From the February 2005 Idaho Observer:

Bird on a wire: The persecution of Dave Hinkson

In the absence of evidence and without establishing the elements of solicitation, the U.S. Department of Justice successfully convicted Water Oz CEO and anti-bad government activist Dave Hinkson of enough criminal charges to keep him behind bars for a long time. Hinkson spent over $1 million for his defense which was primarily eaten up by greedy double agents and incompetants. There were several effective and dedicated people who tried to help, ourselves included, but we were cut out of the loop by the double agents and incompetants. By the time Hinkson, who has been locked up in Ada County Jail in Boise since April 9, 2003, was declared guilty of solicitation to murder three federal agents, he probably believed all his friends had abandoned him. Hopefully the double agents and incompetants will soon stop sucking Hinkson for money and will go away to spend what they have already sucked on themselves. When that day arrives, he may seek us out so we can put a real plan together to help get him out of the mess he’s in. Dave, if you are able to receive this note, just understand that the betrayal you suffered was so close you just couldn’t bring it into focus.

by The Idaho Observer

Dave Hinkson’s story is not peculiar, strange or difficult to understand. It’s the old story of David and Goliath, yet in Dave’s case, he did not have the wherewithal to fell the giant in a single blow. So he kept trying to kill him (in court) but the giant got him first. In these days of governmental restrictions, you only get one chance, and that occurs only if you are fortunate. If you miss, you’d better hide.

Where exactly did Hinkson go wrong? Was it his public outcry against governmental policies that cause harm to people? Was it his belief in our constitutional right to freedom of speech? Was it because his products threaten a powerful governmental partner (pharmaceutical companies)?

It started with a rumor

This was the first strike weapon in the government’s arsenal against Hinkson. The government found people whose best interest was to assist the government in their vendetta against Hinkson, and these "witnesses" in turn testified against Hinkson.

Hinkson was accused through the use of rumors of being the leader of a militia group. It was said that Hinkson had stockpiles of automatic weapons of all types in his "compound." Hinkson was said to be very dangerous. These rumors were started in February, 2002 by IRS Agent Steve Hines and Agent Vernon, four months before Hines was officially assigned to investigate Hinkson and WaterOz in July, 2002.

Bogus hit claim

The crime Hinkson was convicted of was solicitation to commit murder [or murder-for-hire]. The grand jury indicted Hinkson based upon the testimony of numerous witnesses, one of whom was Marianna Raff. Raff’s story was later discovered by the government to be a total fabrication. Her motive for conjuring up this story was to avoid repaying Hinkson what she owed him [about $100,000]. By claiming that Hinkson had solicited her two brothers to murder federal officials, Raff knew Hinkson would be incarcerated and that her family would not be required to repay the $100,000 as long as Hinkson was in jail. Hinkson has been in jail since April, 2003. Raff has since taken unlawful flight from the U.S. to avoid prosecution and now lives in Mexico.

On September 15, 2004, seventeen months after Mariana Raff advised the FBI that her brothers in Mexico were solicited by Hinkson to kill certain federal officials, FBI Agent William Long telephoned Juan Carlos Martinez-Piedras and Gustavo Martinez-Piedras (Raff’s brothers) in Puebla, Mexico. They stated that they had been contacted by Hinkson regarding the purchase of a parcel of real property in connection with Hinkson’s WaterOz business. When asked, both Juan Carlos and Gustavo denied that Hinkson tried to hire them to kill anyone, including federal officials in Idaho. They further stated they never discussed homicide at any time with Hinkson.

It is a rather sad commentary on our judicial system that gossip [hearsay] can be considered sufficient evidence to secure an indictment.

Raff’s story was proven to be untrue, yet the indictment stood and the trial commenced.

The only real "evidence" proffered at trial was the testimony of witnesses, who also had large monetary incentives to see Hinkson behind bars and remain there forever.

Nine of the counts against Dave listed in the indictment were for allegedly soliciting the murders of federal officials (18 U.S.C. § 373); two were for purportedly threatening to murder the family members ["children"] of federal officials (18 U.S.C § 115).

No elements of solicitation

Let’s look at the law for a minute.

The evidence for a conviction should be stronger than mere gossip. According to the law, there must be corroborating circumstances to show that such solicitation occurred. Generally, these circumstances are circumstantial evidence of some kind, such as a threatening letter or telephone call, a map drawn for the hit man to use while committing the murder, cash paid up front to the hit man, hand-written or typed instructions regarding the contract-for-hire details usually containing the defendant’s fingerprints, a getaway vehicle, taped conversations about disposal of bodies, taped conversations about the solicitation itself and photographs of the intended victims.

In the Hinkson case, there was nothing other than the testimony of two people Hinkson allegedly solicited along with another person with whom Hinkson supposedly shared his desire to kill Cook’s children.

If we go back to basics, it’s obvious that Hinkson did not commit a crime or there would be dead bodies on the landscape of Idaho. The government alleged that Hinkson solicited at least two people to commit murder, and then Hinkson did nothing in furtherance of that desire.

Hinkson didn’t produce funds for expenses, discuss the getaway, negotiate the fee, give instructions regarding whether the murders should appear to be burglaries, suicides or random killings. Hinkson did not provide photos of the intended victims. He did not provide addresses of their homes or offices. Hinkson did not discuss where the murders were to take place, nor did he provide maps or drawings. And Hinkson did not tell the people he allegedly solicited where to meet him to collect their money afterwards. And there was no evidence of a transaction, nor was there evidence of a contract. After all, there must be some kind of agreement reached between parties.

The key to determining Hinkson’s guilt or innocence lay in what Hinkson did not do and should have. You cannot commit a criminal act against someone by omission.

The definition of a crime

The definition of a crime is that it must be shown that the accused committed some unlawful act or engaged in some prohibited course of conduct, together with willful intent. No person can lawfully be convicted of an offense where, although intending to commit a crime, he did nothing in furtherance of the execution of such intention; hence, one can be punished only for an offense which he has actually committed, not for an offense which he may commit sometime in the future. [Powell v. State of Tex., 392 U.S. 514, (1968)

Solicitation of murder is a specific intent crime. [Sheffield v. State, 847 S.W.2d 251 (Tex. App. Tyler 1992) "Specific intent" is a term used in criminal law to describe a state of mind which exists where circumstances indicate that an offender actively desired certain criminal consequences, or objectively desired a specific result to follow his act. [People v. Garland, 627 N.E.2d 377 (1st Dist. 1993).

For example, shouting "kill the umpire" at a ball game is not solicitation for murder, but rather protected 1st Amendment free speech.

A conviction for criminal solicitation of capital murder requires proof that the defendant, having the intent that a capital murder be committed, intentionally and knowingly requests and attempts to induce another to engage in specific conduct that would cause a capital murder, that is, intentionally or knowingly cause the death of another. In other words, a solicitation to commit murder occurs when the solicitor purposely seeks to have someone killed and tries to engage someone to do the killing. [Majid v. State, 713 S.W.2d 405].

A proper conviction of criminal solicitation may be based on the defendant’s statements and corroborative evidence, including circumstantial evidence showing the defendant’s seriousness.

The Supreme Court states that the burden is on the prosecution to include a demonstration of positional predisposition. State v. Canaday, 641 N.W.2d 13 (2002).

The Supreme Court requires the prosecution to prove that the individual charged was predisposed to commit the crime. [Matthews, 485 U.S. 58, 62-63, 108 S.Ct. 883, 886]

To convict on a charge of solicitation of murder, the state must prove that there was some point in time at which the defendant had induced another to commit murder, with the intent to cause the commission of a crime, and under circumstances that caused the defendant to believe that it was probable that the solicited crime would take place. State v. Rivers, 634 A.2d 1261 (Me. 1993).

Hinkson never induced another to commit the crime, plus there was no contract between the parties to do so and lastly, no money changed hands.

To support a conviction for solicitation of murder, the state must show that the defendant acted knowingly and with the specific intent that a capital murder or a felony of the first-degree be committed. [Sheffield v. State, 847 S.W.2d 251 (Tex. App. Tyler 1992)

The government never met the burden of proof required to convict Hinkson for solicitation of murder, but it convicted him anyway.

Hearsay conviction

Hinkson’s conviction is based upon the testimony of numerous "witnesses," including government agents and people who did not like Hinkson, owed Hinkson money, and wanted to see him in jail (the motive is revenge) or people involved in a conspiracy to steal WaterOz because its products have immense monetary potential. The outcome of this conspiracy appears to be bankruptcy and destruction of WaterOz by the IRS who claims that WaterOz owes $2 million in back taxes.

Defense witnesses who could have testified about the involvement of the prosecutor, the judge(s), and the witnesses and others in a governmental conspiracy against Hinkson escaped capture by the government by fleeing for their lives before their appearance at the trial.

The government’s crimes against Hinkson

Hinkson’s prosecution was not properly before the court. Numerous crimes were committed against Hinkson by his prosecutors; specifically:

1. Solicitation of suborned perjury. Deputy U.S. Prosecutor Nancy Cook’s solicitation of Raff to commit perjury before the grand jury that resulted in the indictment (no investigation of the Raff Story was conducted at that time to verify its veracity);

a. FBI Agent Long assisted in the solicitation of Raff, Harding, Swisher and Bates to commit perjury (and did not conduct an investigation until 17 months after Hinkson was arrested and jailed).

2. Subornation of perjury. Cook’s support of Raff’s perjury, Harding’s perjury, Swisher’s perjury and Bates’ perjury.

3. Presentation of known suborned perjury. Cook’s use of Raff’s known false testimony for the indictment. Cook’s use of the false testimony of J.C. Harding, Ann Bates and Swisher for the indictment. FBI Agent Long’s willful misrepresentations to the Magistrate regarding the content of the wire recording, knowing the Magistrate would rely on his testimony (All resulting in Hinkson’s arrest and incarceration).

4. Solicitation to commit theft. The government’s solicitation of Bates to steal personal material from Hinkson’s computer.

5. Receipt of stolen property. The government’s receipt of Hinkson’s stolen computer material obtained from Bates; specifically, trade secrets, promotional materials, Hinkson’s audio tape, etc.

6. Use of stolen property. The government’s use of Hinkson’s stolen computer material obtained from Bates as evidence to attack Hinkson.

7. Solicitation of other criminal acts. This occurred when the government, in furtherance of the criminal enterprise against Hinkson, a) sent FBI Agent Long and other government agents to intimidate and harass the inmates in Hinkson’s jail cell who had volunteered to testify on behalf of Hinkson in rebuttal to the government’s solicitation of perjured testimony from Chad Croner (a cellmate) regarding alleged threats by Hinkson against Judge Tallman. By "judicial sorcery" Chad Croner was released from jail immediately after giving his sworn testimony against Hinkson.

8. Conspiracy to violate Constitutionally secured rights of Hinkson. The government devised a scheme or artifice to defraud Hinkson of his property and his money, deprive him of his right to expect honest services under color of law and deprive him of his liberty when (a) they did not Mirandize Hinkson in April, 2003 (Hinkson had a pocket tape recorder going at the time – there was no Miranda Warning given) and (b) when the FBI did not allow Hinkson to speak with his attorney after he stated that he wanted his attorney present during questioning.

Specifically, Hinkson’s constitutional rights violated are: First Amendment right of free speech; Fourth Amendment right to be safe in his home (when the SWAT invaded) because of the defective search warrant based on a fraudulent indictment. Further, said search warrant did not say they could enter his house (it was specified for the business and they executed it before business hours), and lastly, the FDA allowed the IRS to piggyback on its search warrant [when they were not a party-in-interest] that violated Hinkson’s Sixth Amendment right to confront his accusers; also, his Fifth Amendment due process rights.

9. Falsification of documents and testimony [violating 18 USC §1001 (a)(1)]. Instead of using the best evidence (the wire transcript), FBI Agent Long testified before the Magistrate and willfully inserted statements he said were made by Hinkson when they were not; Long interjected his opinion or spin of Hinkson’s statements – constituting less than hearsay evidence. The body wire transcript contradicts Long’s testimony –catching FBI Agent Long in at least sixteen separate lies—each one a felony.

10. Operation of scheme and artifice to defraud Hinkson. Hinkson held a reasonable expectation that he has a tangible right to honest service [18 USC §1346].

11. Mail Fraud [violating 18 USC §1341]. Whenever the government used the U.S. Postal Service in furtherance of this scheme and artifice to defraud Hinkson (mailing to Hinkson’s attorney their documents, papers, transcripts, etc.)

12. Wire Fraud [18 USC §1343]. Whenever the government used the telephone or fax machine in furtherance of this scheme to defraud Hinkson (Faxing or calling Hinkson’s attorney, speaking via telephone to each other about the conspiracy; the use of email).

13. Exceeding the authority of a search warrant [18 USC §2234]. When SWAT entered Hinkson’s home without authority, because the search warrant said specifically not to enter the house, but only the factory. Also, the search warrant was issued to the FDA, so why was the IRS there when they were not a party-in-interest?

14. Malicious procurement of a search warrant [18 USC §2235]. The entire conspiracy is malicious against Hinkson, including the procurement of the IRS search warrant, when the government would not allow Idaho Department of Labor [IDOL} to bring Hinkson’s business into civil compliance, but instead sought to criminally pursue him.

15. Search without a warrant [18 USC §2236]. There was no warrant for Bates’ theft of Hinkson’s personal, private property (from his computer).

16. Misuse of governmental funds and property [18 USC §641]. Any use of governmental property in furtherance of this scheme or artifice to defraud Hinkson and deny him his Constitutional rights is misuse of said property.

17. Keeping silent. The participants of this criminal enterprise were governmental officials and they had a duty to speak out about criminal acts they knew had occurred by other governmental officials or had committed themselves [18 USC §4]. This is obstruction of justice and is Misprision of a Felony for each felony performed; including but not limited to, Mail Fraud, Wire Fraud, Obstruction of Justice, Suppression of Evidence, Perjury, Subornation of Perjury, Theft.

18. Committing Fraud on the Court. The entire criminal enterprise was perpetrated by officers of the court who gave false information to the grand jury so as to obtain an indictment. They did not release the certification of the first indictment; did not record the minutes of the grand jury [the first indictment]; did not make written record of the first indictment; presented and supported a known defective indictment to the court for prosecution; submitted false testimony (the grand jury transcript of suborned perjury) and false affidavits to the court; proffered known perjured testimony before tribunals and; perjured themselves on the witness stand. They also suppressed all exculpatory evidence.

19. Misuse of governmental positions of public trust. Public trust is secured by when government officials take an oath of office to support and uphold the U.S. Constitution and the laws of the United States). This trust was used to prey upon those they are legally, constitutionally and contractually bound to protect from those acts enumerated above [violating the Constitution for the United States of America]. The government, with malice aforethought and willful intent, pursued Hinkson in order to secure an indictment against him using suborned perjured testimony from numerous solicited witnesses who had personal vendettas against Hinkson, forming a criminal enterprise with the government in order to carry out their conspiracy to defraud and deprive Hinkson of his property, his Constitutional rights and his liberty.

20. Perjury of their oaths of office. At any time when a government official or agent willfully misrepresents facts or manufactures inculpatory evidence with an intent to cause a citizen of the United States to lose his property, his freedom and cause him a harm, detriment or injury, this is perjury of their oath of office to protect. Approximately 7 days after the grand jury had been disbanded, Prosecutor Nancy Cook prepared and signed an indictment allegedly forging the foreman’s signature and omitting the required 13 grand jury signatures so as to issue a True Bill of Indictment. Hinkson’s indictment had one signature.

Bird on a wire

If you’re going to live like a bird on a wire, you must know of many wires on which to roost, so when the hunter approaches to draw a bead on you, he won’t be able to find you.

Note: Hinkson’s sentencing is scheduled for April 25, 2005. He could receive up to eight years for each of three counts, plus time for his conviction for income tax-related charges last year. He has many appealable issues—and may have had more had his defense counsel been more capable of defending the fact that the government established no elements of a solicitation and had, itself, committed a multiplicity of crimes against Hinkson in its zealous desire to punish him.