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Dennis Riodan Letter to j9th Circuit As Acting Council For Dave Hinkson
Clerk, U.S. Court of Appeals
for the Ninth Circuit
95 Seventh Street
San Francisco, Ca. 94103-1526
April 21, 2008
Re: United States v. Hinkson, No. 05-30303; No. 05-30305
Dear Ms. Catterson:
The above cited double appeal was argued in Seattle on May 7, 2007 before Judges McKeown, Hug, and Fletcher, W.
In a Rule 28(j) letter sent to the Court on September 21, 2007, defendant-appellant David Roland Hinkson brought to the Court’s attention the fact that the United States Department of Justice had indicted Elven Swisher, the only witness to testify to the alleged conduct of which Hinkson was convicted in No.05–30303. United States v. Elven Swisher, CR 07-0182 (S BLW). The charges were:
1. The unauthorized wearing of military medals between July 2004 and August of 2006, a misdemeanor.
2. False statements by Swisher between June of 2003 and August of 2006 that he “was involved in combat operations during his military service, was awarded the Purple Heart, Silver Star Medal, Navy and Marine Corps Medal (Gold Star in lieu of the Second Award) and Marine Corps Commendation Medal with Combat “V”and suffered from Post Traumatic Stress Disorder as a result of his alleged combat experience, all in an effort to obtain additional benefits to which he was not entitled.”
3. Using a “forged, counterfeit or falsely entered certificate of discharge [“DD 214."] from the United States Marine Corps to obtain veterans benefits to which he was not entitled” between February of 2004 and August of 2006.
4. Theft of veterans benefits between 2004 and August 2006 by use of the same forged “DD 214."
Defendant-appellant Hinkson now requests that this Court take judicial notice of Elven Joe Swisher’s recent criminal convictions. On April 9, 2008, Swisher was found guilty in federal court in Boise, Idaho, of all of the above-described charges. A copy of the government’s press release announcing those convictions is attached to this letter.
Fed. R. Evid. 201(b) allows a court to take judicial notice of facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” That includes criminal convictions and adjudications in related proceedings. Conopco, Inc. v Roll Int'l, 231 F.3d 82 (2d Cir. 2000); Kowalski v. Gagne, 914 F.2d 299 (1st Cir. 1990); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236 (4th Cir. 1989); Morales-Alvarado v. IMS, 655 F.2d 172, 174 (9th Cir. 1981); Davis v. Cotov, 214 F. Supp. 2d 310 (E.D.N.Y. 2002). It also includes transcripts of related proceedings. United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987).
Fed. R. Evid. 201(f) states that “[j]udicial notice may be taken at any stage of the proceeding.” Thus, an appellate court may take notice of facts brought to light for the first time on appeal. United States v. Esquivel, 88 F.3d 722, 726-27 (9th Cir. 1996); Mueller & Kirkpatrick, Evidence § 2.10 (3d ed. 2003).
By these convictions, it is now placed beyond dispute that when Swisher entered the courtroom to testify against Hinkson wearing a phony Purple Heart commendation, Swisher intended to, and did, commit the same crime of the unauthorized wearing of military medals of which he was just convicted. Swisher also intended to and did proffer against Hinkson the same forged document which served as the basis of two of his convictions, and told under oath the same lies for which he was convicted on a fourth count. Mr. Hinkson further notes that Mr. Swisher’s convictions qualify as “crimen falsi” offenses that would be admissible per se as impeachment evidence pursuant to Fed. R. Evid. 609(a)(2).
Furthermore, as the government must concede, it obtained the convictions against Swisher by placing in evidence a mountain of evidence drawn from its own records that proved beyond any doubt that Swisher’s claims of combat wounds and heroism in Korea were unmitigated rubbish. The very fact that this evidence was placed in evidence against Swisher by one prosecutor from the Department of Justice establishes that it was available to the Justice Department officials that prosecuted Hinkson. Thus AUSA Sullivan either knew, or should have known, that he was misleading Hinkson’s jury when he stated in his opening statement that Swisher “was a Marine, a Combat Veteran from Korea during the Korean conflict...” (ER 19; RT 290-291) See United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993), citing United States v. Wallach, 935 F.2d 445, 457 (2d Cir.1991) ("We fear that given the importance of [a witness's] testimony to the case, the prosecutors may have consciously avoided recognizing the obvious--[that he] was not telling the truth.").
Mr. Hinkson notes that the government has a continuing obligation to provide to this Court and the defense the Brady/Giglio material it made use of during Mr. Swisher’s trial. See Kojayan, 8 F.3d at 1322.
I thank the Court for its consideration of this matter.
Sincerely,
DENNIS P. RIORDAN
Attorney for Appellant
DAVID HINKSON
DPR/jy
Enc.
cc: Alan Hechtkopf, Assistant U.S. Attorney
Michael Taxay, Assistant U.S. Attorney
From: remelin@suddenlink.net