Case o' The Week: Ninth Adopts New Abuse of Discretion Standard, Hinkson

One reporter described the Ninth Circuit's recent en banc decision in Hinkson thus: "Conservatives on the 9th U.S. Circuit Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho." Dan Levine, The Recorder, Law.com, article available here.

We will, however, refrain from speculating about any political overtones in the case, and will instead focus on the content of the new en banc decision that (unexpectedly and dramatically) changes a well-established standard of review in the Ninth Circuit. United States v. Hinkson, __ F.3d __, No. 05-30303, 2009 WL 3654003 (9th Cir. Nov. 5, 2009) (decision available here).

Players: Judge Tallman, sitting as a district court judge.

En banc decision affirming Judge Tallman by Judge Bea, joined by Chief Judge Kozinski, and Judges O’Scannlain, Kleinfeld, Callahan, Ikuta, and N. Smith.

Dissent by Judge W. Fletcher, joined by Judges Pregerson (who has a real Purple Heart), Paez, and Wardlaw.

Facts: Hinkson, a mentally-unstable Idaho businessman charged with tax evasion, spoke to several people about hiring them to kill federal agents, prosecutors, a judge, and their families. Id. at *1. He was charged with eleven counts of soliciting murder; Ninth Circuit Judge Richard Tallman sat as the district court judge at trial. Id. at *3. Hinkson beat or hung most counts, but was convicted of trying to hire “Swisher” – his former employee, now government witness – to murder. Id. at *6.

At trial Swisher testified he had served in the Marine Corps in Korea, had killed “too many” men, and had received a Purple Heart (he even wore a Purple Heart “medal” while testifying). Id. at *4. These were all lies – indeed, Swisher was (later) federally convicted for these lies. Id. at *7 n. 16. These lies were not clearly known to the defense during the trial, though documents arose that suggested Swisher was perjuring himself. Id. at *7. Judge Tallman prohibited the use of these documents to cross Swisher during the trial. Despite definitive proof that was finally delivered soon after the trial that Swisher had repeatedly lied, Judge Tallman denied the motion for new trial. Id. at *6.

Hinkson was sentenced to thirty-three years for these counts.

On appeal, a three-judge panel lead by Judge W. Fletcher reversed Judge Tallman’s denial of the Rule 33 motion in a lengthy decision. The case went en banc.

Issue(s): “[W]e consider the familiar ‘abuse of discretion’ standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.” Id. at *1.

Held: “[W]e hold that when we review for abuse of discretion a district court’s denial of a motion for a new trial, we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. In other words, our abuse of discretion test means that we do not automatically affirm a district court’s factual finding if we decide it is ‘permissible,’ and we do not automatically reverse a district court’s factual finding if we decide a ‘mistake has been committed.’ Rather, in either case, we will affirm a district court’s factual finding unless that finding is illogical, implausible, or without support in inferences that may be drawn from the record.” Id. at *12. “Applying this test to the case at bar, we conclude the district court did not abuse its discretion in denying Hinkson’s motion for a new trial based on “newly discovered” evidence . . . .” Id.

Of Note: Judge Fletcher’s 37-page dissent reveals the palpable injustice of this case. He persuasively explains how the government had in its possession documents that undermined the credibility of the central government witness, how the government didn’t fully investigate or timely disclose these documents to the defense, how the government’s key witness affirmatively lied about his military service and honors, and exactly why the revelation of these lies would have resulted in an acquittal in a new trial.

This is, to put it charitably, a disappointing en banc decision.

How to Use: The Ninth now stands alone in manufacturing a definition for “abuse of discretion” – arguably, in the face of conflicting Supreme Court precedent. And this new rule will make reversing a district court exceedingly difficult under “abuse of discretion” review. Anticipate district courts feeling their oats on evidentiary rulings, decisions on experts, and new trial motions – Hinkson just wrote them a blank check.

For Further Reading: Ironically, (conservative) Judge Tallman owes his Clinton appointment to Judge W. Fletcher: part of a deal brokered for the confirmation of the latter. See article here.


Image of the Hon. W. Fletcher from http://www.virginialawreview.org/inbrief/2007/03/22/media/fletcher.jpg . Image of the Hon. Richard Tallman from http://www.uscourts.gov/ttb/2007-09/images/newLeadership/Tallman.jpg . Image of the (real) Purple Heart from http://www.lib.unc.edu/mss/exhibits/patriotism/Images/PurpleHeart.jpg