Date:   6/10/2005 11:32:44 PM ( 19 y ago)
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ROLAND HINKSON
Box 5
Ouray, Colorado, 81427-0005
Phone (970) 325-4522; Fax (970) 325-7262;

For Immediate Release
Date: January 6, 2005

“On the morning of 21 November, 2002, [at approximately 5:00 a.m.] I was startled out of a sound sleep by screams. I looked over at the door and saw approximately eight men storming into the room dressed in black and holding machine guns. I heard over and over, “Freeze, mother f***er.” Then I heard someone say, “Where is your gun?” as I was being held down. “All of the machine guns were pointed at me. I was still partially asleep when the only agent not in SWAT or military dress dragged me out of bed. I did not at this time know who this agent was [or why they accosted me].” We now refer to this incident as the “RAID.”

David Roland Hinkson, owner and founder of a company called WaterOz (that employed about 40 people) was about to begin his journey through Hell. He had previously sued several agents of the IRS and Justice Department. FBI agent Will Long had threatened David: “I’ll put you away for the rest of your life.” Why? What had David done to merit this Gestapo type assault? In the following account David tells his dreadful story.

As father of the accused, I’m aware that I am automatically considered biased and non-subjective. Regardless I can not close my eyes to what I have seen. I doubt if anyone honors and loves the Constitution of the United States of America more than I do. How proud I’ve been of this, “My Country. But as Patrick Henry said so eloquently, “Are we disposed to be of the number of those, who having eyes, see not, and having ears, hear not, the things which so nearly concern [our] temporal salvation? . . . I am willing to know the whole truth; to know the worst, and to provide for it.”

I’m categorically accusing agents within the United States Government of criminal conspiracy. This Conspiracy has been ongoing for several years in the name of the United States Government . Unbelievable, radical? You be the judge. But the Conspiracy is provable. Moreover all evidence of the following described prosecutorial misconduct, outrageous government conduct and vindictive prosecution are backup by citations and supporting documents.

However most people would rather hug the illusion that their “System” of justice is fair and honorable. Certainly, the presumption of propriety must rest with our public “defenders” and our courts. Right? But what if the System is broken? What if rogue elements within the System are operating outside the law? What if our Constitution is being or has been overthrown? But before we go on with the story of Why David was besieged by the Federal Government, it will be enlightening for readers to have additional insight into the current status of American “justice” and media shortfall.

Congressman Ron Paul said, “Perhaps no important document is held in less regard in Washington, D.C., than the United States Constitution. In fact, the attitude of many Congressmen and government officials toward the Constitution consists of giving lip service to it by refusing to take it seriously. It is considered obsolete, written for agrarian economies; and our highly technological society has supposedly moved far beyond its limits. It is to be referred to only when convenient and ignored when inconvenient. Such men believe that truth is a passing fad, that principles change like fashions, and that men, particularly men who are politicians, must never be chained down by the written law of constitutions.”

“The American legal system has been corrupted almost beyond recognition,” Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28, 2004. She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. "The integrity of law, its religious roots, its transcendent quality are disappearing.”

My observation is that there is no longer separation of powers. Judges now make the laws -- contrary to our Constitution. The judges usurp power specifically denied them by law. Where lower court judges have blatantly turned a blind eye to violations of the law by the Executive branch, the Supreme Court of the United States refuses to take the cases or acknowledge gross errors in judicial ethics. In fact, it appears that our judges have formed a Conspiracy or secret combinations with agencies such as the IRS and FBI. As unbelievable as it may seem, we have no advocate for justice in the judiciary in America today.

President Jimmy Carter was concerned back two decades ago when he signed the Judicial Conduct Disability Act of 1980: He said that the “independence of the judiciary cannot be absolute: it should, by necessity, accommodate the democratic principle of accountability. Judges, like any other public servants, should be accountable under the law.” But are they?

Former US Ambassador to the United Nations Economic and Social Council, Alan Keyes, said, “If federal judges act in such a way as to substitute judicial dictatorship for government based upon the consent of the people, then they have not simply abused our Constitution, they have fundamentally altered our form of government. They have destroyed it, and in so doing, have deprived the states of that which the Constitution clearly says the United States must guarantee to the states: a republican for of government… we are dealing with constitutional violations that could become the cause for civil unrest, and even war.”

To whom do we, the American citizens rely upon to search out the truth? What if the media are so intimidated as to not want to “rock-the-boat.” Carrying stories adverse to the government can draw fire. There are, of course, rationalized pretexts: Insufficient funds for investigation, the government doesn’t lie or -- what other excuses the timorous publishers can conjure up. What of the Associated Press’ Code of Ethics: a “good newspaper is fair, accurate, honest, responsible, independent and decent. Truth is its guiding principle. It avoids practices that would conflict with the ability to report and present news in a fair, accurate and unbiased manner.”

Victor Malarek, the renowned investigative journalist, said that investigative journalism is without question the news media’s most precious asset. “It is society’s watchdog, playing a vital role in a free and democratic society. And while journalistic sleuths cannot be expected to expose every scandal, their very presence keeps government officials, corporate CEOs, powerful individuals and unsavory characters glancing warily over their shoulders.”

Former Congressman Robert Bauman, JD, lecturer and author of many books on international issues, testified that government actions “have been the greatest killers throughout history. . . All extreme right and left wing governments are ruthless, inhuman and well-organized oppressors . . . . governments are, always have been and always will be dangerous, warlike and immoral institutions.” He declares that there are so many “ridiculous and destructive laws that . . . that one can not get out of bed . . . without breaking enough laws to go to prison.” It is of interest to note what Forbes Magazine published on December 5, 1997: “There are well over 3,000 federal crimes, including 1,700 that cover minor or regulator matters. Beyond that, 10,000-plus actions have been made into crimes by regulators.” One in every 32 adults in America is either behind bars or on parole. The United States of America has less than 5% of the world’s population, yet it has over 25% of the world’s prisoners. What percentage of Americans are unjustly convicted? Is there something wrong with our justice system? Or are we just a worse society?

The late Supreme Court Justice Louis D. Brandeis warned: “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding. U.S. Government agents may boast of cleverly turning criminals into instruments [or agents] of law enforcement [informants], but in this crude process law officers have become willing co-conspirators in crime—and too often, criminals themselves.” These instruments of law enforcement are recruited from the ranks of the nefarious. They are called “Informants.”

In his book The Best Defense, Harvard law professor Alan Dershowitz offers some little-known rules he says that "govern the justice game in America today." Rule IV is, "Almost all police lie about whether they violated the Constitution in order to convict 'guilty defendants' . . . That is certainly accurate when it comes to the use and/or manufacture of police informers. It is now commonplace for police lacking a ‘reliable informant’ on which to base a request for a search or arrest warrant, to invent one. Lying by police to support questionable criminal charges against suspects has gone on for years….”

Congressman Henry Hyde believes that "most Americans don't realize the extent to which our constitutional protections have been violated and diminished in recent years.” Neutral observers, libertarians like the Cato Institute, political conservatives like Hyde and Judge Trott, have joined with liberals and others on the left like Professor Dershowitz and Philip S. Gutis, media relations director of the American Civil Liberties Union (ACLU). They believe unchecked police informant use constitutes a serious danger to individual liberty.
Although the Sixth Amendment, part of the U.S. Constitution's Bill of Rights, guarantees an accused person the right "to be confronted with the witnesses against him," courts have held this is not absolute and usually applies at trial, but not always in preliminary stages of investigation and indictment. These rulings supporting the so-called "informant's privilege," allow secret accusers to avoid risk of exposure by having to testify in public. Instead, a police officer seeking a search warrant simply repeats before a magistrate, or testifies before a grand jury about what he was told by "a reliable informant." Of course, this is totally unconstitutional.

Michael Levine, a retired 25-year veteran of both U.S. Customs and the Drug Enforcement Agency (DEA), estimates there are currently at least 15,000 informers on federal payrolls, not counting many thousands more paid by state and local police. His estimate does not include more than 10,000 informants who claim money rewards each year for reporting fellow taxpayers to the IRS, or the nearly 1,000 so-called "controlled informants" the IRS pays to inform on others, some of them tax accountants …. Levine, retired in 1990, charges that informants, earning three or four times more in government pay than the DEA and FBI agents who are supposed to be their bosses, have literally taken over most criminal investigations. Says Levine, "Our rights as citizens and the U.S. Constitution are now in the hands of 15,000 wild, out-of-control informants. If you get in their way they will take you down, and government agents are ignorant enough or lazy enough to let them do it. The highly unfair result: most [accused] criminal defendants never find out who accused them of wrongdoing, unless prosecutors decide an informant's testimony at trial is essential to convict.”

Prosecutors, police and federal agents defend this system, arguing informants are indispensable in organized crime, Terrorism and white-collar crime cases. But what type or amount of punishment, if any, is handed out to government conspirators? The law is clear; however, it isn’t enforced. Only the lay American civilian has to fear. Is there a safety valve? Yes. Is it enforced? No. Fraud and False Statements (in U.S. Code Title 18, Sec.1001) provides whoever knowingly and willfully falsifies, conceals, or covers up a material fact or makes any materially fraudulent statement shall be fined or imprisoned not more than 5 years, or both. Guess what! If it’s lying or deceit by government agents in pursuit of a “crime,” they’ll hardly ever be brought to justice.

While the public only learns about major informant cases that go wrong, there are thousands of accused persons fingered by a "friend" for a crime they did not commit. Carefully controlled use of informants has a place in proper law enforcement, but what kind of justice is it when prosecutors boast of charges against a businessman whose employee or associate settles a score with an anonymous accusation of criminal conduct?

“Most Americans,” said Bauman, “know little or nothing about the widespread domestic use of police informants—and few government and police officials are willing to talk openly about this big, dirty secret. Betrayal is an essential element in the government police-informant game, but the repeated betrayal of basic constitutional principles guaranteeing our freedom is the real menace to society . . . Shrouded in secrecy, informers don't want publicity about their nasty work. They want lenient treatment for past crimes, money rewards and sometimes revenge. . . . Individual informants do receive princely sums from the U.S. Treasury, a grotesque example of tax dollars at work. Like U.S. lawyers, informers are sometimes paid on a contingency fee; the total value of property they finger for successful forfeiture determines how much money the government pays into their personal bank accounts. So-called ‘cooperating witnesses’ receive 25 percent of the value of property seized by the government in any one case, with a maximum cap of US$250,000. “A U.S. House Committee on Government Operations report in August 1992 showed how well informers are doing for themselves, revealing that in 1990-91, the Justice-Department paid 65 informants more than $100,000 each, 24 were paid between $100,000 and $250,000, and eight got over $250,000 each.”

Now moving on with David Hinkson’s story. Former Idaho County district attorney Dennis Albers was running for re-election when David had sent out 10,000 letters to the voters in Idaho County that Albers had been barred from running because of his past serious violation of ethics. Albers was soundly defeated, crestfallen from an assured victory.

“I’ll put you in jail and get your business,” Albers swore. Thereupon he orchestrated an unrelenting attack on David. He conspired with Annette Hasalone, a former WaterOz employee (that David had helped through her illness), and others to destroy David’s reputation and tried to seize his business.

As we observed in David’s case, the Federal Government has established a beachhead in our back yards with “agents” in black swat team suits, with bullet proof vests unobtrusively scouring our streets and praying on innocent citizens. Dismayed citizens have experienced the onslaught. With machine guns, in early morning hours (using local authorities to block the roads to keep neighbors out), they perform their dirty work. Their work -- often based on false accusations -- allows them nearly total immunity and impunity. The judges don’t even call for sworn affidavits to justify the warrants they sign. These insidious acts are being conducted while the public is asleep or in a frenzy making a living or being entertained.

David took the risks and did act. He has been painted as a vile criminal by cowards who hide behind the badge of authority. Who then is David Roland Hinkson? David was brought up with a respect for the law: to obey, honor, and sustained the [just] laws of his Nation. Whenever or wherever he encountered fraud, deceit or treachery, right or wrong, he felt compelled to expose it. In standing up in the defense of truth, rather than cowering in apparent safety, he spoke out. For that, he was slammed into prison. Yes, today it is David Hinkson. Tomorrow it could be you being investigated or charged with crimes you didn't commit because an informant pointed the finger at you.

Consequently, it appears to me that there are two major reasons that David has been vilified and condemned by various persons within our Federal Government:
(1) He was a whistleblower and
(2) he sued personally the very same persons who have been persecuting and prosecuting him. The first reason is sufficient to get higher up powers to sustain a scam of this magnitude, and the second reason is a personal vendetta. There may be a third reason (as suggested by some persons): pharmaceutical companies. But we won’t go into that now. Regardless of who’s ultimately responsible, the taxpayers get the bill.

In a nutshell, David had challenged the authority or lack thereof of federal agents. He filed a suit against AUSA (Assistant U.S. Attorney) Nancy Cook. David reminded me on December 29, 2004, that his first attorney (McHaffey (sp) in Moscow, Idaho) told him that Ms. Cook offered to drop the case against him if he’d drop the law suit against her. He recalled that that occurred about December 15, 2002. I fully remember the incident but couldn’t recall the date. I checked my diary to see if I had made an entry. I had. At 4:00 p.m. on December 15, 2002, my entry said, “Dave H. -- Discussed response to Gov. fraud etc.” That was sufficient to trigger my recollection of the conversation. It was of particular significance to me because of what I had told David: “I wouldn’t drop the suit against these people because they will just attack some other innocent victim.” David relied on my advise and judgment. I have felt sorry ever since for the consequences which followed.

He filed a lawsuit against IRS agent Vernon (alias Morgan) and Jack Cheskaty, district director of IRS (Coeur d' Alene, Idaho) stating that “actions against [David] are malicious and intentional with deliberate indifference and callous disregard of Plaintiff's rights, depriving Plaintiff of his right to be free of unreasonable searches, in violation of the Fourth and Seventh Amendments to the Constitution of the United States. 42 U.S.C. § 1983. “WHEREFORE, Plaintiff, David Roland; Hinkson, demands judgment against Defendants Jack Cheskaty and G. Morgan jointly and severally, for compensatory damages in the amount of $250,000.00, and further demands judgment against each of said defendants, jointly and severally, for punitive damages in the amount of $250,000.00, plus the costs….” The action was merely ignored by the IRS and “Justice” System. Yet rather than respond in a legal fashion, these sneaky persons chose to outright destroy David -- to ruin his business, destroy his reputation and ultimately put him in prison for life. That’ll show him -- was their apparent attitude. Agent Long, as mentioned earlier, said, “I’ll put you away for the rest of your life.”

The fix was in. Agent Long conspired with a couple reprobates (who incidentally were paid by the Feds) -- one in particular by the name of J.C. Harding. Long (hiding in the bushes outside for about 3 ½ hours) had sent Harding to David attempting to entrap him. David was a pushover. He trusted everyone. Harding made his glib entry into David’s house, and David dined him. Then Harding, following Long’s instructions, tried to get David to say he wanted to hire someone to kill three people.

On the radio over a long period of time, David had described the criminal behavior of many government officials. He called District Court Judge Edward Lodge a criminal, Dennis Albers a crook and AUSA Nancy Cook a perjurer and forger. He claimed to have evidence. The conversation as recorded on a body-wire was nearly all stupid talk. Time was running out for Harding so he pushed harder to get David to say something incriminating about the above three persons. David had explained, “I’m going to bury them with the law.”

HARDING: “So you’re going to murder them. What are you going to do? What can you do?
MR. HINKSON: I’m going to sue them.
HARDING: Right.
MR. HINKSON: That’s what I have been doing. That’s the frustrating part. The only thing we got is the court system -- which is so crooked.”
HARDING: “Got you. Hum, so you think you can beat them at their own system?”
MR. HINKSON: “Yeah.”
HARDING: “I want to know something for sure. This is dead serious what I’m asking you. You talked to me about this on a couple of occasions. [David states unequivocally, “This was a bald-faced lie.” David had told numerous people about his disgust of his tormentors -- not that he‘d kill anyone]. Do you want to do it? Do you not want to do it?
MR. HINKSON: What!
HARDING: Your problem with three wise men.
MR. HINKSON: I’m just suing them.”
By request of David’s prior attorney, this recording was turned over to him as discovery evidence. The government never offered it in Discovery. At the forthcoming hearing after David was taken into custody, Agent William Long testified that David had admitted he wanted to hire Harding to murder these people. He later admitted his own perjury by saying “I testified erroneously.”
Fortunately for David, he finally found an attorney who is intrepid. Wesley W. Hoyt, himself a former prosecutor, and son of the former publisher of the Denver Post, quickly learned what was happening to David. Even though it has cost David nearly $2,000,000.00 to prove his innocence, most of that money has gone to opportunists that have merely fleeced David while he is down. Attorney Hoyt is extremely unusual. He uncovered most of the story that follows. It has been extracted from his briefs and motions.

WESLEY HOYT’S ACCOUNT
(as paraphrased by Roland Hinkson)

David, through his attorney, Mr. Hoyt, has charged the government with prosecutorial misconduct, outrageous government conduct and vindictive prosecution. He asks for dismissal of the phony charges. He asserts that he was falsely accused by multiple government informants, including one Mariana Raff, who alleged, according to testimony of Will Long, that David was an international terrorist. David states that there is no evidence that she made such statements. Accordingly she set forth a fabricated story as to crimes he did not commit. Her motivation to fabricate could come from the fact that she had stolen $6,600.00 from David. Further, she had helped her family members steal over $100,000.00 from him in a Mexican real estate purchase scheme. With David in jail, neither she nor her family would have to be accountable or responsible for the funds stolen. The government only recently revealed proof that Raff’s totally fabricated story was obtained three months earlier.

Two statements have been written by FBI agents for Mariana Raff (related to early April 2003,)
(1) accusing David of trying to hire her brothers in Mexico to murder federal officials in Idaho and
(2) she also made statements about Hinkson’s intent to use his international business and banking connections to flee prosecution (making him a “flight risk).” Raff’s credibility has now been completely destroyed.

Seventeen months afterward (September 15, 2004) Mariana Raff supposedly advised the FBI that her brothers, in Mexico, were approached by Hinkson when he was in Mexico to kill federal officials in Idaho. FBI Agent William Long called Mariana Raff ’s brother, Juan Carlos Martinez-Piedras, (in Puebla, Mexico). He stated that Mr. Hinkson had been contacted by him regarding the purchase of real property in connection with the WaterOz business. When asked, Juan Carlos denied Hinkson tried to hire him to kill anyone (including federal officials in Idaho). He stated that they did not even discuss homicide. Lonnie Birmingham had accompanied David and Mariana Raff to Mexico. He was present when the trio met with the Raff brothers. Prior to the time when the Idaho Federal grand jury was first convened (September 15, 2004, and in March, 2004) to review the Threats Case, Lonnie told the government that Mr. Hinkson did not offer to hire the brothers to kill anyone.

Central to the issue of vindictive prosecution is the government’s continued pursuit of claims that it knew were not true, or at the time the government elected to pursue them, they had reason to believe the statements were not true. Prosecutors were knowledgeable that David was not guilty of being an international terrorist. They volunteered the Raff lies twice to the Court in two separate detention hearings. They did so as David‘s attorney, Wes Hoyt, described “with calloused indifference as to the truth thereof merely to hold him in jail.” The following is a summary of circumstances and events of prosecutorial misconduct, vindictive prosecution and outrageous governmental conduct, which is the basis of this motion.

David has been incarcerated for twenty-one months as a result of the fact that the Court has given credit to Mariana Raff’s false statements if in fact, she even made them as submitted by FBI Agent William Long. The reason for David’s confinement was related to the May 5, 2004, conviction, pending sentencing in the Tax Case. Now he is being held (jointly on the post trial conviction in the Tax Case and the Detention Order of July 7, 2004) in a Threats Case.

Charges and scheduling are summarized as follows: in the tax case -- 16 IRS tax-related failure to file income and employment tax returns violations, 10 FDA-related adulterated and mislabeled product violations, 16 IRS-Treasury structuring currency transaction violations and one count of forfeiture. He was convicted by a jury on May 5, 2004, of 16 white-collar crimes. Also he pled guilty to two FDA “control person” type vicarious liability offenses (related to selling a misbranded product and a medical device). The rest were dismissed. Sentencing on these violations is now scheduled to occur after the trial of the Threats Case.

The Threats Case is scheduled to begin on January 10, 2005. It involves a superseding indictment containing, in essence, twelve counts of alleged violations. These charges involve the spoken word that are inchoate; they inflicted harm on no-one. Nine counts of the superseding indictment are for allegedly soliciting murder of federal officials. Two counts are for purportedly threatening to murder the children of federal officials. And there is an enhanced penalty ‘count’ (under a separate heading entitled “Sentencing Aggravators” pursuant to United States Sentencing Guidelines) seeking an upward departure or increased sentence. These penalty counts are based on an allegation that each of the first nine offenses involved offered something of pecuniary value. All eleven primary offenses were motivated by the federal official’s status, and all eleven primary counts involve violations that occurred while defendant was on release.
The Federal District Court and the Ninth Circuit Court of Appeals have not allowed David to have an evidentiary hearing to challenge the hearsay statements of government informants. He doesn’t even know if Mariana Raff had made the statements. Regardless the hearsay statements to the Court have now been proven to be a fraud.

David had worked as a volunteer paralegal, according to his testimony in the Tax Case trial, and (in the late 1980s and early 1990s near Las Vegas in Clark County, Nevada where he lived) became interested in exposing government corruption. In one instance, he printed and distributed 600,000 fliers in his effort to expose a corrupt scheme involving a “turtle fee.” These fees were intended as environmental mitigation fees but were being collected unlawfully under the auspices of the Endangered Species Act. David charged the County commissioners and other State and federal officials of profiting at the expense of property owners. Four out of five Clark County commissioners were not re-elected largely due to David’s efforts. During the same time period, he helped ranchers and farmers avoid seizure of their lands by the U.S. Bureau of Land Management. He asserted that the BLM was misquoting the Endangered Species Act and did not have the power it claimed.

After he moved from Nevada, he built his WaterOz factory in Idaho and began manufacturing and distributing dietary supplement mineral waters. Eventually he became the subject of the IRS investigation as explained above (for failing to file personal income tax returns and employment tax returns). He openly confronted the IRS on the Lou Epton show, which also demonstrates that he really believes they were a fraud. He actually invited confrontation with them.

Internal Revenue Service Agent Gerald Vernon notified Hinkson on March 9, 2000, that he was being pursued “civilly” in the tax issues; that is, he led Hinkson to believe that the IRS investigation was civil in nature. Discovery in a separate lawsuit (Records from the Idaho Department of Labor --“IDOL”) show that (in February 2000) Criminal Investigation Division (“CID”) officer Ms. Lori Campbell was, in fact, investigating him.

In reliance upon IRS representations that the claim was being handled as a civil matter, on March 15, 2000, Mr. Hinkson faxed a notice to Agent Vernon that he intended to file a civil suit against him. This suit would establish his Seventh Amendment right to impanel a common law jury to decide whether he was required to file tax returns.

After receiving notice of Mr. Hinkson’s intent to file a civil lawsuit, on March 22, 2000, (Vernon had been on sick leave for five days) he immediately made an official referral of Hinkson’s case to the IRS Criminal Investigations Division. His purpose in taking such action, Mr. Vernon testified (in the Tax Case), was based upon alleged threats of harm. He testified that threats of harm were made by Mr. Hinkson against third parties such as former WaterOz employee Steve Bernard -- not because of Mr. Hinkson’s notice of civil suit. In fact, Vernon agreed in his testimony that it would have been improper for him to have referred the case to CID simply because he had been notified that a citizen wanted to file a civil suit.

Agent Vernon perjured himself when he testified (in the Tax Case) that Steve Bernard told him (in a phone call of March 6, 2000) that he, Bernard, “. . . feared reprisal from Mr. Hinkson. . .” and “. . . that he was afraid that Mr. Hinkson would have him shot.” Mr. Bernard stated under oath that, after reading Agent Vernon’s testimony in the Tax Case, “I was quoted as having previously reported to him [Vernon] on March 6, 2000, that Mr. Hinkson threatened to ‘shoot me.’ In fact, I remember that conversation, and I never said or implied that I believed Mr. Hinkson would harm me, or that he was capable of harming me. Specifically, I didn’t say Mr. Hinkson intended to ‘shoot me.’ I merely said that being an undercover federal agent in Idaho could get a person shot. In his testimony, Agent Vernon added something that I didn’t say, and apparently he forgot to mention or simply left out the important part of my statement that I wasn’t afraid of Mr. Hinkson and didn’t consider him a threat.”

Agent Vernon proclaimed he was going to “get” Hinkson. Idaho Department of Labor “IDOL” Senior Unemployment Insurance Tax Representative Shawn McDonald testified that Agent Vernon told him the same thing, “We’re gonna raid this place [Hinkson’s WaterOz factory].” Agent Vernon was spreading vicious rumors that “Hinkson was dangerous, had semi-automatic and automatic weapons and was a coward, with followers who would perform acts of violence (See Correspondence of February 18, 2003).” Further evidence obtained in a separate lawsuit shows that IRS Agents Vernon and Hines also informed Idaho Department of Labor employees Paula Ewald and Bob Harris at their local Grangeville Idaho office in February 2000, that Hinkson was a “dangerous person.”
Q. [Speaking to Paula Ewald] All right. And do you remember what he [McDonald] chastised you for specifically?
A. For bringing – for being so alarmist and overreacting about the danger of WaterOz.
Q. Well, wasn’t that exactly what Jerry Morgan [Gerald Vernon] wanted you to do when he called you on the 17th of February and gave you that information?
A. Yeah. It was – he didn’t instruct me to do that; but, you know, he wanted to – I got the impression that he wanted to share information from agency to agency and work collaboratively so that he could – he came right out and said, We’re going to raid this place.
Q. That’s not in your memo.
A. That’s not in my memo, but I remember it was in the conversation.
Q. And that was the conversation – to be clear, that was the conversation of February 17th?
A. Yeah.
Q. Okay
A. And—
Q. Did he say why he was going to raid this place?
A. Well, because the guy was out of compliance and they were dangerous people.

David is depressed because IRS agents were also spreading speculative and vicious rumors that he was a “dangerous person” and that he was involved with a group known as the “Mountain Man Militia.” That Mr. Hinkson “put crates of guns into the WaterOz warehouse,” was another vicious rumor perpetuated by Paula Ewald. The report by Paula Ewald made was on the same day when IRS agents spoke to her. They warned her that Hinkson was a “dangerous person” -- which she immediately reported to her supervisor, Shawn McDonald. Ms. Ewald attributed the origin of the rumor to a friend, Dana Lohrey, director of the Department of Pharmacy Student Services at Washington State University. The rumor was completely dispelled by Dr. Lohrey who, when asked, testified that the “crates of guns” were really only four guys from the NRA (National Rifle Association).

“No, sir. I can’t figure out where that is coming from. I never saw anything like that.” What Mr. Lohrey did see were four nicely dressed gentlemen whom he believed were from the NRA, who had come to the WaterOz facility for a radio show.

The government has been actively perpetuating other vicious rumors based on the alleged report (dated February 16, 2000) of Phil Kofahl. He claimed that Hinkson was affiliated with the “Mountain Man Militia.” It should be noted that this rumor mill converted four nicely dressed gentlemen from the NRA visiting the WaterOz facility for a legitimate business purpose into “crates of guns” being unloaded. Dana Lohrey admittedly is the source of information that started the rumor. Paula Ewald’s best recollection was that “one of them was showing a rifle to the others.”

Even though Ewald stated that she could not recall anything that she might have said to her supervisor, Shawn McDonald, that would have created the impression that crates of guns were put into the WaterOz warehouse, that was what Shawn McDonald reported (in his IDOL February 16, 2000, memorandum). It is evident to David that a number of vicious rumors about him were started, perpetuated and embellished by seemingly responsible government employees.

Significantly, the vicious rumors about Mr. Hinkson being a “dangerous person’ and a “coward” were being circulated by IRS Revenue Agent Jerry Morgan (alias Gerald Vernon). Shawn McDonald said, “Yesterday I received a phone call from Jerry Morgan (IRS Revenue Agent). He verified Bob [Harris] and Paula [Ewald] concerns about the dangerous nature of dealing with Mr. Hinkson and his ‘followers.’ He mentioned a particularly dangerous companion of Hinkson – a man named Chad Ericson. He also listed weapons located at WaterOz that were composed of automatic and semiautomatic rifles used by military and law enforcement. He described Hinkson as a coward that is surrounded by devoted followers that are prepared to defend Hinkson with violent force.”

McDonald had a difficult time believing these rumors because he had received a different impression after having visited the WaterOz factory. He had made a significant effort to accurately report what he was required to put into his memo. He wanted to be certain that he was not merely spreading rumors and not just repeating statements of others. He vouched for Agent Morgan’s credibility, as follows:
“Jerry Morgan is a retired Los Angeles County Sheriff. I believe he is qualified to describe who is a dangerous individual.” Of course, the question arises as to why is was that Agent Morgan felt the need to vouch for himself by advising McDonald that he was a former Sheriff. It seems obvious that McDonald was concerned about the trustworthiness of this report and was attempting to measure its validity against a known standard -- he had been to the WaterOz facility and saw no cause for alarm. However, in his quest to understand how his departmental supervisor wanted him to proceed, McDonald was seeking the most complete information possible.
Agent Vernon said that it was the tax reward application sent to the IRS by Phil Kofahl, (a disgruntled former WaterOz employee) about one year earlier (dated December 26, 1998) that started the IRS inquires about Mr. Hinkson. However, because Mr. Kofahl died of a heart attack on May 27, 2003, he is unavailable to testify as a witness in this case to explain his vindictive reasons for making false reports to the IRS.

While they were living in a trailer in a remote mining area near Las Vegas (in substandard living conditions), Mr. Hinkson hired Phil Kofahl to be the security guard over his adjacent mine and mill property. David provided the Kofahls with an income at a time when he had very little income himself. He then allowed them to move their trailer onto his property near Las Vegas, Nevada, to live rent-free. Stacey Kofahl learned how to assemble ozone-gas producing air purifiers for which she was paid $25 per unit, and with Phil’s help was able to assemble as many as 80 units per week. She made upwards of $8,000 per month. However, his wife, in a recent statement to investigators, stated that this was just Phil’s way of getting even with Hinkson for firing him .

1It was Agent Vernon that described Hinkson as a “coward” (as reported in the McDonald memo). Vernon repeated the allegation that David was “cowardly” and attributing the source to Kofahl. Kofahl also had started the vicious rumor that Mr. Hinkson was “closely affiliated with the Militia of Montana and the Minutemen Militia.” He had also asserted that “Many of his [Hinkson’s] … employees are also members of the Militia movement.” Former WaterOz employee Steve Bernard explains that this allegation by Mr. Kofahl completely misconstrued a statement made by WaterOz customer Bill Rich (a member of the Oregon State Militia -- a constitutionally-mandated public service organization), who caught and exposed Phil Kofahl for stealing WaterOz property. David Hinkson is depressed that the government has developed its case based on these false and vicious rumors and failed to investigate these accusations just as it failed to investigate the Mariana Raff allegations.

Of greater concern is the fact that the government failed to exercise any control over Agents Vernon and Hines. They have used their authority and credibility to develop a “false persona”’ of David. After March, 2000, Agents Vernon and Hines pursued Hinkson using what David contends were improperly-drawn administrative summonses to obtain his financial records. David is depressed that those institutions released his records without giving him a proper opportunity to object. As shown below, attorney Dennis Albers, who represented disgruntled former WaterOz employee Annette Hasalone, was one of those who turned over records upon the presentation of such a summons without giving David an opportunity to make his objection, as required by law.

In approximately July 2001 the government commenced the taking of testimony before the grand jury in Coeur d’ Alene, Idaho, regarding its investigation of Mr. Hinkson. But no indictment was forthcoming. In October 2001 Mr. Kofahl was encouraged to testify before the grand jury that . Hinkson’s products had killed someone. Although thoroughly investigated by the Food and Drug Administration (FDA), the record reflects that no proof ever existed that Mr. Hinkson’s WaterOz products had caused injury or harm to anyone -- especially a death. The record also reflects that the prosecutor encouraged this egregious testimony by Mr. Kofahl, knowing from his testimony that he was a disgruntled former WaterOz employee who was attempting to settle an old score. Kofahl made a failed attempt to take over Hinkson’s business, and was terminated in 1998 for theft.

The government actively promoted the spreading of vicious rumors. To “get even” with Hinkson for firing him, the government allowed Kofahl the use the grand jury as a forum . Hinkson feels it was with reckless disregard for the truth that the government permitted Mr. Kofahl to provide such false “testimony.” This was testimony they permitted included rumors of a death being caused by WaterOz products, rumors that Hinkson was enslaving people and other ridiculous rumors and testimony by Kofahl, all without proper government investigation or foundation. Such testimony only served to enflame the passions of the grand jurors. Kofahls vicious attacks on him have been the source of extreme Depression for David particularly after he was so kind to them.

Following a similar pattern, disgruntled former WaterOz employee Annette Hasalone (the one David had help through her illness) was allowed to testify before the grand jury stating that David Hinkson caused the death of radio talk-show host Art Bell’s son. Obviously this was a complete fabrication (Art Bell’s son is very much alive). Grangeville attorney Dennis Albers, who was representing Hasalone, handled a suit against Mr. Hinkson in the Idaho County District Court in 1999 and 2000. She was seeking 20% interest in WaterOz or $600,000.00. The jury did not award her a share of WaterOz but did award $95,000.00 for back wages (which Mr. Hinkson was unable to prove even though she had been paid, because the payroll records “disappeared” from the WaterOz factory.) The evidence clearly showed that Ms. Hasalone had no other means of support at the time nor did she have the means to pay for her living expenses. All her stream of income came from WaterOz.

An affidavit of Kevin Hagen, of March 27, 2003, shows Hasalone arranged with Bobbie Eve, mother-in-law of Annette Hasalone and the office manager of WaterOz, to steal Hasalone’s payroll records and put them in a safe place. It has been extremely depressing to David that he was sued by Hasalone after he saved her life (according to her own story, WaterOz products cured a fatal lung disorder and employed her; she worked for him for approximately a year. Although he never personally hired her, he later learned that she was a fugitive from justice. However by participating with her new attorney, Dennis Albers, in suing David, she escaped punishment. David paid her full wages as agreed, but all payroll records disappeared. Mr. Hagen did not come forward for almost two and a half years after the judgment for $95,000 was entered against Mr. Hinkson. Yes, It is very depressing for David to know that his government has applied the vicious rumors started by Hasalone and used them as a pretext to commence a relentless investigation filled with outrageous conduct and vindictive prosecution against him.

Annette Hasalone actively recruited Steve Bernard, according to his testimony, to join her quest to “bring Dave down.” She wanted to get even with him for wrongs she perceived had been done to her. David is depressed that the record shows that the bitter Hasalone reported him for a variety of false violations to various governmental agencies including the EPA, Idaho Health Department and the Idaho Attorney General. All of these, after investigation, have conceded that there was no basis for the claims she made against him.
Ms. Hasalone was actually encouraged by the government to testify before the grand jury on August 21, 2001, saying that Hinkson was responsible for the death of the son of late-night radio talk show host Art Bell. An Exhibit by Hasalone submitted to the Grand Jury was filed under seal with the Clerk of the Court even though no such evidence, complaint or report ever appeared to support that the claim exists. In fact, reports indicate that Art Bell’s son, is alive today and just collected a six-figure settlement from the Pahrump Nevada School District in March 2004. It is depressing to David that Hasalone was encouraged by the government to provide the testimony regarding the death of Art Bell IV having been caused by David, which was highly prejudicial, merely to inflame the passions of grand jury members against him, in order that the government might obtain an indictment. Again David feels it was reckless disregard for the truth to have permitted Hasalone to provide such “testimony” that Mr. Hinkson was responsible for the death of a child, which was simply vicious rumoring without investigation or foundation.

The indictment in the Tax Case of July 17, 2002, was placed under seal for four months creating the inference that the counts of alleged FDA violations were added to the Tax Case indictment by the government for strategic reasons. They did it to obtain a search warrant to search David’s home and factory. The warrant was executed by a “SWAT-team” in a raid of his property on November 21, 2002 (according to testimony of Agent Long on December 7, 2004).

The FDA Counts in the indictment were predicated on a story that his products put the public health and safety at risk (suggesting that urgent and immediate action was needed to reduce the risk of injury to the public). However, sealing the indictment for four months shows that this was just another government deception. There was no true health risk associated with David’s products; while the real purpose of the indictment was to obtain the search warrant merely as a pretext. The IRS merely wanted to “piggy back” on the raid and collect information which otherwise was not available to it.

Elven Joe Swisher, the alchemist, was responsible for keeping the WaterOz products in “spec.” He testified before the grand jury that the products were in compliance with FDA labeling requirements (in 2001). Also he testified that the results of his analytical testing of WaterOz products was done on a concurrent basis. The testing reflected correct PPM (parts per million) content of the products as per labeling. In spite of the fact the government knew that Hinkson had hired an independent testing company (Swisher) to verify labeling compliance, and in spite of the fact that the FDA, contrary to law, did not send warning letters notifying WaterOz that their products were not in compliance, the government indicted David. They charges him criminally for selling adulterated drugs due to a reduced PPM mineral content. The FDA and the government knew that he had made every reasonable effort to be in compliance. Yet contrary to FDA practice, a prosecution was commenced rather than warning letters being sent.

During the four months that the indictment was sealed (July 17, 2002, to November 18, 2002) the government breached its own indictment secrecy requirements. The FDA disclosed to Mr. Hinkson’s primary competitor, ENIVA Corporation [a competitor of WaterOz] , that an indictment had been issued against Mr. Hinkson. On October 19, 2002, (one month before the secrecy order was lifted on the Tax Case indictment) ENIVA associate Art Morris approached Hinkson at a health conference in Lansing Michigan, and according to an eye witness, stated: “Mr. Morris began verbally attacking Hinkson in a loud voice, shaking the bag in his hand, gesturing toward David with the bag that appeared to have WaterOz product in it, interrupting him, and taking over the conversation by shouting: ‘Your products are contaminated. You can’t prove the purity or PPM content of your water. You’ve been indicted. You’re gonna be arrested and you’re goin’ to jail.’”

This ENIVA representative could not have known of the indictment a month before it was unsealed -- unless the government had released that information. Former disgruntled WaterOz employee Annette Hasalone (in 2002) worked for ENIVA. The effect of the release of the information to ENIVA by the government was that ENIVA obtained an unfair competitive advantage over WaterOz. They took the opportunity to plagiarize verbatim WaterOz marketing materials. They attributed to a doctor , who died the next day, a cassette tape which WaterOz had made that was based on a lecture given by Mr. Hinkson entitled “Don’t Mortgage Your Life for Your Health.” They used that lecture to promote ENIVA products under the new name of “Who Put the Chalk in Your Cheerios.” That tape resulted in a dramatic increase in ENIVA sales to $1 million per month, as David sat in jail as his sales declined. In addition, Mr. Hinkson was selectively prosecuted for FDA labeling crimes while ENIVA, who used all of Mr. Hinkson’s product information and descriptions -- but unlike Hinkson -- was not prosecuted.

The FDA used its power to assist one business, ENIVA, to the disadvantage of WaterOz which is a form of outrageous governmental conduct and vindictive prosecution. Hinkson is also depressed that the FDA used its police power to criminally prosecute WaterOz for conduct the FDA allowed another company (ENIVA) to perform with impunity. Clearly, if any WaterOz product had been dangerous to the public, the FDA would not have sealed the indictment on July 17, 2002, but would have immediately served it. They would have removed the products from the market. David recognizes that not doing so is an admission that there was no good faith basis for sealing the indictment in the Tax Case.

Once the indictment was released (on November 18, 2002) the government commenced its raid (on November 21, 2002) where individuals from several government agencies hid behind face shields (eye protection), toted machine guns and broke down ten doors with battering rams in Mr. David’s home and factory -- did so with impunity -- in order for the IRS to collect additional financial records from David. It has continued to be a source of great Depression to David that the IRS then used the newly-collected financial records to contact his creditors and terminate his merchant bank accounts and credit lines. They endeavored to totally shut down his business in November 2002. While the IRS succeeded in terminating the WaterOz credit lines temporarily, David exerted a massive effort to obtain other lines of credit and to restart his business after the raid.

On November 21, 2002, the government chose to execute a pre-dawn raid of David’s home and factory. They needlessly damaged his property when they could have picked him up off the street any day of the week, or they could have invited him to the Sheriff’s office for a “pretext or ruse-type arrest” [as they later did]. Agent Long preferred this approach in spite of the fact that David was available, had regular contact with his community, interacted daily with his factory workers and made frequent trips to the Town of Grangeville (12 miles away). David visited his children (who live with their mother) and made regular trips to the grocery store, bank and other establishments for the purpose of obtaining the necessities of life. Long and his accomplices had four months (November 21, 2002, to April 4, 2003 -- before David was jailed on pretrial release) to pick him up at will. Continuous probing by representatives of the government based on the vicious rumors were unwarranted. Pretrial Services Officer Gaylor on several occasions stated to David, “We have information that you have machine guns,” or “where are you hiding the machine guns?” David knew that the agencies that raided his factory had searched every inch, nook and cranny yet found no contraband of any kind (including machine guns or sniper rifles).
At this point I’ll interrupt Mr. Hoyt’s “Motion To Dismiss for Prosecutorial Misconduct, Outrageous Governmental Conduct and Vindictive Prosecution.” David reminded me that Christopher “Chris” Jon Paitreyot (alias Carl Waterman), former employee, brought to the WaterOz factory a large amount of controlled drugs. He claimed they were given to him by a retiring veterinarian just a couple of weeks before the Raid on David’s home & factory. Fortuitously, David instructed his employees to remove and destroy all the drugs. However, Chris Paitreyot disappeared without notification a few days before the “Raid.” Did the government have anything to do with this? A possible setup?

Then Assistant U.S. Attorney Michael Sullivan sent to Mr. Hoyt a letter saying that an inmate, Chad Croner, was offered a deal on his sentence if he’d testify that David admitted to him he had made offers “to hire someone to murder any federal official or employee . . . .” He even added that threats were made against Judge Tallman. Apparently this was yet another attempt [which we think will fail miserably].

J.C. Harding and Anne L. Bates were sent as informants to David’s residence during said four-month period after the raid. David had hired Bates because of her pathetic story of how she was penniless and out of work. Their specific task was to gather information and to entrap David. Or in the event he was not interested in their “entrapment bait,” their job was to falsify “murder-for-hire” claims against him. AUSA Nancy Olson apparently lied when David’s Attorneys asked for Brady/Giglio materials in the Tax Case. She responded that “Mr. Harding did not receive compensation from the government.” However, in July, 2004, AUSA [Assistant United States Attorney] Sullivan disclosed that Harding had been paid over $1,000 by the government. Evidence shows that Bates downloaded information from David’s computer to pass along to the government. The testimony of Robert Blenkinsop [of the FDA] was revealing. In the Tax Case he testified that he obtained David’s personal emails. The personal emails were available only from David’s personal computer -- at his home -- to which Bates had access but which were not available through the factory computers.

The government argued in its pretrial motions (in both of its detention orders) that David attempted to hire anyone or that he is a “danger to the community.” They assert that the March 27, 2003, body-wire recording by informant, J.C. Harding, supports their case. The truth is that the wire disproves their theory. In fact, all the statements made in the recorded conversation by David demonstrate that he was relying strictly on the legal system for redress of his grievances. When he was repeatedly asked during the recorded conversation if he wanted to kill federal officials, he responded by saying, ‘I’m going to sue them.” Or he said, “I’m just suing them.” He declared that he would “beat them at their own system.” Nowhere did he state that he wanted to hire anyone to murder them. Nor has any person who has personally talked with David ever testified or provided a sworn statement to the Court against him (including informants Harding, Raff and Bates). He has been held in jail for 20 months on flimsy hearsay (not evidence). What is being unraveled has been shown to be nothing but lies.

Agent Long admitted perjury. He admitted that he “erroneously” testified when presented with a tape recording of David’s request for an attorney. David, at the time of his arrest on April 4, 2003, by FBI Agent William Long, was denied his civil right to have his attorney present during interrogation (to avoid self incrimination). Long testified falsely at the April 9, 2003, detention hearing saying that “David did not ask for an attorney.” Fortunately, David had a tape recorder hanging around his neck (recording his request for an attorney). Long flat out lied at the hearing.

All having received some form of compensation from the government (J.C. Harding, Anne Bates and Mariana Raff), they provided merely hearsay statements to FBI agents. Although not under oath, each was willing to say that David had solicited them (or solicited people known to them) to murder federal officials and others. Magistrate Williams ruled that there was no condition or set of conditions that would ensure the safety of the community or prevent David from fleeing (based on the hearsay statements attributed to Mariana Raff which have now been proven to be totally false).

The government has now, for the first time (a year and a half after he was sent to jail) confirmed the falsity of the Mariana “Raff Story.” The government had been pretending that while in Mexico on business, Mr. Hinkson attempted to hire Raff’s brothers to murder the judge, a prosecutor and an IRS agent. The “Raff Story” included the statement that the Brothers were experienced “hit-men who had done this type of work before (murder of U.S. federal officials).” The Raff story, along with the false allegation that David was a flight risk, are the key pieces of information that put him in jail [so far for 21 months].

Even thought the March 27, 2003, recording of the Harding-Hinkson conversation was exculpatory (showing that David had not made any threats or offers to kill anyone), the Raff accusations provided the government with the needed inference that Mr. Hinkson had a predisposition to hire someone to murder said federal officials. This was needed to overcome what the government anticipated to be their entrapment defense.

As evident on the body-wire, David never made any statements about killing anyone. He only allowed the discussion of the subject because informant Harding brought it up. He did not know that it was simply a part of the entrapment efforts (Harding had repeatedly asked him if he wanted to kill the federal officials). The government knew that the Raff Story lacked credibility. In March 2004, Lonnie Birmingham, appeared for his grand jury testimony and told government attorneys that Mr. David never discussed with the brothers, while in Mexico, homicide and/or murder-for-hire of anyone, including U.S. federal officials. Later, Birmingham was prohibited by the government from testifying about those facts. But Birmingham had already signed an Affidavit for David’s attorney, Wesley Hoyt, regarding that phone call.

Although the Birmingham information was compelling enough to cause the government to release Ms. Raff as a prosecutorial witness in March 2004, it did not compel them to investigate the brothers as potential international terrorists for six more months. In fact, no investigation about the brothers was done until September 15, 2004 (one and one-half years after the FBI first came into possession of the information that the brothers were potential international terrorists). Had the FBI believed that the “Raff Story” was true, it would have or should have immediately investigated the brothers. They would have taken the necessary steps to protect federal officials from the threat of terrorists (who had done this type of work before). David feels that the failure to investigate the brothers can only mean that the FBI did not believe the Raff Story in the first place. If Agent Long chose not to believe the Raff Story for purposes of investigating a potential international terrorist threat, then David feels that Agent Long should not have used other information from that report, as if it was true, in a detention hearing that has cost him his freedom for the last twenty-one months. Again, David can’t understand why he’s been held since there has been no evidence presented to the Court that he is a danger to the community or that he is a flight risk; and the only other information against him comes from an admitted perjurer, Agent Long.

David becomes more depressed each day. He knows that when the government first discovered that the information which formed the basis of his (now 21-month) incarceration was false, they should have notified the grand jury. Instead, the Court and defense counsel, as it is obligated to do, compounded the harm. They obtained an indictment and then a superseding indictment using the same false information. The prosecutor failed to give notifications, as required by law. The Raff Story has now been deemed to be false. There is irrefutable evidence that FBI Agent Long knew the Raff Story was not true (or that Long could not be certain the Raff story was true) when he first testified about it on April 9, 2003. Had Agent Long done his job and actually conducted an investigation he would have found that there was no truth to any of these allegations. He would have been led to the inescapable conclusion that David was not guilty of solicitation of murder.

Without the Raff Story showing a predisposition under the entrapment doctrine and considering that the March 27, 2002, body-wire recording by informant [Harding] is purely exculpatory, the government did not have a case against David without the Raff Story. Now Ms. Raff, the pivotal witness, that put him in jail has been released [and we suspect deported].

The government did not perform an adequate background check on Ms. Raff. She was known at the time to be a disgruntled former WaterOz employee and known to be a law breaker (who has been continually involved in felony criminal activity). Even though she continued to commit additional crimes all cases against her have been regularly dismissed -- all as part of the federal government’s “leniency for informants program.”

David is also depressed about the fact that the government proffered the entire transcript of the detention hearing of April 9, 2003, (including the perjurious Raff Story) as an exhibit into evidence at the detention hearing of July 7, 2004. They asked the Court to consider the same as if it presented proof that David was a danger to the community and a flight risk merely to keep him in custody. The government knew this was a fraud because of the Birmingham statements at the March, 2004, grand jury hearing. They knew the Grand Jury did not know the truth of the Raff Story.

David Hinkson is a trained paralegal. He is capable of conducting legal research even while in jail for the past 21 months. However he has been prohibited from using the jail law library or the Internet for research or his own laptop computer for this purpose. On a proper showing of grand jury abuse, the Court should attach a “presumption of regularity.” Research performed on Hinkson’s behalf indicates that this is expected. However this case is anything but regular. Other cases (U.S. v Claiborne & Ross v. Oklahoma) recognized that defendants, in the type of situation facing Hinkson, may overcome the presumption of regularity that attaches to grand jury proceedings -- and even obtain dismissal of indictments returned against him.

David is aware that he has established a textbook case of grand jury abuse. The government has based its case on prosecution that contained perjured testimony. They knew that after the grand jury indicated, it was not inclined to indict on a second occasion. The grand jury refused to indict David in August 2001 and again in early April 2002. The records were sealed. The fact that prosecutor, Nancy Cook, was a named defendant in a $50 million lawsuit by Mr. Hinkson filed April 16, 2002, after the grand jury adjourned without indicting him, demonstrates that the criminal indictment of July 17, 2002, was retaliatory. It shows intent to vindictively prosecute David. It is extremely depressing to him that AUSA Cook reconvened the adjourned grand jury for one day in July 17, 2002, to extract an indictment against David. He believes that such action should have been prohibited, as Cook had been served as a party defendant in a lawsuit over her alleged misconduct related to the grand jury proceedings.

Mr. David is aware that by using perjured testimony, a prosecutor acts arbitrarily and capriciously and violates due process; such conduct also must be condemned by the exercise of the courts' supervisory powers. Indeed, a decision of the Ninth Circuit requires a “…prosecutor who discovers perjury by a grand jury witness after indictment [is required] to inform the defendant, the trial court and the grand jury of the perjury so that the grand jury may reconsider its decision to indict (United States v. Basurto). The prosecutor has failed timely to do so here. The December 2004 notice to David was insufficient. The government had a duty to give notice to David of Raff’s perjury (the deadline for which was November 8, 2004). That failure precluded its inclusion in pretrial motions.

To justify dismissal of the indictment, perjury before the grand jury must be material (United States v. Claiborne). If sufficient (now-perjuries) testimony exists to support the indictment, the courts will not dismiss the indictment (due to the presence of perjured testimony before the grand jury) on the assumption that the grand jury would have returned the indictment without the perjurious evidence.

It further depresses David Hinkson that the government has refused (and the Trial Court will not require the production) to produce grand jury materials in discovery. David believes that (as happened in the detention hearings) the evidence presented to the grand jury consisted of testimony by FBI Agent Long merely recounting hearsay statements. Statements made by informants (Harding, Bates and/or Mariana
 

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