeeper, a woman from Mexico, who claimed that he tried to hire her Mexican-national brothers who had “done this before.”–meaning that they had killed US officials.
Then, the government (and their informants) made up what they called “admissions.” These were statements made only in the presence of the accuser, without corroboration, but supposedly made with malice and intent to have the officials killed. Interestingly, the government could only round up pathological liars to do their bidding. These were informants primarily over whom these government agents held some leverage (like dismissing criminal charges against them or paying them money or helping them eliminate David who prevented them from stealing his cash cow business).
At trial, the Jury was not convinced of the government’s lies and solicitations. However, they did believe the statements of the witness standing in front of them with a replica Purple Heart on his lapel of whom they believed was a decorated veteran–especially because the prosecution vouched for him, and the judge allowed them to lie to the jury when he produced forged documentation to prove his entitlement to wear the Purple Heart and other coveted medals.
He sounded credible and convincing when he claimed to have been within six hours of finishing his doctoral thesis in psychology and when he testified he was an active mental health counselor with an LSWII certification. Also he testified that he was a coin dealer and a gold miner. In addition, he declared that he was a U.S. military combat hero. He claimed that the Marine Corps decorated him with various coveted honors including the Purple Heart Medal for service following the Korean War–Note he had publicly claimed, until confronted, that he served in the Korean War. When, an investigation showed that he was age 13 to 16 during the Korean War, he changed his story to say he had participate in a post-Korean War combat campaign.
The picture of this pathological liar was only beginning to surface. The Purple Heart was not an award for which he ever would have been eligible because it could only be conferred upon someone who was wounded in a declared war, not injured in a post-war combat. Just being in court with a replica Purple Heart on his lapel was a self-admitted law violation that the trial judge would not enforce. This masquerade allowed Swisher to flaunt himself before the jury as a defender of America, and without the truth. What else was the jury to believe?
The government’s theory of prosecution was that since this witness had, as he had professed, killed many people in combat, that David had supposedly approached him thinking that he was a likely candidate to be a hit-man to kill federal officials. In order to bolster his credibility, he wore the replica Purple Heart Medal on his lapel while testifying in the court room. When questioned about his entitlement to wear the Purple Heart, he pulled from his pocket, what he swore was a “Replacement DD 214”—this document was, as we later learned, a forgery.
Witness Swisher claimed that David (who is a pacifist, who sues people to use the system to bring people to justice, who is a philanthropist willing to give away about as much product to the sick and needy as he sells) supposedly pleaded with Swisher to torture murder the designated government officials and their family members. Of course, my son did no such thing, but in a one-on-one “he said” “she said” dispute, it is impossible to prove who is right. The only question is, who can be believed. And that is why proving that Swisher had no credibility was critical to my son’s defense and why the judge denied him the chance to defend himself–by presenting to the jury the one piece of evidence that proved Swisher was a liar.
Swisher’s own United States Marine Corps military record, which lay upon the judge’s bench– right in front of him–but which the judge ruled could not be shown to the jury. Three years later, that same military record was used to prove Swisher perjured himself and presented these same forged documents to the VA in 2004 to obtain hundreds of thousands of dollars of disability benefits. He claimed war wounds of which he did not have–Swisher went to prison for telling the same lies to the VA that he told to my son’s jury.
Yet, in a grievous injustice, my son was denied the opportunity to prove what the government knew all along and what sent Swisher to prison, that Elven Joe Swisher was a fake war hero, a man who had been court-martialed and busted to private-first-class and never set foot in Korea, that Swisher was a liar and an impersonator of the real heroes of the U.S. military–those who fought and died for our freedoms.
If the jury had learned the truth, juror Ben Casey (a cousin of Magistrate Williams) said in an affidavit that he never would have voted to convict David Hinkson. At the time Swisher claimed that my son solicited him he had just received a pacemaker in open heart surgery, and he was wearing a bladder bag. In earlier testimony he mentioned that his bone spurs were so bad he could not walk and that David’s products had cured him. On the one occasion when David visited Swisher’s home he was entirely disabled and was in a wheel chair with a catheter and bladder bag.
On at least four occasions in the past, this witness had tried to extort either money or a percentage interest in David’s business. Just a year previous to his perjured testimony in Court (January 2005) Swisher sued David to steal, through the court system, $522,000 using the guise that the suit was to collect on promises made for unpaid debts. There had been some monies owed as Swisher had been engaged to test the strength of my son’s mineral product, but all claims were fully paid according to Swisher’s own prior testimony. In addition he had participated in a failed hostile takeover of WaterOz thirteen months before the Solicitation Case Trial (of January 2005). Clearly, he was very anxious to have David spend the rest of his life in prison so that he could complete his plan to steal David’s business.
The end result is that David was convicted on three counts for something he did not do, for something which there was no corroboration and which was bolstered by a forged document. All laying at the feet of Ninth Circuit Court of Appeals Judge Richard C. Tallman (who acted like a black robed prosecutor instead of a neutral judge.
The whole case should have been dismissed, and David should have been acquitted of all the phony charges. But, I believe, Tallman was trying to build support from the U.S. Department of Justice for a day when he would seek appointment to the U.S. Supreme Court; and by destroying my son’s life (with an insane 43 year sentence) he validated the phony charges. It was a dishonorable price that he had been willing to pay to show his loyalty to the prosecutors. Judge Tallman had to protect his reputation, but I doubt that he ever believed this case would see the light of day. Now the Lying Judge is coming under public scrutiny.