From the en banc Ninth Circuit in a federal criminal case, United States v. Hinkson, No. 05-30303:
Sounds a tad like 28 U.S.C. ยง2254(d), doesn't it? The opinion is by Judge Bea, with the dissent by Judge W. Fletcher. The vote is 7-4. Hinkson is a tax loony who had the misfortune to draw a Ninth Circuit pseudo-en-banc panel with a majority of persons of sense. In poker, that's called a "bad beat." The portion of the opinion summarizing Hinkson's claim is after the jump.
Today, after review of our cases and relevant Supreme Court precedent, we re-state the "abuse of discretion" standard of review of a trial court's factual findings as an objective two-part test. As discussed below, our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.
Applying our "abuse of discretion" test, we affirm the district court's rulings.
Sounds a tad like 28 U.S.C. ยง2254(d), doesn't it? The opinion is by Judge Bea, with the dissent by Judge W. Fletcher. The vote is 7-4. Hinkson is a tax loony who had the misfortune to draw a Ninth Circuit pseudo-en-banc panel with a majority of persons of sense. In poker, that's called a "bad beat." The portion of the opinion summarizing Hinkson's claim is after the jump.
David Hinkson refused to pay income tax on his business profits. He asserted the United States Constitution forbade the federal government from taxing a person's income. He was investigated by Internal Revenue Service Agent Steven Hines, prosecuted to a conviction for income tax evasion by United States Attorney Nancy Cook, and sentenced by United States District Judge Edward Lodge.The nerve of that guy, misrepresenting his qualifications as a hit man and torturer. Clearly we need some new consumer protection regulations to deal with such fraud.
While awaiting trial on his tax evasion case, Hinkson solicited his friend and employee Elven Joe Swisher to torture and kill Hines, Cook, and Lodge, for $10,000 per head. Swisher reported Hinkson's solicitations to federal authorities.
Hinkson was indicted, tried, and convicted by a jury for solicitation of the murder of the three federal officials. Swisher testified on behalf of the government.
Hinkson then moved for a new trial principally on grounds that Swisher had fraudulently presented himself to Hinkson, and later to the judge and jury, as a Korean War veteran with experience in killing people, but he had no such war service nor experience. In brief, Swisher had falsely held himself out to be a war hero. The trial court denied the new trial motion.
Hinkson appealed this denial of his new trial motion and several evidentiary rulings made by the trial court.
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