United States v. Hinkson

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30303
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00127-RCT
DAVID ROLAND HINKSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
Richard C. Tallman, Circuit Judge, Presiding

Argued and Submitted
December 16, 2008—Pasadena, California

Filed November 5, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
Kim McLane Wardlaw, William A. Fletcher,
Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea,
Sandra S. Ikuta and N. Randy Smith, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge W. Fletcher

14951
 UNITED STATES v. HINKSON 14955

COUNSEL

Dennis P. Riordan and Donald M. Horgan, San Francisco,
California, and Curtis R. Smith, Idaho Falls, Idaho, for the
defendant-appellant.

John F. De Pue and Michael D. Taxay, Department of Justice,
Washington, D.C., for the plaintiff-appellee.
14956 UNITED STATES v. HINKSON
OPINION

BEA, Circuit Judge:

Today we consider the familiar “abuse of discretion” stan-
dard and how it limits our power as an appellate court to sub-
stitute our view of the facts, and the application of those facts
to law, for that of the district court.

* * *

Introduction

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.

While awaiting trial on his tax evasion case, Hinkson solic-
ited 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.
 UNITED STATES v. HINKSON 14957
We granted en banc review of the panel’s decision to
reverse the district court’s denial of Hinkson’s new trial
motion and, for the reasons explained below, we conclude
that our “abuse of discretion” standard is in need of clarifica-
tion. The standard, as it is currently described, grants a court
of appeals power to reverse a district court’s determination of
facts tried before it, and the application of those facts to law,
if the court of appeals forms a “definite and firm conviction
that a mistake has been committed.” At the same time, the
standard denies a court of appeals the power to reverse such
a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without
further objective guidance, whether we have a “definite and
firm conviction that mistake has been committed,” or whether
a district court’s finding is “permissible,” there has been no
effective limit on our power to substitute our judgment for
that of the district court.

Today, after review of our cases and relevant Supreme
Court precedent, we re-state the “abuse of discretion” stan-
dard of review of a trial court’s factual findings as an objec-
tive 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 deci-
sion 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 stan-
dard, were illogical, implausible, or without support in infer-
ences that may be drawn from facts in the record.

Applying our “abuse of discretion” test, we affirm the dis-
trict court’s rulings.

Background

Hinkson owned and operated a Grangeville, Idaho water-
bottling company called WaterOz, which sold bottled water
with purported health benefits.
14958 UNITED STATES v. HINKSON
Elven Joe Swisher was a water safety tester for a nearby
independent water testing company. In 2000, Hinkson hired
Swisher to test the WaterOz water on an ongoing basis. Hink-
son and Swisher became fast friends. Swisher told Hinkson he
was a veteran of the United States Marine Corps and a fire-
arms expert who had killed a number of people in the Korean
War. Swisher would later testify this seemed greatly to
impress Hinkson.

In April 2002, according to Swisher, Hinkson asked him to
torture and kill local attorney Dennis Albers and his family
because Albers had been causing legal trouble for Hinkson.
Hinskon offered Swisher $10,000 per “head” in payment.
Swisher thought Hinkson was joking and brushed off the sug-
gestion.

Meanwhile, Hinkson was refusing to pay federal income
tax on his WaterOz profits, asserting that the Constitution pro-
hibits the federal government from collecting income tax.
Assistant United States Attorney Nancy Cook and Internal
Revenue Service Special Agent Steven Hines led an investi-
gation into Hinkson’s possible tax evasion.

Swisher would later testify that in July or August 2002,
Hinkson asked him if he remembered his request regarding
Albers and his family. Swisher said he did, and Hinkson told
Swisher he wanted Cook and Hines and their families “treated
in the same way as Albers.” “I know you’re used to it,” Hink-
son prodded Swisher, “I mean, you have killed people.”
Swisher, less convinced this time that Hinkson was joking,
refused and threatened to report Hinkson to authorities.

In November 2002, Cook and Hines executed search war-
rants on Hinkson’s home; Hines arrested Hinkson on tax eva-
sion charges.1 The magistrate judge freed Hinkson on bail
1
The government eventually indicted and convicted Hinkson on tax eva-
sion and related charges. United States v. Hinkson, 281 Fed. Appx. 651,
653 (9th Cir. 2008).
 UNITED STATES v. HINKSON 14959
pending trial. Judge Edward J. Lodge of the United States
District Court for the District of Idaho was assigned the case.

While Hinkson was on pretrial release on the tax evasion
charges, Swisher later testified, Hinkson once again asked
Swisher to torture and kill Cook and Hines and their families;
this time he also added Judge Lodge to the list. Hinkson again
offered Swisher $10,000 per “head,” and even “pleaded” with
Swisher to do the deed, calling Swisher his “best friend.”
Swisher declined.

The relationship between Swisher and Hinkson soon
soured. A WaterOz employee named Richard Bellon sued
Hinkson for control of WaterOz, and Hinkson in turn sued
Swisher. Swisher counterclaimed against Hinkson for more
than $500,000.

In January 2003, Hinkson met bodyguard-turned-restaurant
manager James Harding at a “health forum” in Southern Cali-
fornia. Hinkson offered Harding a job at WaterOz and invited
him to stay in Hinkson’s home. Harding later testified that,
during his stay, Hinkson handed him a “large amount” of cash
and offered him $20,000 total if he would kill Cook, Hines,
and Lodge. Harding refused. In March 2003, Hinkson again
asked Harding to kill Cook, Hines, and Lodge. Harding again
refused. After this second request, Harding called the FBI and
reported Hinkson’s solicitations.

Shortly thereafter, in Spring or Summer 2003, Swisher told
an Idaho state prosecutor that Hinkson had solicited him to
kill Cook, Hines, and Lodge. Swisher then contacted the FBI
and told the FBI the same.

On September 21, 2004, a federal grand jury in Idaho
indicted Hinkson for soliciting the murders of Cook, Hines,
and Lodge. The indictment contained 11 counts:
14960 UNITED STATES v. HINKSON
Counts 1 through 3 charged Hinkson with violating 18
U.S.C. § 3732 when he solicited Harding to torture and kill
Cook, Hines, and Lodge in January 2003.3

Counts 4 through 6 charged Hinkson with violating 18
U.S.C. § 373 when he solicited Harding to torture and kill
Cook, Hines, and Lodge a second time, in March 2003.4

Counts 7 through 9 charged Hinkson with violating 18
U.S.C. § 373 by soliciting Swisher to torture and kill Cook,
Hines, and Lodge.5

Counts 10 and 11 charged Hinkson with violating 18
U.S.C. § 1156 by threatening to kill the children of Cook and
Hines.7

2
18 U.S.C. § 373(a): “Whoever, with intent that another person engage
in conduct constituting a felony that has as an element the use, attempted
use, or threatened use of physical force . . . against the person of another
in violation of the laws of the United States, and under circumstances
strongly corroborative of that intent, solicits, commands, induces, or other-
wise endeavors to persuade such other person to engage in such conduct,
shall be imprisoned not more than one-half the maximum term of impris-
onment or . . . fined not more than one-half of the maximum fine pre-
scribed for the punishment of the crime solicited, or both; or if the crime
solicited is punishable by life imprisonment or death, shall be imprisoned
for not more than twenty years.”
3
The jury would eventually acquit Hinkson on these counts.
4
The jury would eventually deadlock on these counts.
5
The jury would eventually convict Hinkson on these counts.
6
18 U.S.C. § 115(a)(1)(A) (Influencing, impeding, or retaliating against
a Federal official by threatening or injuring a family member): “Whoever
. . . threatens to assault, kidnap or murder a member of the immediate fam-
ily of a United States official, a United States judge, [or] a Federal law
enforcement officer . . . [shall be imprisoned for a maximum of] six
years.”
7
The jury would eventually acquit Hinkson on these counts.
 UNITED STATES v. HINKSON 14961
Trial

Hinkson’s two-week jury trial began January 11, 2005. The
government’s opening statement revealed its theory of the
case as to counts 7-11: that Hinkson solicited Swisher in par-
ticular to murder Cook, Hines, and Lodge because Hinkson
believed Swisher was a battle-hardened Marine veteran with
numerous military kills to his name. The prosecution also
stated that Swisher was, in fact, such a battle-hardened veteran.8

The government called Swisher to testify three days later.
On direct examination, although the prosecutor asked whether
Swisher had served in the “Armed Forces”—and Swisher tes-
tified accurately that he had served in the U.S. Marine Corps
—the prosecutor did not ask whether Swisher had engaged in
combat or earned any decorations. Instead, the prosecutor
confined his questions to what Swisher had told Hinkson of
his combat experience. Swisher explained he had told Hink-
son he was a Korean War veteran with substantial combat
experience. Swisher also testified that Hinkson had solicited
him to torture and kill Cook, Hines, and Lodge.

On cross-examination, Hinkson’s attorney first sought to
impeach Swisher’s credibility by establishing that Swisher
harbored animosity toward Hinkson. He asked about litigation
involving the two former friends, and the bitter feud that had
developed between them. Hinkson’s attorney also attacked
inconsistencies in Swisher’s testimony.

After he had finished his cross-examination of Swisher for
such animosity toward Hinkson, Hinkson’s attorney asked for
a sidebar conference with the judge and opposing counsel,
outside the hearing of the jury. There he pointed out that
8
Hinkson neither objected to, nor moved to strike, this statement. The
trial judge instructed the jury statements of counsel were not evidence of
their content. The prosecutor did not repeat this claim in opening or clos-
ing argument. Hinkson does not assign this statement error on appeal.
14962 UNITED STATES v. HINKSON
Swisher appeared to be wearing a Purple Heart on his lapel,
and informed the court he had been trying to “dig into”
Swisher’s military history for “some time” because he did not
believe Swisher had served in the Korean War nor earned a
Purple Heart.9 Hinkson’s attorney pointed out that Swisher,
born in 1937, would have been between the ages of 13-16
during the Korean War of 1950-53.

Hinkson’s attorney then showed the court and counsel a let-
ter he had received that morning from a Bruce Tolbert, an
archives technician with the National Personnel Records Cen-
ter, which maintained official military records for the Armed
Forces (“Tolbert letter”). The Tolbert letter stated that Swish-
er’s official military record did not list him as entitled to any
personal military decorations, including a Purple Heart.

The prosecutor then noted that there was no testimony
explaining what Swisher had on his lapel, and that the prose-
cutor did not know what it was. The prosecutor also pointed
out that he had not questioned Swisher about his military
record during direct examination. Rather, Swisher was ques-
tioned only about what he told Hinkson about his military
record, because the government’s theory of the case was that
Hinkson’s belief in Swisher’s military experience was the rea-
son he had solicited Swisher in particular to commit the mur-
ders.

Hinkson’s attorney moved to re-open cross examination to
inquire about Swisher’s purported military service and the
object on his lapel. The prosecutor suggested Hinkson’s attor-
ney should not “go there.” But Hinkson’s attorney wanted to
“go there,” and the court granted the motion to re-open cross-
9
Indeed, Hinkson’s counsel had learned of Swisher’s claims of martial
glory at Swisher’s deposition three months earlier in the WaterOz case,
and again with the recent delivery of the transcript of Swisher’s testimony
before the Grand Jury that had indicted Hinkson for the charges on trial.
For more details, see infra at 14967-68.
 UNITED STATES v. HINKSON 14963
examination. In response to Hinkson’s attorney’s questions,
Swisher testified he was wearing “a Purple Heart medal”
awarded to him by the United States government, and that he
served in combat “following” the Korean War on classified
missions to free prisoners of war held in secret North Korean
prison camps.

Hinkson’s attorney then placed the Tolbert letter (which
stated Swisher had been awarded no medals) before Swisher
and asked him whether he still maintained that he was a com-
bat veteran who had earned a Purple Heart medal. Swisher
reiterated that he did, and, in a moment of Perry Mason court-
room drama, whipped from his jacket pocket a form titled
“Replacement DD-214.”10 Swisher’s “Replacement DD-214”
form was stamped “certified,” signed by a Capt. W. J. Wood-
ring, and dated October 1957. The form read that Swisher had
been awarded, and was entitled to wear, the Purple Heart
medal, the Silver Star, the Navy and Marine Corps medal with
Gold Star, and the Navy and Marine Corps Commendation
Medal with Combat “V.” The form also stated Swisher was
injured by shrapnel in combat.11

The court asked for a copy to be made of the “Replacement
DD-214” form for each party to review; the prosecutor replied
that he already had a copy—perhaps explaining why he had
suggested to defense counsel he not “go there.”12 Hinkson’s
attorney then moved for a mistrial on the ground the prosecu-
10
A DD-214 form is the military’s official discharge form, which lists
final rank and injuries or decorations, if any.
11
The only decoration before the jury was the Purple Heart, as to which
the trial judge ordered all such testimony stricken and to be disregarded.
The other decorations mentioned in the DD-214 were never mentioned to
the jury. The DD-214 was not admitted into evidence; its content was not
read to the jury.
12
Hinkson makes no claim on appeal the “Replacement DD-214” pro-
duced by Swisher at trial, a copy of which was in the prosecutor’s file,
constituted exonerating evidence under Brady v. Maryland, 373 U.S. 83
(1963).
14964 UNITED STATES v. HINKSON
tor admitted he knew of Swisher’s “Replacement DD-214”
form previously and should have spoken up about it. The
prosecutor replied that Hinkson’s attorney, not the govern-
ment, had brought up the issue whether Swisher was a deco-
rated combat veteran, and the prosecutor had even warned
Hinkson’s attorney not “to go there,” so the government bore
no responsibility for Swisher’s testimony on the subject. The
court agreed with the government that Hinkson’s attorney had
tried for a “grandstand play” that had backfired. However, the
court decided to instruct the jury that, after “a long day . . .
I made a mistake in allowing the questioning with regard to
the Purple Heart medal,” and the jury should “disregard com-
pletely all of Mr. Swisher’s testimony with regard to that mili-
tary commendation.”

Five days later, on January 19, 2005, Hinkson’s attorney
told the court the National Personnel Records Center would
provide a certified copy of Swisher’s full military record, but
only pursuant to a court-issued subpoena. The court issued a
subpoena for Swisher’s full military record that same day.

Two days later, on January 21, 2005, outside the presence
of the jury, the government brought to the court’s and Hink-
son’s attorney’s attention a letter from Lt. Col. K. G. Dowling
of the National Personnel Management Support Branch of the
United States Marine Corps, to Ron Keeley of the Idaho Vet-
erans Affairs Services (“Dowling” letter). The government
could not specify precisely when it received the letter, except
that it received the letter the preceding week.13

The Dowling letter was a response to Keeley’s inquiry to
the Marine Corps records department after Swisher attempted
to use the “Replacement DD-214” form he produced on the
13
As part of this appeal, the government sought and received judicial
notice of documents that were not before the district court and that show
the prosecutor received the Dowling letter on January 19, 2005. Hinkson
makes no Brady claim on appeal as to the Dowling letter.
 UNITED STATES v. HINKSON 14965
stand to obtain benefits from the Idaho branch of the Depart-
ment of Veterans Affairs. Keeley had inquired of Dowling
whether Swisher’s “Replacement DD-214” was legitimate.
Dowling’s response letter stated Swisher’s purported “Re-
placement DD-214” form did not exist in Swisher’s official
file. Instead, according to the Dowling letter, the “Replace-
ment DD-214” form in Swisher’s official file clearly read that
Swisher had not been awarded any medals and that, in fact,
he was injured in an automobile accident in Washington State,
not in combat. Further, the Dowling letter noted several of the
medals listed on Swisher’s purported “Replacement DD-214”
form did not even exist in 1957, when the form was dated.

That same day, January 21, 2005, Swisher’s official mili-
tary file arrived at the court. The file contained a “Replace-
ment DD-214” form identical to the form described in the
Dowling letter—that is, a form listing no medals and no com-
bat wounds. Swisher’s official military file also contained the
Dowling letter itself, and two photocopies of documents Kee-
ley had sent to Dowling for authentication: (1) the Swisher-
produced “Replacement DD-214” form, and (2) a letter
Swisher provided Keeley along with it. This letter, which bore
the signature of the same Woodring (now a Colonel) whose
signature appeared on Swisher’s purported “Replacement
DD-214” form, was dated October 16, 1957 (“Woodring let-
ter”). The Woodring letter stated the Purple Heart and other
medals listed on Swisher’s purported “Replacement DD-214”
form had been “certified” by military command and that
Swisher was entitled to wear them.

After reading Swisher’s full military record in camera, the
court informed counsel that Swisher’s military file appeared
to state Swisher was involved in “top secret activities” and
was “awarded the medals he says he was awarded.” The court
concluded, however, the file was “very difficult to decipher”
and the documents were “neither self-authenticating nor self-
explanatory.” The court stated it was “not convinced” one
way or the other whether the Swisher-produced “Replacement
14966 UNITED STATES v. HINKSON
DD-214” form was credible because Swisher’s military
record was “not explanatory.”

The court said evidence that might establish whether
Swisher was a fraud could include testimony from a custodian
of military records who could interpret Swisher’s military file,
or from Col. Woodring, whose signature appeared on the
Swisher-produced “Replacement DD-214” form. Hinkson’s
attorney did not move for a continuance of the trial to allow
him time to procure such a custodian to decipher the military
record, or to procure testimony from Col. Woodring.

Hinkson’s attorney nevertheless offered both the Dowling
letter and Swisher’s military file into evidence. The court
found both inadmissible for two reasons: (1) the Dowling let-
ter and Swisher’s military file were unauthenticated and
facially inconclusive as to whether Swisher had lied about his
military record, and without any foundation, the court
excluded the evidence under Federal Rule of Evidence 403 as
distracting, confusing, and a waste of significant time; and (2)
the documents had no relevance other than as extrinsic evi-
dence probative of a specific incident of Swisher’s untruthful-
ness, and thus were objectionable under Federal Rule of
Evidence 608(b).14

The court gave Hinkson’s attorney an option to re-open
cross-examination of Swisher to inquire about Swisher’s mili-
tary record and the veracity of his prior testimony about his
medals. The court also cautioned Hinkson’s attorney he could
not introduce the Dowling letter or military record into evi-
14
Fed. R. Evid. 608(b): “Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness’ character for truth-
fulness . . . may not be proved by extrinsic evidence. They may, however,
in the discretion of the court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness (1) concerning the
witness’ character for truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.”
 UNITED STATES v. HINKSON 14967
dence, because introduction of such extrinsic evidence was
prohibited by Fed. R. Evid. 608(b). Hinkson’s attorney chose
not to re-open cross-examination.

Four days later, on January 25, 2005, the government gave
a closing argument that contended Hinkson’s belief that
Swisher was a tough combat veteran with multiple kills to his
name was the reason Hinkson solicited Swisher to kill Cook,
Hines, and Lodge.

The jury deliberated for two days before convicting Hink-
son of soliciting Swisher to kill Cook, Hines, and Lodge. The
jury deadlocked on whether Hinkson solicited Harding to kill
Cook, Hines, and Lodge in March 2003, and acquitted Hink-
son on each of the other counts.

Motion for a New Trial

Hinkson timely moved for a new trial under Federal Rule
of Criminal Procedure 33 based, in relevant part, on “newly
discovered evidence” that Swisher’s “Replacement DD-214”
form was forged and that Swisher committed perjury regard-
ing his military record.15 Hinkson accompanied his motion
with affidavits from (1) Chief Warrant Officer W. E. Miller,
the Marine Corps liaison to the National Personnel Records
Center (“Miller affidavit”), and (2) Col. Woodring, whose
signature was affixed to the Woodring letter that validated the
Swisher-produced “Replacement DD-214” form, as well as
that apparently bogus “Replacement DD-214” form itself
(“Woodring affidavit”).

The Miller affidavit averred Swisher was never awarded
any of the medals he claimed, and that he was injured in a pri-
vate motor vehicle accident in Washington state. The Miller
15
Hinkson makes no claim the government produced testimony it knew
was perjured. See Napue v. Illinois, 360 U.S. 264 (1959).
14968 UNITED STATES v. HINKSON
affidavit further stated that the Swisher-produced “Replace-
ment DD-214” form was forged.

The Woodring affidavit averred Col. Woodring had never
signed the letter in Swisher’s file that Swisher provided Kee-
ley when seeking veterans benefits, and that the signature in
the letter had been artificially superimposed. The Woodring
affidavit also averred that Col. Woodring never signed Swish-
er’s purported “Replacement DD-214” form.16

The district court denied Hinkson’s motion for a new trial.
The order denying Hinkson’s motion for a new trial stated the
trial court’s findings that Hinkson failed to meet his burden of
demonstrating a right to a new trial based on the five factors
discussed in United States v. Harrington, 410 F.3d 598 (9th
Cir. 2005). The Harrington factors are:

(1) the evidence must be newly discovered;

(2) the failure to discover the evidence sooner must
not be the result of the defendant’s lack of diligence;

(3) the evidence must be “material” to the issues at
trial;

(4) the evidence may not be (a) cumulative or (b)
“merely impeaching”; and

(5) the evidence must indicate that a new trial would
“probably” result in acquittal.

Id. at 601.

First, the district court held “most” of the now-proffered
16
Based on this evidence, on August 30, 2007, a jury convicted Swisher
of wearing an unearned medal in violation of 18 U.S.C. § 704(a) and other
related offenses.
 UNITED STATES v. HINKSON 14969
evidence in the Miller and Woodring affidavits was not
“newly discovered” because it contained no new information
but only the substance of the evidence Hinkson had attempted
to introduce at trial: that Swisher did not have the military
record he claimed and was not entitled to the honors he testi-
fied he won. The court thus found the evidence offered noth-
ing substantively “new.”

Second, the district court concluded Hinkson had not been
diligent in acquiring the evidence contained in the Miller and
Woodring affidavits. The court pointed out that Hinkson’s
attorney stated during trial that he had been investigating
Swisher’s military record for “quite some time” because he
was doubtful, given Swisher’s 1937 birth date, that Swisher
had served in the 1950-53 Korean War. Further, the court
noted that Swisher had testified, as a party witness in an Octo-
ber 2004 deposition—three months before Hinkson’s trial on
murder solicitation charges—to his claimed, but perhaps
bogus, military record. That deposition was taken by the same
attorney who represented Hinkson in his criminal trial. In
addition, the court related that Swisher had testified to the
same Korean War combat experience in his appearances
before the federal grand jury investigating Hinkson’s tax and
solicitation crimes, and the government had delivered tran-
scripts of Swisher’s grand jury testimony to Hinkson a week
before this case came on for trial. The court thus found Hink-
son had sufficient opportunity and time to uncover and pro-
duce the evidence contained in the Miller and Woodring
affidavits before the end of trial.

Third, the district court held Hinkson’s proffered evidence
was not “material” to the issues at trial because the evidence
was inadmissible under Federal Rule of Evidence 608(b) as
extrinsic evidence offered to impeach a witness on a specific
instance of untruthfulness. The court also reiterated its earlier
holding that the evidence was excludable under the Federal
Rule of Evidence 403.
14970 UNITED STATES v. HINKSON
Fourth, the district court found the proffered evidence was
both cumulative of evidence proffered at trial and “merely
impeaching.” The court found the evidence cumulative
because it repeated Hinkson’s attorney’s assertions that
Swisher was not the military hero he claimed to be, assertions
Hinkson made at trial based on Swisher’s age. The court
found the evidence “merely impeaching” because it did noth-
ing more than attack Swisher’s credibility regarding his mili-
tary service rather than his testimony regarding the
solicitations charged. Further, the Court found Hinkson had
several other opportunities to question Swisher’s credibility,
based on (1) Swisher’s youth at the time of the Korean War,
(2) Swisher’s ongoing feud with Hinkson over WaterOz, and
(3) Hinkson’s opportunity to show the Dowling letter to
Swisher in a re-opened cross-examination of Swisher (an
offer Hinkson’s attorney had declined).

Fifth, the district court found the proffered evidence did not
indicate a new trial would “probably” result in acquittal,
because the evidence would be inadmissible on such new trial
under Federal Rule of Evidence 403 or 608(b). Also, the court
had ordered all testimony regarding Swisher’s Purple Heart
stricken from the record and instructed the jury to disregard
it, so the Miller and Woodring affidavits could have no practi-
cal effect on the jury’s deliberations; Swisher’s claim to the
Purple Heart was no longer before the jury.

Hinkson timely appealed his conviction on three grounds.
First, Hinkson contends he was entitled to a new trial based
on his discovery of the Miller and Woodring affidavits, which
Hinkson contends conclusively established Swisher lied about
his military record.17 Second, Hinkson contends the district
court erred by precluding Hinkson from introducing the Dow-
17
Hinkson appeals the district court’s denial of his motion for a new trial
solely based on Hinkson’s contention the district court erred in its consid-
eration of his claimed “newly discovered” evidence of the Miller and
Woodring affidavits.
 UNITED STATES v. HINKSON 14971
ling letter and Swisher’s military file into evidence during
trial. Third, Hinkson contends the government engaged in
prosecutorial misconduct by mentioning Swisher’s military
service in its closing argument when it had reason to doubt
Swisher’s truthfulness.

* * *

Analysis

Motion for a New Trial

We review a district court’s order denying a motion for a
new trial made on the ground of newly discovered evidence
for abuse of discretion. United States v. Reyes-Alvarado, 963
F.2d 1184, 1188 (9th Cir. 1992). We invoke that standard of
review as we have hundreds of times before, but this case
forces us to step back and consider precisely what “abuse of
discretion” means, in the context of a trial court’s factual find-
ings, as applied to legal rules.

In this case, the district court’s analysis of Hinkson’s
motion for new trial involved an application of fact to law—
whether the facts as they occurred at trial, combined with
Hinkson’s purported “newly discovered” evidence, warranted
a new trial under controlling law. We review applications of
fact to law in one of two ways: if the district court’s applica-
tion of fact to law “requires an inquiry that is essentially fac-
tual,” we review it as if it were a factual finding; if the district
court’s application of fact to law requires reference to “the
values that animate legal principles,” we review it as if it were
a legal finding. See United States v. McConney, 728 F.2d
1195, 1202 (9th Cir. 1984). Here, the entirety of the district
court’s analysis rested on the specific facts as they occurred
at trial and the relative factual importance of Hinkson’s pur-
ported “newly discovered” evidence. The court’s analysis did
not rest on “the values that animate legal principles,” such as
the meaning of due diligence or the conceptual basis for
14972 UNITED STATES v. HINKSON
granting new trials, but instead was, in all respects, “essen-
tially factual.” Accordingly, for standard of review purposes,
we treat the district court’s application of fact to law here
exactly the same way as we treat factual findings.

The Supreme Court explained the meaning of the abuse of
discretion standard in Cooter & Gell v. Hartmax Corp., 496
U.S. 384 (1990), where the court stated, “A district court
would necessarily abuse its discretion if it based its ruling on
an erroneous view of the law or a clearly erroneous assess-
ment of the evidence.” Id. at 405. In other words, the Court
defined abuse of discretion review of factual findings in terms
of “clearly erroneous” review, holding that “[w]hen an appel-
late court reviews a district court’s factual findings, the abuse-
of-discretion and clearly erroneous standards are indistin-
guishable: A court of appeals would be justified in concluding
that a district court had abused its discretion in making a fac-
tual finding only if the finding were clearly erroneous.” Id. at
400-01.

When considering whether a district court erred in applying
law to facts, we look to the substance of the issue on review
to determine if the question is factual or legal. “If application
of the rule of law to the facts requires an inquiry that is
‘essentially factual,’—one that is founded ‘on the application
of the fact-finding tribunal’s experience with the mainsprings
of human conduct,’—the concerns of judicial administration
will favor the district court, and the district court’s determina-
tion should be classified as one of fact reviewable under the
clearly erroneous standard.” McConney, 728 F.2d at 1202
(quoting Comm’r v. Duberstein, 363 U.S. 278, 289 (1960)
(internal citation omitted)). This category includes questions
such as motive, intent, and negligence. See id. at 1203-04. “If,
on the other hand, the question requires us to consider legal
concepts in the mix of fact and law and to exercise judgment
about the values that animate legal principles, then the con-
cerns of judicial administration will favor the appellate court,
and the question should be classified as one of law and
 UNITED STATES v. HINKSON 14973
reviewed de novo.” Id. at 1202. This category includes ques-
tions such as whether defendants’ conduct constituted a con-
spiracy in violation of the Sherman Act, and questions that
implicate constitutional rights. Id.

When reviewing factual findings, the Supreme Court has
held that “a finding is ‘clearly erroneous’ when, although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948). The U.S. Gypsum Co.
definition of “clearly erroneous” review permits an appellate
court to find a trial court’s factual determination is clearly
erroneous—regardless whether there is some record evidence
on which the trial court grounded that determination—if the
court of appeals decides, “definitely and firmly,” that the trial
court made a “mistake.” The Court has repeatedly affirmed
the U.S. Gypsum Co. explanation of the clearly erroneous
standard of review. See, e.g., Easley v. Cromartie, 532 U.S.
234, 242 (2001) (noting that under the “clear error” standard
of review, “a reviewing court must ask ‘whether, on the entire
evidence,’ it is ‘left with the definite and firm conviction that
a mistake has been committed’ ”).

The year after U.S. Gypsum Co., however, the Supreme
Court held in United States v. Yellow Cab Co., 338 U.S. 338,
342 (1949), that a trial court’s “choice between two permissi-
ble views of the weight of evidence is not ‘clearly errone-
ous’ ” where the evidence “would support a conclusion either
way.” This contrasts with the notion expressed in U.S. Gyp-
sum Co. that a reviewing court may reverse as clearly errone-
ous a trial court’s factual findings whenever the reviewing
court develops a “definite and firm conviction” that the trial
court made a “mistake.” Yet, as with the U.S. Gypsum Co.
explanation of clearly erroneous review, the Supreme Court
has also repeatedly affirmed the Yellow Cab Co. definition of
“clearly erroneous” review. See, e.g., Cooter & Gell, 496 U.S.
at 400-401 (1990) (“Where there are two permissible views of
14974 UNITED STATES v. HINKSON
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”).

Because the Supreme Court has maintained both the Yellow
Cab Co. and U.S. Gypsum Co. definitions of “clearly errone-
ous” review, our court currently holds that “[a] district court
abuses its discretion when it makes an error of law, rests its
decision on clearly erroneous findings of fact, or when we are
left with ‘a definite and firm conviction that the district court
committed a clear error of judgment.’ ” United States v. 4.85
Acres of Land, More or Less, Situated in Lincoln County,
Mont., 546 F.3d 613, 617 (9th Cir. 2008). This present stan-
dard, particularly given the final clause, is so broad as to pro-
vide us with little effective direction as to when we can
exercise our power to reverse a district court’s factual finding.
Despite the wide latitude seemingly provided to appellate
courts by U.S. Gypsum Co.’s “definite and firm conviction”
definition of clear error, we know from Yellow Cab Co. and
its progeny that our review of a factual finding may not look
to what we would have done had we been in the trial court’s
place in the first instance, because that review would be de
novo and without deference. Rather, the scope of our review
limits us to determining whether the trial court reached a deci-
sion that falls within any of the permissible choices the court
could have made. In other words, the Supreme Court’s prece-
dent convinces us that any “definite and firm conviction” of
the reviewing court must still include some measure of defer-
ence to the trial court’s factual determinations.

This principle is illustrated in Anderson v. City of Bessemer
City, N.C., 470 U.S. 564 (1985). In Anderson, the trial court
had made a series of factual findings from which it concluded
the female candidate for Recreation Director was skipped
over for the job due to her gender, all in violation of Title VII
of the Civil Rights Act of 1964.

On appeal, the Fourth Circuit, after giving “close scrutiny
of the record,” Anderson, 470 U.S. at 571, made findings con-
 UNITED STATES v. HINKSON 14975
trary to those of the trial court: the court of appeals found that
the female candidate was not, in fact, the most qualified can-
didate, and that, according to its own weighing of the evi-
dence, the selection committee had not been biased against
the candidate because she was a woman. Thus, the appellate
court held the district court’s factual findings were clearly
erroneous, and reversed.

Considering the analyses of both the trial court and the
appellate court, the Supreme Court concluded that “[e]ach has
support in inferences that may be drawn from the facts in the
record” and neither was “illogical or implausible.” Id. at 577.
Because all the reasons for appellate court deference to trial
court factual findings frame the proper issue as whether the
trial court’s findings—not the appellate court’s—were clearly
erroneous, the Court held the court of appeals had erred in
concluding the trial court’s findings were clearly erroneous;
the appellate court’s contrary findings were just as much a
“permissible” view of the evidence as the trial court’s. See id.
at 574.

Thus, in Anderson, the Court held a trial court’s findings
were not clearly erroneous even though the court of appeals
had developed a “definite and firm conviction that a mistake
has been committed,” id. at 573, because the trial court’s
“permissible” findings were not “illogical or implausible” and
had “support in inferences that may be drawn from the facts
in the record.” Id. at 577. It follows that even when a court
of appeals determines a trial court’s findings are “permissi-
ble” (Yellow Cab Co.) or not a “mistake” (U.S. Gypsum Co.),
the court of appeals must reverse if the district court’s deter-
mination is “illogical or implausible” or lacks “support in
inferences that may be drawn from facts in the record.”

In sum, this analysis leads us to conclude that, by way of
the Anderson case, we can create an objective abuse of discre-
tion test that brings the Yellow Cab Co. and U.S. Gypsum Co.
lines of cases together.
14976 UNITED STATES v. HINKSON
Our Abuse of Discretion Test

[1] We adopt a two-part test to determine objectively
whether a district court has abused its discretion in denying a
motion for a new trial.

[2] The Supreme Court has held that a district court abuses
its discretion when it makes an error of law. Cooter & Gell,
496 U.S. at 405 (“A district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the
law . . . .”). Thus, the first step of our abuse of discretion test
is to determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested.18 If the trial
court failed to do so, we must conclude it abused its discre-
tion.

[3] If the trial court identified the correct legal rule, we
move to the second step of our abuse of discretion test. This
step deals with the tension between the Supreme Court’s
holding that we may reverse a discretionary trial court factual
finding19 if we are “left with the definite and firm conviction
that a mistake has been committed,” U.S. Gypsum Co., 333
U.S. at 395, and its holding that we may not simply substitute
our view for that of the district court, but rather must give the
district court’s findings deference, see Nat’l Hockey League,
427 U.S. at 642. Resolving that tension by reference to Ander-
son, we hold that the second step of our abuse of discretion
test is to determine whether the trial court’s application of the
correct legal standard was (1) “illogical,” (2) “implausible,”
or (3) without “support in inferences that may be drawn from
the facts in the record.”20 Anderson, 470 U.S. at 577. If any
18
Here, for instance, the correct legal rule for analyzing a motion for a
new trial based on “newly discovered” evidence is found in the Harring-
ton test.
19
Or “essentially factual” application of fact to law. See McConney, 728
F.2d at 1202.
20
We do not think this test is redundant of the previous, conflicting
explanations of clearly erroneous review: that the court of appeals must
 UNITED STATES v. HINKSON 14977
of these three apply, only then are we able to have a “definite
and firm conviction” that the district court reached a conclu-
sion that was a “mistake” or was not among its “permissible”
options, and thus that it abused its discretion by making a
clearly erroneous finding of fact.21

affirm a district court factual finding that is “permissible” (Yellow Cab
Co.), but that the court of appeals must reverse a district court’s factual
finding any time it “has a definite and firm conviction that a mistake has
been made” (U.S. Gypsum Co.).
First, according to Merriam-Webster, the word “permissible” simply
means “allowable.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, “per-
missible” (11th ed. 2008). But: what kind of a district court determination
is “allowable”? The word itself provides no objective answer, and thus a
court of appeals might be bound to affirm a trial court’s finding that
reflected the trial court’s subjective determination or whim. Our invoca-
tion of Anderson at the second step of our abuse of discretion test removes
this risk by providing a more firm, objective guide to determine what kind
of factual finding should be affirmed.
Second, the “definite and firm conviction” standard essentially requires
the court of appeals to decide with “conviction” that “a mistake has been
made.” But: how is the court of appeals to know what constitutes a “mis-
take”? Again, the answer is: a determination that is illogical, implausible,
or without basis in the record. Once more, this test gives body to the other-
wise totally open-ended standard that a court of appeals may reverse a dis-
trict court’s “mistake.”
Finally, we must remember the Supreme Court itself used the factors
outlined in our abuse of discretion test to formulate its analysis in Ander-
son, and used those factors in a fashion that was not redundant or cumula-
tive of the other explanations the Court gave for the clearly erroneous
standard of review.
21
This view of our test for abuse of discretion review—one that looks
to whether the district court reaches a result that is illogical, implausible,
or without support in inferences that may be drawn from the facts in the
record—is one that already has partial support in a number of our cases
and in those of other circuits. See, e.g., Wilderness Soc’y v. Babbitt, 5 F.3d
383, 387 (9th Cir. 1993) (“The court’s decision . . . is not implausible and,
based upon this factor alone, the court’s decision would not be considered
an abuse of discretion.”); see also Savic v. United States, 918 F.2d 696,
700 (7th Cir. 1990) (“A finding is clearly erroneous when, although there
may be some evidence to support it, ‘the reviewing court on the entire evi-
14978 UNITED STATES v. HINKSON
A significantly deferential test that looks to whether the
district court reaches a result that is illogical, implausible, or
without support in inferences that may be drawn from the
record makes particularly good sense in the context of a
motion for new trial. See United States v. Heath, 260 F.2d
623, 626 (9th Cir. 1958) (“To prevent possible prejudice on
trial beyond the general atmosphere of impartiality which tra-
ditionally pervades the courtroom, trial judges have wide dis-
cretion to methods of control. Among these are . . . grant of
new trial.”); Freund v. Nycomed Amersham, 347 F.3d 752,
765 (9th Cir. 2003) (“The district court is most familiar with
the context of the trial, and enjoys broad discretion with
regard to a new trial motion.”); see also Allied Chem. Corp.
v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (“The authority to
grant a new trial . . . is confided almost entirely to the exercise
of discretion on the part of the trial court.”).

Accordingly, we 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 with-
out 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 auto-

dence is left with the definite and firm conviction that a mistake has been
committed.’ We may have such a conviction if the trial judge’s interpreta-
tion of the facts is implausible, illogical, internally inconsistent or contra-
dicted by documentary or other extrinsic evidence.’ ”) (citations omitted),
cert. den., 502 U.S. 813 (1991); United States v. Jacquinot, 258 F.3d 423,
427 (5th Cir. 2001) (“A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.”); Conte v. Gen. House-
wares Corp., 215 F.3d 628, 634 (6th Cir. 2000) (“[W]e cannot conclude
that the district court’s decision was so unreasonable, illogical, or arbitrary
as to constitute an abuse of discretion.”).
 UNITED STATES v. HINKSON 14979
matically 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 finding22 unless that find-
ing is illogical, implausible, or without support in inferences
that may be drawn from the record.23

22
Or “essentially factual” application of fact to law. See McConney, 728
F.2d at 1202.
23
Appellate review of a district court’s decision to abstain from exercis-
ing jurisdiction over a case is not altered by our opinion today. A district
court’s decision to abstain from exercising jurisdiction under Younger v.
Harris, 401 U.S. 37 (1971), is reviewed de novo in this circuit. World
Famous Drinking Emporium Inc. v. Tempe, 820 F.2d 1079, 1081 (9th Cir.
1987). Moreover, in abstention cases arising under Railroad Commission
v. Pullman Co., 312 U.S. 496 (1941), “abuse of discretion” is a phrase
used exclusively to perform a legal question analysis, not an analysis of
factual findings. For example, in Pullman, the Supreme Court held, sua
sponte, that the district court “should have exercised its wise discretion”
to abstain from exercising jurisdiction, because a state statute could poten-
tially decide the issue, a state court had not yet interpreted that state stat-
ute, and the application of that state statute could avoid the federal
constitutional question in the case. These were all legal, not factual, issues.
In the rare case in which a district court’s factual findings do affect its
decision to apply the abstention doctrine, those factual findings would be
reviewed for abuse of discretion as we clarify that standard today. For
example, in Pullman, suppose a porter sues the Texas Railroad Commis-
sion in district court, and in its first response to the complaint, the Com-
mission moves to dismiss on grounds the plaintiff is not actually a
certified porter and has no standing to sue. The porter submits a certifica-
tion document which the Commission claims is bogus. The district court’s
ruling on the authenticity of the document, crucial to its decision on stand-
ing, would be reviewed for abuse of discretion. It would make no sense
to review the district court’s factual finding under a standard other than the
abuse of discretion standard we announce today. If we attempted a de
novo review of that factual finding, we would be straying far from our role
as an appellate court. Rather, the sensible approach is to uphold the trial
court’s finding of fact, provided that finding is not illogical, implausible,
or without any support in the record.
14980 UNITED STATES v. HINKSON
Application of Our Abuse of Discretion Test

[4] 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
of the Miller affidavit (which averred Swisher was never
awarded any of the medals he claimed, that he was injured in
a private motor vehicle accident in Washington state, and that
the purported “Replacement DD-214” form Swisher produced
on the stand was forged) and the Woodring affidavit (which
averred Col. Woodring never signed the letter in Swisher’s
file that Swisher provided Keeley when seeking veterans ben-
efits, and that Col. Woodring never signed Swisher’s pur-
ported “Replacement DD-214” form, which Swisher
produced on the witness stand).

First, we look to whether the district court identified the
correct legal standard. Here, the district court accurately iden-
tified the correct five-part legal test outlined in United States
v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005), to analyze
Hinkson’s motion for a new trial brought on the basis of
newly discovered evidence.24

The Harrington test requires a party seeking a new trial to
prove each of the following: (1) the evidence is newly discov-
ered; (2) the defendant was diligent in seeking the evidence;
(3) the evidence is material to the issues at trial; (4) the evi-
dence is not (a) cumulative or (b) merely impeaching; and (5)
the evidence indicates the defendant would probably be
acquitted in a new trial. Id.

Second, because the Harrington test is essentially factual,
requiring considerations that are “founded on the application
of the fact-finding tribunal’s experience with the mainsprings
of human conduct,” rather than requiring “consideration of
24
The district court cited to United States v. Waggoner, 339 F.3d 915,
919 (9th Cir. 2003), which used the same test as did Harrington.
 UNITED STATES v. HINKSON 14981
abstract legal principles,” McConney, 728 F.2d at 1202, we
look to whether the district court’s findings of fact, and its
application of those findings of fact to the Harrington factors,
were illogical, implausible, or without support in inferences
that may be drawn from facts in the record.

[5] Under the initial step of the Harrington test, the district
court found the Miller and Woodring affidavits did not con-
tain “newly discovered” evidence because the substance of
the affidavits was simply not “newly discovered.” The district
court found that the information contained in the Miller and
Woodring affidavits, while newly written, did not provide any
new information that was not already considered and rejected
from evidentiary admission by the court: the affidavits merely
supported the previously proffered evidence that Swisher’s
purported “Replacement DD-214” form was phoney and that
he had not earned any medals. The district court’s determina-
tion the proffered affidavit evidence was not “newly discov-
ered” was logical and plausible, based on the facts in the
record. Thus, the court’s conclusion did not constitute a
clearly erroneous factual finding nor an abuse of discretion.

[6] Second, the district court found Hinkson’s counsel was
not diligent in seeking the purported newly discovered evi-
dence, as required by the second Harrington step, because,
before his re-opened cross-examination of Swisher at trial on
January 14, 2005, counsel told the court he had been investi-
gating Swisher’s military record for “quite some time.” In
fact, three months before trial, the same counsel had repre-
sented Hinkson in a civil action in which Hinkson and
Swisher were bitter adversaries, and had deposed Swisher. At
his deposition, Swisher claimed battlefield injuries from gre-
nade explosions and that he was born in 1937, putting him at
age 13-16 during the 1950-53 Korean War.25 (The govern-
25
The minimum age for enlistment in the Armed Forces during the
Korean War was 18, or 17 with parental consent. See 10 U.S.C. §§ 628,
634 (1952).
14982 UNITED STATES v. HINKSON
ment also disclosed Swisher’s grand jury testimony a week
before trial, in which Swisher made the same claims.) Yet,
counsel still did not procure the Miller and Woodring affida-
vits (much less Miller and Woodring’s presence as witnesses)
until February 24 and 27, more than a month after the first
cross-examination of Swisher and nearly four months after
suspicions first should have been raised by Swisher’s deposi-
tion testimony in the civil action. Nor did Hinkson’s counsel
request a continuance during trial to seek out the proof con-
tained in the Miller and Woodring affidavits, which was pre-
cisely the evidence the district court said might help it
understand Swisher’s true military record. Based on these
facts, the district court’s finding that Hinkson’s attorney did
not exercise due diligence in seeking authoritative evidence of
Swisher’s true military past was logical, plausible, and based
on inferences drawn from the facts in the record. Thus, it was
not a clearly erroneous finding nor an abuse of discretion.26

[7] Third, the district court found the Woodring and Miller
affidavits were not material to the case in any event, as
required by the next Harrington step, because they related
evidence that would be inadmissible under Federal Rule of
Evidence 403. The district court found the probative value of
the evidence described in the Miller and Woodring affidavits
was substantially outweighed by the danger of confusion of
the issues, misleading the jury, undue delay, and waste of
26
The dissent confuses the issue by stating that it was the government
that was not diligent in investigating the record of its star witness at trial.
The issue is not what the government should or should not have done to
assist defense counsel in determining whether Swisher was lying about his
military record (a fact that is not material to the underlying issue at trial).
Harrington asks this: did defense counsel act diligently in pursuing the
evidence it wishes to proffer at a new trial? Harrington, 410 F.3d at 601.
Defense counsel waited months after being put on notice Swisher’s mili-
tary service claims could be bogus before procuring the Woodring and
Miller affidavits and failed to even request a continuance from the district
court in the interim. The district court correctly found that defense counsel
was not diligent.
 UNITED STATES v. HINKSON 14983
time. After all, the material point was whether Swisher told
Hinkson he had killed men in battle, not whether he had actu-
ally done so; the relevancy was to whether Hinkson offered
Swisher money to kill three targets of Hinkson’s ire.27 The
district court concluded that substantial time waste and confu-
sion would result from proof of authentication and explana-
tion of the documents, and all for a tangential issue unrelated
to the factual issues to be resolved by the jury. This conclu-
sion, which rests within the traditional powers given to trial
judges to conduct trials, was based on plausible inferences
from facts in the record, especially given the district court’s
advantage in determining how to run its courtroom efficiently.
Thus, it was not a clearly erroneous finding nor an abuse of
the court’s discretion.

[8] Fourth, as discussed above, the district court found the
Miller and Woodring affidavits offered no new information
beyond that which had already been proffered for admission
into evidence but rejected as inadmissible—that Swisher had
not won any decorations during the Korean War and that his
purported “Replacement DD-214” was bogus. For that reason,
the district court concluded the information in the claimed
“newly discovered” evidence was cumulative of information
proffered during trial. Thus, the court found a new trial unnec-
essary under the fourth Harrington step, which requires the
“newly discovered” evidence not be “cumulative.”

The only new fact revealed by the Miller and Woodring
affidavits was that the Woodring signature on the Swisher-
produced “Replacement DD-214” form was a forgery. How-
ever, Hinkson’s attorney had already proffered evidence that
27
This is a similar issue to that which arises in cases where undercover
police officers sell cocaine-labeled powdered sugar to unsuspecting pur-
chasers, who are then charged with attempted purchase of a controlled
substance; the only relevant question is whether the purchaser thought he
was buying cocaine, not whether it was indeed cocaine that was pur-
chased. United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978).
14984 UNITED STATES v. HINKSON
such “Replacement DD-214” form was a forgery, in the form
of the Tolbert and Dowling letters. Accordingly, the district
court’s conclusion that, based on the facts in the record, the
information contained in the Miller and Woodring affidavits
was cumulative of information in previously proffered evi-
dence, was not illogical or implausible.

[9] Further, the district court found the evidence served no
purpose other than to impeach Swisher, which also doomed
Hinkson’s new trial motion under the fourth step of the Har-
rington test. Hinkson contends Swisher was a critical witness
for the government’s case, so any impeachment of his credi-
bility would have undermined the government’s entire case.
But, even if Hinkson’s contention were not post-hoc specula-
tion, it does not change the fact that evidentiary admission of
the extrinsic Miller and Woodring affidavits would serve no
purpose other than to impeach Swisher’s testimony as to his
military record rather than his testimony as to Hinkson’s
solicitations. It is not material whether Swisher’s wearing of
a miniature Purple Heart when he testified constituted a state-
ment regarding his military service, because the Miller and
Woodring affidavits would serve only to impeach that state-
ment, and thus still not constitute evidence that Swisher did
not portray himself as a grizzled combat killer to Hinkson or
that Hinkson did not solicit Swisher to kill the three targeted
individuals. Thus, the district court’s finding that the “newly
discovered” evidence served only to impeach Swisher’s testi-
mony was logical, plausible, and based entirely on the facts
in the record. Consequently, it was not a clearly erroneous
finding nor an abuse of discretion.

[10] Finally, the district court found that because the gov-
ernment’s theory of the case was simply that Hinkson
believed Swisher was a battlefield veteran, and not that
Swisher actually was one, the evidence described in the Woo-
dring and Miller affidavits did not make it probable the jury
would acquit on retrial, as required by the fifth step of the
Harrington test. At most, the affidavits related evidence that
 UNITED STATES v. HINKSON 14985
Swisher was a liar with regard to his military past. But extrin-
sic evidence that someone lied about a particular event in his
past—such as the extent of his military service—is, as dis-
cussed, excludable under Rule 403. So, what effect on a jury
could excluded evidence have? None. Thus, the district
court’s finding that the “newly discovered” evidence was not
likely to change the result in a re-trial was logical based on
its evidentiary ruling and its plausible interpretation of the
facts in the record.28 Therefore, it was not a clearly erroneous
finding nor an abuse of discretion.

[11] Accordingly, the district court (1) identified the correct
legal standard to analyze Hinkson’s motion for a new trial,
and (2) the court’s findings of fact, and its application of those
findings of fact to the correct legal standard, were not illogi-
cal, implausible, or without support in inferences that may be
drawn from the facts in the record. Therefore, the district
court did not abuse its discretion in denying Hinkson’s new
trial motion.

Exclusion of Evidence at Trial

Hinkson also contends the district court violated his consti-
tutional rights to present a defense, to confront witnesses
against him, and to a fair trial because the district court incor-
rectly refused to admit into evidence the Dowling letter
(which stated Swisher’s “Replacement DD-214” form was not
in Swisher’s official military file) and Swisher’s official mili-
28
It is speculation to conclude acknowledgment of Swisher’s routine,
rather than heroic, military history would cause the government to keep
him off the stand on a retrial. Prosecutors are accustomed to proving their
cases through unsavory individuals, and a timely pre-trial motion would
limit questioning about Swisher’s military history other than as told to
Hinkson. As the dissent states at length, Swisher’s credibility could now
be impeached additionally by proof of his conviction for wearing an
unearned medal. But that conviction had not occurred at the time of Hink-
son’s new trial motion and could play no part in the trial judge’s estima-
tion of the probable result of a new trial. The trial judge did not err.
14986 UNITED STATES v. HINKSON
tary file itself, which the district court found to be unauthenti-
cated and indecipherable. The district court found this
evidence inadmissible under Federal Rules of Evidence 403
and 608(b). Because we hold the district court did not abuse
its discretion when it excluded the evidence under Rule 403,
we need not reach the issue raised under Rule 608(b).

[12] Hinkson contends the district court erred by excluding
the Dowling letter and Swisher’s military file from evidence
under Rule 403. A district court’s Rule 403 determination is
subject to great deference, because “the considerations arising
under Rule 403 are ‘susceptible only to case-by-case determi-
nations, requiring examination of the surrounding facts, cir-
cumstances, and issues.’ ” R.B. Matthews, Inc. v.
Transamerica Transp. Serv., Inc., 945 F.2d 269, 272 (9th Cir.
1991). Here, the district court weighed the limited probative
value of the evidence—to impeach testimony by Swisher
about his Purple Heart medal, which testimony the jury had
already been instructed to disregard—against the time it
would take to authenticate and explain the military file (which
the court found facially indecipherable) and the risk of con-
fusing the jury with the tangential evidence. The court con-
cluded the risk substantially outweighed the reward, and this
conclusion, which was not illogical nor implausible based on
the record, did not exceed the bounds of the district court’s
discretion in applying Rule 403.

Error in Closing Argument

Hinkson contends the district court erred by failing to order
a new trial sua sponte after the government’s closing argu-
ment because the prosecutor, knowing that Swisher likely was
not a combat veteran, argued to the jury that Swisher told
Hinkson he was a combat veteran, and that is why Hinkson
solicited Swisher to murder Cook, Hines, and Lodge. Review
is for plain error because Hinkson failed to object below.
United States v. Olano, 507 U.S. 725, 731-32 (1993). A plain
error is (1) an error (2) that is plain, (3) that affects “substan-
 UNITED STATES v. HINKSON 14987
tial rights,” and (4) that “seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.” United
States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).

[13] Hinkson’s contention lacks merit. The government’s
only references to Swisher’s military background in its clos-
ing argument were to point out that Swisher had told Hinkson
he was a combat veteran—not that Swisher necessarily was
one. Even if Swisher had never served in the military at all,
it was enough that the jury found Hinkson believed he did.
The government did not argue in closing that Swisher should
be deemed more credible or believable on account of his pur-
ported military heroism, or that he was more likely to be a
murderer-for-hire because of his military record. Accordingly,
the district court did not plainly err by failing to order a new
trial sua sponte after the government’s closing argument.

Conclusion

For the reasons discussed above, we affirm the district
court’s order denying Hinkson’s motion for a new trial based
on “newly discovered” evidence of the Miller and Woodring
affidavits because the district court (1) applied the correct
Harrington test, and (2) analyzed the Harrington factors in a
manner that was not illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.
We also hold the district court did not err by excluding the
Dowling letter and Swisher’s military file from evidentiary
admission under Rule 403. Finally, we hold the district court
did not plainly err by failing to order a new trial sua sponte
after the government’s closing argument.

AFFIRMED.
14988 UNITED STATES v. HINKSON
W. FLETCHER, Circuit Judge, dissenting, joined by
PREGERSON, WARDLAW, and PAEZ, Circuit Judges:

I dissent.

Following a two-week trial in federal district court in
Boise, Idaho, a jury convicted David Roland Hinkson of
soliciting the murder of three federal officials. The govern-
ment’s star witness supporting the conviction was Elven Joe
Swisher. Wearing a Purple Heart lapel pin on the witness
stand, Swisher testified that he had told Hinkson that he was
a Korean War combat veteran and that Hinkson, impressed by
Swisher’s military exploits, solicited him to kill the officials.

The government maintained in its opening statement to the
jury that Swisher was a Korean War combat veteran, and it
maintained throughout the trial that Hinkson’s understanding
of Swisher’s military exploits showed that he was serious in
his solicitations of Swisher. The government now concedes
that Swisher neither served in combat nor earned any personal
military commendations, and that Swisher presented a forged
military document in court and repeatedly lied under oath at
trial about his military record.

Hinkson makes three arguments on appeal. First, he argues
that the district court wrongly excluded documentary evi-
dence showing that Swisher presented a forged document and
lied on the stand. Second, he argues that the prosecutor
engaged in misconduct when he invoked Swisher’s military
service in his closing argument despite having substantial rea-
son to suspect that Swisher had lied about that service. Third,
he argues that the district court abused its discretion in deny-
ing his motion for a new trial based upon his discovery after
trial of new evidence conclusively establishing that Swisher
had lied on the stand.

I would reverse the district court based on Hinkson’s first
and third arguments. I would hold that the district court
 UNITED STATES v. HINKSON 14989
abused its discretion when it excluded documentary evidence
that would have contradicted Swisher’s claim on the stand
that he was a decorated combat veteran. I would also hold that
the district court abused its discretion when it denied Hink-
son’s motion for a new trial. I would not reach Hinkson’s sec-
ond argument.

I. Background

The majority opinion recites some of the background facts
relevant to Hinkson’s appeal. In my view, however, the
majority’s recitation is too truncated. I begin by providing the
background necessary to understand what went on during
Hinkson’s trial, and to understand why I believe the district
court abused its discretion.

In an indictment filed on September 21, 2004, a federal
grand jury in Idaho charged Hinkson with soliciting the mur-
ders of Assistant U.S. Attorney Nancy Cook, IRS Special
Agent Steven Hines, and U.S. District Court Judge Edward J.
Lodge. All three officials had been involved in the investiga-
tion and prosecution of Hinkson on tax and currency structur-
ing charges. Hinkson appealed his conviction on those
charges in a companion case. The three-judge panel of which
I was a member affirmed that conviction in a separate memo-
randum disposition.

The superseding indictment in the case now before us con-
tained eleven counts. Counts 1-6 charged that Hinkson, in
violation of 18 U.S.C. § 373, sought to persuade an acquaint-
ance named James Harding to murder Cook, Hines, and
Lodge, first in January 2003 (Counts 1-3) and again in March
2003 (Counts 4-6). Counts 7-9 charged that in December
2002 or January 2003, Hinkson, again in violation of § 373,
sought to persuade Swisher to murder Cook, Hines, and
Lodge. Finally, Counts 10 and 11 charged that Hinkson, in
violation of 18 U.S.C. § 115, personally threatened to kill the
children of Cook and Hines.
14990 UNITED STATES v. HINKSON
Hinkson was convicted on only the Swisher-related counts,
Counts 7-9. The jury acquitted Hinkson on Counts 1-3, 10,
and 11, and deadlocked on Counts 4-6. This appeal involves
only the Swisher-related counts.

At several points during Hinkson’s trial, the prosecutor
emphasized Swisher’s military background, and Hinkson’s
understanding of that background, in an effort to show the
seriousness of Hinkson’s solicitations. In his opening state-
ment to the jury on January 11, 2005, the prosecutor stated
affirmatively that Swisher “was a Marine, a Combat Veteran
from Korea during the Korean conflict. He was not adverse
to this kind of violent, dangerous activity; but he wanted no
part of murdering federal officials.” However, during direct
examination of Swisher three days later on January 14, the
prosecutor did not ask Swisher whether he was, in fact, a
Korean War combat veteran. Somewhat oddly, given his affir-
mative statement to the jury only three days earlier, the prose-
cutor asked Swisher only what he had told Hinkson about his
military experience in Korea.

Swisher came to the witness stand wearing a replica of a
Purple Heart on his lapel. A Purple Heart is an award given
to members of the United States military who are wounded in
combat. Swisher testified that he first became acquainted with
Hinkson in 2000. According to Swisher, he had done some
consulting work for Hinkson’s company, WaterOz, and the
two men had developed a friendship. Swisher testified that he
had served in the Marine Corps. In response to the prosecu-
tor’s questions, he testified further that he discussed his mili-
tary exploits with Hinkson on several occasions and told
Hinkson that he had been in combat in Korea as a Marine.
According to Swisher, Hinkson had asked whether he had
ever killed anyone, to which Swisher said he had responded,
“Too many.”

Swisher testified that on various occasions in 2001 and
early 2002, he and Hinkson discussed Hinkson’s legal prob-
 UNITED STATES v. HINKSON 14991
lems, particularly a civil suit brought against Hinkson by a
former WaterOz employee. Swisher testified that shortly after
April 2002, Hinkson expressed “considerable” anger toward
the employee’s lawyer, Dennis Albers, and spoke in graphic
detail about wanting to see Albers and his family “tortured
and killed.” Swisher testified that Hinkson offered him
“$10,000 a head to do it,” but Swisher “told [Hinkson] he was
out of his mind and he needed to knock that kind of BS off.”

Swisher testified that in July or August of 2002, Hinkson
began to focus on his problems with federal officials. Accord-
ing to Swisher, Hinkson stated that Cook and Hines “had been
harassing him a great deal,” “abused the judicial system,”
“cost him a lot of money,” and “didn’t deserve to live.”
Swisher testified that Hinkson asked him if he “remembered
the offer he made regarding Mr. Albers and his family” and
“said he wanted that done, basically, with Ms. Cook and her
family and Mr. Hines and his family.” Swisher testified that
Hinkson told him, “I know you’re used to it. I mean, you have
killed people [while serving in the military].” Swisher testi-
fied that he replied that he would report Hinkson to the
authorities if Hinkson “continue[d] talking that way.”

Swisher testifed that after Hinkson was arrested on tax
charges in November 2002, he had further conversations with
Hinkson. According to Swisher, Hinkson “was extremely hos-
tile to all of the people who had been involved in that arrest.”
In January 2003, Hinkson “went through the names of the
people that had offended him, and added a federal judge by
the name of Lodge to that list.” Swisher testified that Hinkson
then offered him “[a]t least $10,000 a head” to have “them all
treated the way that the initial offer regarding Albers and his
family had been handled” — that is, “[t]ortured and killed.”
Swisher testified that Hinkson spoke in a “pleading fashion”
about how “he just had to have this done.” Swisher replied
that he “never wanted to hear that again.” After the January
2003 exchange, the two men had a serious falling-out, eventu-
ally resulting in a lawsuit and a nasty feud. Swisher testified
14992 UNITED STATES v. HINKSON
that sometime after April 2003 he reported Hinkson’s solicita-
tions to a local Idaho prosecutor. At time of his testimony at
Hinkson’s trial in January 2005, Swisher was a bitter enemy.

On cross examination, defense counsel initially did not
inquire into Swisher’s military background. Instead, counsel
sought to discredit Swisher by identifying inconsistencies in
his testimony and by emphasizing the ongoing feud between
Swisher and Hinkson. However, after having indicated that he
had no further questions for Swisher, counsel asked to
approach the bench. At the sidebar, he told the court, “For
quite some time, [the defense has] been trying to dig into
[Swisher’s] military history.” Counsel explained that,
“[b]ecause of his age and because of the time of the war, we
don’t believe he was in the war. We also don’t believe that he
got a Purple Heart or was in combat.” Counsel then told the
court that he had just been “handed a letter from the National
Personnel Records Center indicating that . . . the records fail
to show that [Swisher] ever was recommended for or awarded
any person[al] decorations.” Defense counsel noted for the
record that Swisher was “wearing a Purple Heart on the wit-
ness stand, in the presence of the jury.”

Still at the sidebar, the prosecutor responded that he never
asked Swisher about “winning medals or combat” and had
merely asked about “a conversation that [Swisher] had with
Mr. Hinkson and what Mr. Hinkson asked him about.” The
prosecutor did not mention that three days earlier, in his open-
ing statement to the jury, he had affirmatively stated that
Swisher was a combat veteran from the Korean War. The
prosecutor also stated at the sidebar, “For the record, he has
a little — I don’t know — you know, something stuck in his
lapel. If somebody knows what that is, fine. No one has said
what it is.”

The court permitted the defense to reopen its cross exami-
nation of Swisher in order to ask about Swisher’s lapel pin
and about his service during the Korean War. In response to
 UNITED STATES v. HINKSON 14993
defense counsel’s questions, Swisher testified that he was
wearing “a Purple Heart Medal” that had been awarded to him
by the U.S. government. He then explained that he had served
in combat “[n]ot in the Korean War but following the Korean
War.” He said, “I was part of a special expedition, Marine
Corps Expeditionary Unit that was engaged in combat after
the Armistice, in an attempt to free POWs still in secret prison
camps in North Korea. And that information still remains
classified, so I’m not sure how much more I can say on that.”

Over the prosecutor’s objection, defense counsel then
showed Swisher the just-received letter from the National Per-
sonnel Records Center. The letter was dated the day of the
cross examination and had been faxed to defense counsel’s
office at 2:34 p.m. that afternoon. The letter was signed by
Archives Technician Bruce R. Tolbert. The letter (hereinafter
the “Tolbert letter”) stated:

[A] U.S. Marine Corps record was located on file at
this Center for Mr. Swisher based on the information
provided in your request. The USMC record shows
Mr. Swisher served on active duty in the USMC
from August 4, 1954 to his release from active duty
on August 3, 1957. He was subsequently discharged
from the USMC reserves on August 3, 1962. In addi-
tion, Mr. Swisher’s Marine Corps record has been
carefully examined by the Military Awards Branch
of the office of the Commandant of the Marine
Corps, and that office has stated that his record fails
to show that he was ever recommended for, or
awarded any personal decorations.

Defense counsel asked Swisher whether the letter “might
refresh [his] recollection as to whether or not the Government
issued [him] a Purple Heart.”

After Swisher reviewed the letter, the following exchange
took place:
14994 UNITED STATES v. HINKSON
Q [by defense counsel]: Now, sir, when you are
awarded a Purple Heart, are you not given a docu-
ment reflecting your entitlement to that Purple
Heart?

A [by Swisher]: Commonly.

Q: Were you given such a document?

A: Yes.

Q: Where is that document?

A: In my pocket.

Q: May I see it, please?

A: I have a replacement DD-214, if the court will
permit me to —

THE COURT: Let me take a look at it, first.

THE WITNESS: It is certified. We had to go clear
to Headquarters of the Marine Corps and all over to
get it. Because of the classifications, my record,
along with the other survivors of that Mission, had
been pretty much purged.

THE COURT: Ms. Longstreet, would you tender
that to both counsel, please?

[THE PROSECUTOR]: I have a copy, Your Honor.

THE COURT: Just hang on to it.

[DEFENSE COUNSEL]: What was that?

[THE PROSECUTOR]: I have a copy.
 UNITED STATES v. HINKSON 14995
[DEFENSE COUNSEL]: May we approach, Your
Honor?

At sidebar, out of the hearing of the jury, the exchange con-
tinued:

[DEFENSE COUNSEL]: I am going to — appar-
ently, counsel for the government knew about the
validity of the Purple Heart. He just said he has a
copy of this.

THE COURT: Have you seen this document?

[THE PROSECUTOR]: He showed me this docu-
ment this morning, about 9:00 o’clock.

THE COURT: Do you have a copy of it?

[THE PROSECUTOR]: I have a copy of it.

[DEFENSE COUNSEL]: Why didn’t you tell us?

[THE PROSECUTOR]: Why should I?

Swisher had pulled from his pocket a single sheet of paper,
which was a photocopy of a document purporting to be a
Defense Department Form 214, described by Swisher in his
testimony as a “replacement DD-214.” In box 32, near the
bottom of the document, was typewritten: “This document
replaces the previously issued transfer document of 8-3-57.
Changes and additions have been verified by Command. The
original of this DD-214 has been forwarded to headquarters
MC (10-15-57) . . . Entitled to wear Marine Corps Expedi-
tionary Medal.” Near the middle of the document, in box 26,
was typewritten: “SILVER STAR, NAVY AND MARINE
CORPS MEDAL W/ GOLD STAR, PURPLE HEART,
NAVY AND MARINE CORPS COMMENDATION
MEDAL W/ BRONZE ‘V’.” In box 27, immediately below,
14996 UNITED STATES v. HINKSON
was typewritten: “Multiple shrapnel and gunshot — Septem-
ber 1955, Korea.” The document bore the signature “W. J.
WOODRING, Jr., Capt., USMC.”

On the same page, below the photocopy of the purported
Form DD-214, was written: “Filed and recorded at the request
of Joe Swisher[.] At 2:40 o’clock p.m. this 2nd day of Febru-
ary 2004[.] ROSE E. GEHRING[,] Ex-Officio Auditor and
Recorder Idaho County, Idaho[.] By Dana Stroop[,] Deputy[.]
Fee $0[,] 1 pg.” (Underlining indicates handwriting; italics
indicates stamp; brackets indicate material added by me.)

The court excused the jury, and the conversation continued.
The court asked the prosecutor to confirm that he had seen the
document that morning at 9:00 a.m. The prosecutor replied:

[Swisher] showed it to me at 9:00 a.m. this morn-
ing because I had asked — he had mentioned Korea,
serving in Korea.

I said, “Wasn’t the Armistice in ‘52?”

He said, “But there was still, you know, combat;
and it continues to this day,” which I happen to
know to be true. There is combat to this day in
Korea.

Defense counsel requested a mistrial based on the prosecu-
tor’s failure to inform the defense that Swisher had given the
government a document that appeared to contradict the letter
from the National Personnel Records Center. The prosecutor
responded that defense counsel “should have listened to me
when I said, ‘Don’t go there.’ ” He elaborated:

I didn’t go into anything about his combat or his
medals or anything else on my direct. He chose to go
down this path, even when I objected to it.
 UNITED STATES v. HINKSON 14997
I didn’t draw attention to the little pin in Mr.
Swisher’s lapel. Lots of people wear them. They
could be anything. He wanted to make an issue of it.

...

Counsel whipped out his document that he
received minutes ago. I believe he probably didn’t
have enough time to read it and digest it and tried to
use that to impeach the witness. That was improper.

...

It was a grandstand play in front of the jury that
didn’t — that wasn’t so grand, and he got caught on
it. That’s where we are.

There is nothing the Government did that caused
him to go in the area he did. We tried to avoid going
into this area.

I don’t think — you know, I barely had time to
look at this myself. It refers to other — that this
replaces some document previously issued. I don’t
know what that document is, and it just led me to
conclude that this is not a proper area to go into.

The court denied the motion for a mistrial, stating:

The court finds as a matter of fact that if [Swish-
er’s document] is a copy of a genuine military record
— and at this point, I don’t have any way to deter-
mine that; but it appears to be genuine, at least in
appearance.

It indicates consistently with how the witness has
testified; that he did, in fact, receive multiple shrap-
nel and gunshot wounds in September 1955 in
14998 UNITED STATES v. HINKSON
Korea; and that he was awarded commendations and
medals, including the Purple Heart.

The court stated that “until the receipt of the [Tolbert] letter,”
the government “had no reason to believe that [Swisher’s doc-
ument] was discloseable under Brady or Giglio because it was
not impeaching.”

The court offered to “instruct the jury to strike that portion
of the cross examination of Mr. Swisher that relates to the
Purple Heart. Just tell them to completely disregard all testi-
mony about the Purple Heart.” Defense counsel agreed. When
the jury returned, the court said:

Ladies and gentlemen, it’s been a long day; and I
now realize that I made a mistake in allowing the
questioning with regard to the Purple Heart Medal.

So I am going to instruct you to disregard com-
pletely all of Mr. Swisher’s testimony with regard to
that military commendation.

You are certainly entitled to consider all of the
rest of his testimony. Just everything from where I
asked [defense counsel] to re-open, please strike that
from your minds; and you are not to consider it as
evidence in the case.

The contretemps over the Tolbert letter and the “replace-
ment DD-214” took place on Friday afternoon, January 14.
The following Monday, January 17, was a federal holiday.
When the trial resumed on Tuesday, the prosecution rested,
and the defense called its first witnesses.

The next day, Wednesday, January 19, defense counsel told
the court, outside the presence of the jury, that he had
obtained information indicating that the document Swisher
had taken from his pocket while on the witness stand — the
 UNITED STATES v. HINKSON 14999
so-called “replacement DD-214” — was fraudulent. Defense
counsel had obtained a photocopy of a different Form DD-
214, also recorded by Swisher at the Idaho County Auditor
and Recorder’s office. However, this Form DD-214 had been
recorded in February 2001 rather than February 2004. The
earlier-recorded Form DD-214 was identical to the later-
recorded form, with the notable difference that none of the
medals, commendations, or wounds was mentioned in the
earlier-recorded form. “N/A” was written in box 26 where the
Silver Star, Purple Heart, and other awards were specified in
the later-recorded form. “N/A” was also written in boxes 27
and 32 where, in the later-recorded form, “Multiple shrapnel
and gunshot — September 1955, Korea” and “Entitled to
wear Marine Corps Expeditionary Medal” were written.

Defense counsel told the court:

[T]he indications from the people we have talked to
[at the National Personnel Records Center] is that
they stand by the [Tolbert] letter of January 14th and
that they will provide us with a certified copy of his
DD-214 that would not support [Swisher’s docu-
ment]; that [Swisher’s document] is a forgery; and
that he was never given any of the awards or benefits
as indicated on [Swisher’s document]; and that, fur-
ther, if any change had been made in the discharge
document, it would have been done on a form DD-
215 [rather than a form DD-214] . . . .

Counsel further stated that he believed Swisher had not been
wounded in combat but, in fact, had been “injured while in
the Service in a car accident in Bremerton, Washington.” He
stated that the National Personnel Records Center would send
Swisher’s full military record to the court, but only in
response to a subpoena signed by the court. The court signed
a subpoena late that day.

Two days later, on Friday morning, January 21, again out-
side the presence of the jury, the prosecutor provided a photo-
15000 UNITED STATES v. HINKSON
copy of a letter to the court “for in-camera review.” The letter
was from Lieutenant Colonel K.G. Dowling, Assistant Head
of the Military Awards Branch of the Marine Corps, to Ben
Keeley of the Idaho Division of Veterans Services. The letter
(the “Dowling letter”) was dated December 30, 2004. What
appeared to be a “received” stamp was dated January 10,
2005. At the top of the Dowling letter, now in the possession
of the government, was a fax line indicating that it had been
faxed from the “ID. STATE VETERANS SVS” in Lewiston,
Idaho, where Keeley’s office was located, on Thursday, Janu-
ary 13, 2005. January 13 was the day before Swisher took the
stand to testify against Hinkson.

The prosecution has given various answers about when it
received the Dowling letter or learned of its existence. On the
morning of January 21, when he gave the letter to the district
court, the prosecutor stated that he “believe[d] Agent Long
got [the letter] the day before by going to the Veterans’
Administration.” Later, in its opposition to Hinkson’s motion
for a new trial, the prosecution stated in its brief that the letter
was “obtained by federal investigators a few days earlier from
the Boise Veteran’s Affairs office.” In its brief to this court,
the prosecution stated that “government investigators obtained
[the letter] on or about January 20.” Finally, in response to the
queries during oral argument before the three-judge panel, the
government’s attorney sent a post-argument letter stating that
he had “been informed that investigating agents on the prose-
cution team first saw and learned of the Dowling letter on
January 18 or 19, at the Boise, Idaho office of the Department
of Veteran’s Affairs.” There is no indication in the record that
defense counsel had any idea of the existence of the Dowling
letter until the government provided it to the court on January
21.

The Dowling letter indicated that Keeley earlier had con-
tacted the Personnel Management Support Branch of Marine
Corps Headquarters, after Swisher attempted to use his “re-
placement DD-214” to obtain veterans’ benefits from the
 UNITED STATES v. HINKSON 15001
Idaho Division of Veterans Services. Dowling wrote back to
Keeley:

We have thoroughly reviewed the copy of the Cer-
tificate of Release or Discharge from Active Duty
(DD Form 214) and supporting letter which you sub-
mitted on behalf of Mr. Swisher with your request.
The documents you provided do not exist in Mr.
Swisher’s official file. The official DD Form 214 in
his record of the same date was signed by Mr.
Swisher and does not contain any awards informa-
tion in box 26, and contains no “wounds” informa-
tion in box 27. A copy of his official DD 214 is
provided as the enclosure. Given this information we
have reason to believe that the documents you sub-
mitted are not authentic.

Specifically, the DD 214 you submitted on behalf
of Mr. Swisher indicates that Mr. Swisher is entitled
to the Silver Star Medal, Navy and Marine Corps
Medal (Gold Star in lieu of the Second Award), Pur-
ple Heart, and Navy and Marine Corps Commenda-
tion Medal with Combat “V.” However, our review
of his official military records, those of this head-
quarters, and the Navy Department Board of Decora-
tions and Medals failed to reveal any information
that would indicate that he was ever recommended
for, or awarded any personal decoration.

Additionally, the Navy and Marine Corps Com-
mendation Medal, which is listed in block 26 of the
DD 214 that you submitted did not exist at the time
of Mr. Swisher’s transfer to the Marine Corps
Reserve in 1957. On March 22, 1950, a Metal Pen-
dant was authorized for issue in connection with a
Letter of Commendation and commendation ribbon.
On September 21, 1960, the Secretary of the Navy
changed the name of the award to the Navy Com-
15002 UNITED STATES v. HINKSON
mendation Medal. On August 19, 1994, the Secre-
tary of the Navy renamed the medal as the Navy and
Marine Corps Commendation Medal. It is impossi-
ble that the approving officer could have signed an
official document in 1957 indicating Mr. Swisher’s
entitlement to a personal decoration which did not
exist in its present form until 1994.

Further review of Mr. Swisher’s records reveals
that he is not entitled to any service awards, includ-
ing the Marine Corps Expeditionary Medal, for his
service in the U.S. Marine Corps. Mr. Swisher’s offi-
cial military records failed to indicate any informa-
tion that he served in Korea during the period when
any awards were authorized. His records show that
he was stationed at Camp Fuji and Yokosuka, Japan
from March 4, 1955 to May 6, 1956.

There is no information in his military record or
his medical record to substantiate his entitlement to
a Purple Heart medal. His medical records show that
on February 10, 1957, he was involved in a private
vehicle accident near Port Townsend, Washington.

Later on Friday, January 21, the court received Swisher’s
official military file — “a half-inch-thick stack of materials”
— from the National Personnel Records Center in response to
its subpoena. The official military file contained a copy of the
Dowling letter. The government undoubtedly anticipated that
the file would arrive on or about that day, and that when it
arrived it would contain the Dowling letter that the govern-
ment had presented to the court that morning. The presence
of the Dowling letter in the file was entirely predictable, for
it stated in its last paragraph: “[Mr. Swisher’s] records will be
returned to the National Personnel Records Center, and a copy
of this letter will be filed in Mr. Swisher’s official military
records.”
 UNITED STATES v. HINKSON 15003
Swisher’s official military file also contained a copy of
Swisher’s original Form DD-214. This Form DD-214
matched precisely the Form DD-214 that Swisher registered
in the Idaho County Recorder’s office in February 2001. This
Form DD-214 showed that Swisher had never received any
military awards.

Swisher’s official file also contained the two documents
that Keeley had sent to Dowling for evaluation. One of the
documents was a copy of the “replacement DD-214” purport-
edly signed by Capt. W. J. Woodring, Jr. that Swisher had
pulled out of his pocket on the witness stand. The other docu-
ment was a letter purportedly written to Swisher by Woodring
on October 16, 1957. That letter stated:

I am pleased to inform you that your combat
action, awards and citations have been verified. A
copy of a replacement DD 214 transfer document,
which more accurately reflects your military service,
is attached to this correspondence. The original has
been forwarded to the Commandant of the Marine
Corps at Headquarters Marine Corps in Washington,
D.C.

...

When you recover from surgery, both Major Mor-
gan and I encourage you to enter a R.O.T.C. pro-
gram at the college of your choice. Glad we were
able to help.

As indicated above, the Dowling letter stated that “we have
reason to believe” that both of these documents “are not
authentic.”

Outside the presence of the jury, the court stated — some-
what surprisingly in view of the contents of the file — that a
“quick review of the file indicates that Mr. Swisher was, in
15004 UNITED STATES v. HINKSON
fact, involved in top secret activities; and it appears that he
was awarded the medals that he claims that he was awarded.
. . . [The documents] do not appear to be impeaching.” The
court told counsel that it would conduct a more thorough
review of the file over the weekend.

When the trial reconvened on Monday, January 24, the
court discussed Swisher’s official military file with counsel
off the record. Then, on the record and without the jury pres-
ent, the court stated its conclusions. The court stated that the
file had been sent to the court by the National Personnel
Records Center in response to the court’s subpoena; that the
Dowling letter in the file matched the letter provided to the
court by the prosecution on Friday; and that the Dowling let-
ter concluded that the “replacement DD-214” and the “sup-
porting letter” purportedly signed by Woodring were “not
authentic.” But the court stated that it found the file “very dif-
ficult to decipher.” The court stated:

It is not at all clear to me what the truth of the
matter is; and I suspect it has something to do with
the fact that we are dealing with events that occurred
fifty years ago and that, at the time that they
occurred, were involving top secret military activi-
ties.

So I wanted you to look at it because, obviously,
you have to make your own judgment as to what you
think the significance of it is.

The court stated that “the problem the court had in reviewing
the documents in camera is that the documents we have,
themselves, are neither self-authenticating nor self-
explanatory.”

The court concluded:
 UNITED STATES v. HINKSON 15005
And I do not want to turn this issue into a periph-
eral mini-trial under Rule 608(b) of the Rules of Evi-
dence.

...

So the state of the record at this point before the
jury is that the jury is not to consider Mr. Swisher’s
battlefield commendations, or lack thereof, although
they can certainly assess his credibility with regard
to the extensive cross-examination that was con-
ducted by the defense and see how it jives with all
of the other evidence in the case.

Defense counsel replied that, in light of the information now
before the court, the defense deserved an opportunity to ques-
tion Swisher further about his “replacement DD-214” and his
military experience. Defense counsel reiterated that Swisher
had worn a Purple Heart on the witness stand.
UNITED STATES v. HINKSON 15007
Volume 2 of 2
15008 UNITED STATES v. HINKSON
The prosecutor reminded the court that during his direct
examination of Swisher he had not attempted to elicit “for the
truth of the matter that Swisher was, indeed, in combat.”
Instead, he said, the jury heard about “a conversation . . .
between Mr. Swisher and Mr. Hinkson regarding Hinkson
asking him, ‘Were you ever in combat?’ ” The prosecutor also
addressed “what we call a Replica Purple Heart. It’s not a real
Purple Heart at all.” The basis of the prosecutor’s conclusion
that the lapel pin Swisher wore on the witness stand was “not
a real Purple Heart at all” is not clear from the record. The
prosecutor maintained to the court that, in any event, whether
Swisher was “entitled to wear a Replica Purple Heart or any
other kind of little medal on his lapel” was a “collateral issue
that arose only on cross-examination.”

Defense counsel told the court that he was “concerned
about when the Government got [the Dowling letter],” which
the prosecutor had provided to the court on Friday morning,
January 21. The prosecutor responded, “[W]e got it — I
believe Agent Long got it the day before by going to the Vet-
erans’ Administration.” The prosecutor added that the Dow-
ling letter, standing alone, did not prove that Swisher’s
“replacement DD 214” was fraudulent. He said:

What they would really have to prove, if this were
to be resolved, is they would have to prove that the
substitute DD-214 signed by Captain Woodring, in,
I believe, October ‘57 — . . . that the signature of
Captain Woodring was forged; and I would suggest
that probably would resolve whether it’s correct or
not.

How you would prove that something that was
signed in 1957 — I doubt very much Mr. Woodring
is still with us, but I don’t know.

The court agreed that it “was not at all convinced yet” that
“the document that Mr. Swisher pulled out of his pocket [was]
 UNITED STATES v. HINKSON 15009
false or not” because Swisher’s military record was not “self-
explanatory.” The court stated, “I have no idea, if somebody
is involved in secret military operations, whether or not their
personnel file . . . would ever reflect those missions.” The
court stated that it needed to hear from “a records custodian
from the National Personnel Records Center or someone else
who is more familiar with military records and decorations
than any of us.”

The court ruled that the defense would be permitted to
recall Swisher for further cross examination but would not be
permitted to introduce into evidence any of the documents
bearing on his military experience. That is, the court ruled that
the defense would not be permitted to introduce the Tolbert
letter, the Dowling letter, or anything else contained in Swish-
er’s official military file that had been sent in response to the
court’s subpoena. The court stated:

The documents which form the basis for the doubt
cast on Swisher’s military record and [his] entitle-
ment to wear the Purple Heart are extrinsic evidence
probative of a specific incident of untruthfulness.

The court therefore holds that the admission of
these documents is barred by Rule 608(b).

...

Furthermore, the court holds that admission of the
actual documents of impeachment is barred under
Rule 403.

First, the documents have not yet been officially
authenticated; and this process could waste consider-
able time on tangential issues only indirectly related
to the issues to be resolved at trial and, perhaps, sub-
mitted to the jury as early as tomorrow.
15010 UNITED STATES v. HINKSON
Second: The documents themselves are not
entirely conclusive. They are certainly not self-
authenticating. The Government would have to be
allowed to introduce conflicting documents or testi-
mony of military officers to explain them.

The proffered documents state, in summation, that
Swisher’s record does not indicate that he earned any
service record or service medals during his military
duty; however, other documents available to the
court suggest that Swisher might, indeed, have
earned such medals.

...

The defense may reference these documents dur-
ing its cross-examination . . . .

In sum, the court finds that the questionability of
Swisher’s character for truthfulness may be amply
demonstrated to the jury by re-opening cross-
examination and by allowing the defense to refer-
ence the impeaching documents during the cross-
examination.

....

I will let the defense decide which way they want
to go; either leave it alone or call him.

The next morning, Hinkson’s counsel informed the court that,
given his inability to introduce into evidence the military doc-
uments showing that Swisher had lied on the stand about
receiving the Purple Heart and other decorations, he had
decided not to recall Swisher.

The government made several references to Swisher’s mili-
tary experience during closing arguments to the jury. The
 UNITED STATES v. HINKSON 15011
prosecutor began by explaining the significance of Swisher’s
testimony:

The judge will further instruct you that the fourth
sort of circumstance that you can consider to be
strongly corroborative of Mr. Hinkson’s intent to
solicit murder would be the fact that an accused
believed or was aware that the person solicited had
previously committed similar offenses.

Mr. Swisher’s testimony was powerful. He talked
about how Mr. Hinkson understood that Mr. Swisher
had been in the military and had killed a lot of peo-
ple. He was very impressed by that.

In fact, according to Mr. Swisher, Mr. Hinkson
asked, “Have you killed somebody?”

And when Mr. Swisher says, “Yes,” Mr. Hink-
son’s response is not, “Wow, that must be terrible,”
but it is, “How many people have you killed?” He
was very impressed by that.

The prosecutor stated that “[a]nother reason Mr. Hinkson
liked Joe Swisher and they were friends is Mr. Swisher had
been in the Marine Corps. Mr. Hinkson had served in the
Navy. Joe Swisher told you they talked about their experi-
ences in the Service.” The prosecutor stated later, “Mr.
Swisher, I suggest to you a reasonable juror could find, told
the truth about the solicitation.” At the end of the govern-
ment’s closing, the prosecutor stated that Hinkson “under-
stood Mr. Swisher had a military record and that he had
served in combat and killed people. It’s the kind of person he
thinks will do such a thing.”

On January 27, 2005, after two days of deliberations, the
jury returned a guilty verdict on the Swisher-related solicita-
tion counts. It acquitted or hung on all other counts.
15012 UNITED STATES v. HINKSON
On March 3, 2005, just over a month later, defense counsel
moved for a new trial under Federal Rule of Criminal Proce-
dure 33. The motion relied on, inter alia, “newly discovered
evidence” that Swisher had lied under oath on the witness
stand and had produced a forged document in court. That evi-
dence consisted of a newly obtained affidavit from Chief
Warrant Officer W.E. Miller, the Marine Corps liaison to the
National Personnel Records Center, and a newly obtained
affidavit from now-retired Colonel W.J. Woodring, Jr., the
Marine Corps officer whose signature appeared on Swisher’s
original Form DD-214, on the purported “replacement DD-
214,” and on the purported “supporting letter” for the “re-
placement DD-214.” These documents were precisely what
the district court and the government had said were needed to
prove that Swisher had lied on the stand.

Chief Warrant Officer Miller stated, in an affidavit dated
February 24, 2005, “As part of my duties . . . I have access
to the official United States military records of former mem-
bers of the USMC which are deposited in the N[ational] P[er-
sonnel] R[ecords] C[enter] and, among my other
responsibilities, I evaluate the authenticity of information,
records and documents affecting individual Defense Depart-
ment transfer documents including DD Forms 214.”

Miller concluded that Swisher had never been awarded a
Purple Heart. He wrote that his reasons included the follow-
ing:

A. Swisher’s medical records show that he did not
sustain any combat wounds, rather he was
involved in a private motor vehicle accident
near Port Townsend, Washington on 10 Febru-
ary 1957 and was treated at the hospital at
Bremerton, Washington. . . .

B. The DD Form 214 signed by Swisher on 3
August 1957 . . . which is a part of his official
 UNITED STATES v. HINKSON 15013
U.S. military record contains a specification that
he was not entitled to VA benefits[.]

C. Swisher’s official U.S. military record indicates
that he was subject to an Article 115 disciplin-
ary action resulting in demotion from Corporal
to Private First Class on 28 Feb. 56 which
involved disobedience to military law during his
active tour of duty[.]

D. Swisher’s official U.S. military record shows
that rather than being assigned to missions in
post-War Korea (as claimed by Swisher) he was
stationed at Camp Fuji and Yokosuka, Japan
from 4 March to 6 May 1956 with no support-
ing documentation or information to indicate
that he participated in any classified Marine
Corps expeditionary operation that performed
incursions into Korea during his tour of active
duty. . . .

E. Swisher asserts that the expeditionary missions
he was involved with in Korea were classified
as “Top Secret” operations. The U.S. Marine
Corps did not perform any classified operations
or “Top Secret” operations during Swisher’s
tour of duty.

Miller also concluded that the “replacement DD-214” that
Swisher had presented in court was not an “authentic docu-
ment.” (Miller referred to this document as “Exhibit C.”) In
addition to the factors enumerated in support of his conclu-
sion that Swisher was not entitled to a Purple Heart, Miller
wrote:

A. Military Rules and Procedures require that a
DD Form 214 can only be issued and retyped at
the Headquarters of the USMC and signed by a
15014 UNITED STATES v. HINKSON
designee of the Commandant of the Marine
Corps who offices at Headquarters. Capt.
Woodring never held such designation.

B. Exhibit C, in box 32 provides: “[t]his document
replaces the previously issued transfer docu-
ment of 8-3-57.” There are no additional records
in Swisher’s file that support the claim that
Swisher’s original DD Form 214 was replaced;

C. Exhibit C, box 32, provides: “[c]hanges and
additions have been verified by Command.”
Changes or additions in Swisher’s original DD
Form 214 if truly “verified by Command“ would
have resulted in verification documents becom-
ing a part of Swisher’s official U.S. military
record . . . .

...

G. Military policy and procedure which has been
in effect since before the time of Swisher’s
transfer from active duty to the USMC Reserves
on 3 Aug. 57 would have directed the issuance
of a DD Form 215 first, before any replacement
version of Swisher’s original DD Form 214
would have been issued . . . .

H. There is no record of a DD Form 215 ever hav-
ing been issued for Swisher.

(Emphasis and brackets in original.)

Now-retired (and, to the government’s suprise, still living)
Marine Corps Colonel W.J. Woodring, Jr., in an affidavit
dated February 27, 2005, stated:

2. I spent 35 years 6 months in the United States
Marine Corps. I was a Captain in the Marine
 UNITED STATES v. HINKSON 15015
Corps in 1957. I am now retired and I reside in
Southern California.

3. I have reviewed Exhibit A attached which pur-
ports to be a copy of a letter addressed to Pfc
Elven Joe Swisher (Swisher) dated 16 Oct 1957.
I did not write or cause Exhibit A to be written.
Below the words Semper Fidelis, there is hand-
writing that purports to be my signature. I did
not sign Exhibit A. What looks like my signa-
ture on Exhibit A is actually the image of my
signature that has somehow been superimposed
upon the letter. Exhibit A is a forgery.

4. I have reviewed Exhibit B attached which pur-
ports to be a copy of a “Replacement DD 214”
for Swisher. In box 34b there is handwriting that
purports to be my signature. I did not sign
Exhibit B. What looks like my signature on
Exhibit B is actually the image of my signature
that has somehow been superimposed upon the
letter. Exhibit B is a forgery.

On April 22, 2005, the court denied Hinkson’s motion for
a new trial. Applying the criteria set forth in United States v.
Waggoner, 339 F.3d 915, 919 (9th Cir. 2003), the court gave
several reasons for declining to grant a new trial on the basis
of Hinkson’s newly discovered evidence. First, the court con-
cluded that Hinkson had not been diligent in seeking the evi-
dence he now submitted to the court. Second, the court
concluded that the evidence was not “newly discovered”
because “[t]he substance of both proffered documents is not
new and is generally cumulative of previously available infor-
mation.” Finally, “[m]ost importantly,” the court concluded
that “the proffered ‘new’ evidence is not material to the issue
at trial, nor would a new trial probably result in an acquittal,
because the evidence is inadmissible.” The court explained
that it had “previously held on the record at trial . . . and now
15016 UNITED STATES v. HINKSON
reiterates, admission of the proffered documents and testi-
mony is still prohibited by Fed. R. Evid. 608(b), which bars
introducing extrinsic evidence of the witness’s past conduct.”

Hinkson was sentenced on June 3, 2005, for his solicitation
convictions as well as for his tax evasion and currency struc-
turing convictions. He received a total of 43 years in prison:
ten years on the tax and structuring charges, ten years on each
of the three solicitation charges, and an additional three years
for having made the solicitations while on pretrial release in
the tax case.

II. Subsequent Indictment and Conviction of Swisher

On July 30, 2007, the government indicted Swisher for
knowingly wearing military decorations to which he was not
entitled, including the Purple Heart, in violation of 18 U.S.C.
§ 704(a); for willfully and knowingly making false represen-
tations about his military service in order to obtain benefits to
which he was not entitled, in violation of 18 U.S.C.
§ 1001(a)(2); and for presenting false testimony and a “forged
form DD-214” in order to obtain benefits to which he was not
entitled, in violation of 18 U.S.C. §§ 641 and 642. As the date
of the indictment makes clear, the government indicted
Swisher more than two years after the district court ruled on
Hinkson’s motion for a new trial. On April 11, 2008, Swisher
was convicted on all three counts of the indictment. Because
Swisher’s indictment and conviction did not occur until after
the district court ruled on Hinkson’s motion for a new trial,
the district court obviously could not have considered them in
reaching its decision.

III. Appeal

On appeal to this court, Hinkson challenges the denial of
his motion for a new trial on three grounds. First, Hinkson
argues that the district court erred in precluding him from
introducing into evidence the military documents that would
 UNITED STATES v. HINKSON 15017
have shown that Swisher lied about his Purple Heart, about
his other decorations, and about his forged “replacement DD-
214.” Second, Hinkson argues that the prosecution engaged in
misconduct by referring to Swisher’s military background
during its closing argument after it was clearly on notice of
the contents of Swisher’s official military file. Third, Hinkson
argues that he is entitled to a new trial based on the new evi-
dence presented in his post-trial motion under Rule 33. I
would reach only the first and third arguments. I agree with
both of those arguments and would reverse the district court
based on either of them.

A. Refusal to Admit Impeaching Military Documents into
Evidence

We review for abuse of discretion a district court’s eviden-
tiary rulings, including decisions to admit or exclude
impeachment evidence. United States v. Tran, 568 F.3d 1156,
1162 (9th Cir. 2009); United States v. Geston, 299 F.3d 1130,
1137 (9th Cir. 2002). We must then apply the harmless error
standard. We will reverse an evidentiary ruling for abuse of
discretion “only if such nonconstitutional error more likely
than not affected the verdict.” United States v. Edwards, 235
F.3d 1173, 1178-79 (9th Cir. 2000); see also Fed. R. Crim. P.
52(a) (“Harmless Error. Any error, defect, irregularity, or
variance that does not affect substantial rights must be disre-
garded.”).

Hinkson sought to introduce the Tolbert letter, the Dowling
letter, and the rest of Swisher’s official military file in order
to show that Swisher lied about receiving the Purple Heart
and his other claimed military decorations, and to show that
he had forged his so-called “replacement DD-214” that he had
brandished before the jury. The district court excluded this
evidence based on Federal Rules of Evidence 608(b) and 403.

Rule 608(b) provides:
15018 UNITED STATES v. HINKSON
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ char-
acter for truthfulness, other than conviction of crime
as provided in rule 609, may not be proved by
extrinsic evidence. They may, however, in the dis-
cretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the wit-
ness’ character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or
untruthfulness of another witness as to which charac-
ter the witness being cross-examined has testified.

The district court deemed the documents bearing on Swisher’s
military experience “extrinsic evidence probative of a specific
incident of untruthfulness” and therefore inadmissible under
Rule 608(b).

The district court erred as a matter of law in holding that
the Tolbert letter, the Dowling letter, and the other documents
in Swisher’s file could be excluded under Rule 608(b). The
2003 Advisory Committee Notes to Rule 608 make clear that
“the absolute prohibition on extrinsic evidence applies only
when the sole reason for proffering that evidence is to attack
or support the witness’ character for truthfulness.” Fed. R.
Evid. 608(b), advisory comm. notes (2003). Hinkson did not
seek to introduce those documents for the sole “purpose of
attacking . . . the witness’ character for truthfulness.” Rather,
Hinkson sought to introduce the documents for the specific
purpose of contradicting in-court testimony by Swisher. Such
evidence is governed by Rule 607, which “permits courts to
admit extrinsic evidence that specific testimony is false,
because contradicted by other evidence.” United States v.
Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999).

Swisher took the witness stand wearing a Purple Heart
lapel pin, thereby affirmatively stating that he had been
wounded in combat while serving in the United States armed
 UNITED STATES v. HINKSON 15019
forces. Rule 801(a) provides, “A ‘statement’ is . . . nonverbal
conduct of a person, if it is intended by the person as an asser-
tion.” Recall that in his opening statement to the jury three
days before, the prosecutor had described Swisher as “a Com-
bat Veteran from Korea during the Korean conflict [who] was
not adverse to . . . violent, dangerous activity.” Particularly
given the prosecutor’s statement, the jury could hardly avoid
understanding Swisher’s wearing of the Purple Heart as “non-
verbal conduct . . . intended . . . as an assertion” that he had
been wounded in military combat. The documents Hinkson
sought to introduce would have directly contradicted that
statement, and would have shown Swisher to be a liar.

The district court also erred by refusing to allow Hinkson
to introduce this extrinsic evidence to impeach Swisher based
on Rule 403. Rule 403 provides:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.

The district court abused its discretion by concluding that it
would be unduly time-consuming and confusing to the jury to
admit the official military documents showing that Swisher
lied about receiving a Purple Heart, and that, when chal-
lenged, he lied about having a so-called “replacement DD-
214.” Although some parts of Swisher’s military record may
have been difficult for a lay jury to understand, other parts
were easy to comprehend. For example, the Dowling letter
was clearly written and unambiguous. It stated simply and
directly that Swisher had not been in combat and had not been
awarded any medals. Other documents in Swisher’s official
military file — which had been sent to the court pursuant to
its subpoena and whose authenticity was not in doubt —
unambiguously showed that Swisher’s “replacement DD-214”
15020 UNITED STATES v. HINKSON
was a forgery. Given Swisher’s crucial role in the govern-
ment’s case against Hinkson, the time it would have taken to
admit this evidence could hardly have outweighed its proba-
tive value.

The district court’s refusal to allow Hinkson to admit this
documentary evidence was not a harmless error. Swisher was
the government’s principal witness on the only counts on
which Hinkson was convicted. The jury would have formed
a significantly different impression of Swisher’s credibility if
Hinkson had been permitted to introduce evidence that
Swisher lied about his military record on the stand. For the
reasons I describe in detail below, this would have called into
serious doubt all of Swisher’s testimony, including his state-
ments describing his interactions with Hinkson.

B. New Evidence Produced in Support of
Motion for New Trial

Hinkson’s motion for a new trial asserted that the Miller
and Woodring affidavits, newly obtained after trial, proved
conclusively that Swisher had presented false testimony and
had presented a forged document during trial. The govern-
ment no longer disputes that Swisher lied about his military
experience and presented a forged “replacement DD-214.” It
contends, however, that the newly obtained Miller and Wood-
ring affidavits do not warrant a new trial.

We review for abuse of discretion a district court’s denial
of a motion for a new trial based upon newly discovered evi-
dence. See, e.g., United States v. Sarno, 73 F.3d 1470, 1507
(9th Cir. 1995). A district court abuses its discretion when it
makes an error of law, when it rests its decision on clearly
erroneous findings of fact, or when we are left with “a definite
and firm conviction that the district court committed a clear
error of judgment.” Delay v. Gordon, 475 F.3d 1039, 1043
(9th Cir. 2007) (internal quotation marks omitted).
 UNITED STATES v. HINKSON 15021
Under United States v. Harrington, 410 F.3d 598 (9th Cir.
2005), a criminal defendant must satisfy a five-part test in
order to prevail on a motion for a new trial:

“(1) [T]he evidence must be newly discovered; (2)
the failure to discover the evidence sooner must not
be the result of a lack of diligence on the defendant’s
part; (3) the evidence must be material to the issues
at trial; (4) the evidence must be neither cumulative
nor merely impeaching; and (5) the evidence must
indicate that a new trial would probably result in
acquittal.”

Id. at 601 (quoting United States v. Kulczyk, 931 F.2d 542,
548 (9th Cir. 1991)). The district court applied this Harring-
ton test, citing Waggoner, 339 F.3d at 919.

What we today call the Harrington test is sometimes
referred to as the “Berry rule,” named for the nineteenth-
century case from which it derives. See 3 Charles Alan
Wright et al., Federal Practice and Procedure § 557, at 541
(3d ed. 2004) (citing Berry v. State, 10 Ga. 511, 527 (1851)).
Although we ordinarily state the test as comprising five
requirements, we have recognized that requirements (3), (4),
and (5) are duplicative. That is, newly discovered evidence is
“material” when the result of the newly discovered evidence
is that “a new trial would probably result in acquittal,” a con-
dition that is not usually met when the newly discovered evi-
dence is “cumulative [ ]or merely impeaching.” See, e.g.,
United States v. Krasny, 607 F.2d 840, 845 n.3 (9th Cir. 1979)
(noting that the materiality and probability requirements “are
really two means of measuring the same thing”); United
States v. Davila, 428 F.2d 465, 466 (9th Cir. 1970) (per
curiam) (noting that newly discovered impeachment evidence
supports a new trial if “it is likely that the jury would have
reached a different result” in light of the evidence); see also
Wright et al., supra, § 557, at 552.
15022 UNITED STATES v. HINKSON
The character of the defendant’s newly discovered evi-
dence determines how strictly we apply the Harrington proba-
bility requirement. Our usual rule is that newly discovered
evidence does not entitle a defendant to a new trial unless the
evidence indicates that it is more probable than not that the
new trial will result in acquittal. This rule applies to most
newly discovered evidence, including newly discovered evi-
dence tending to show that evidence presented at the defen-
dant’s trial was false. See Krasny, 607 F.2d at 842.1

I would conclude that Hinkson has satisfied all five parts of
the Harrington test. To my surprise, the majority concludes
that Hinkson has satisfied none of them.

1. Newly Discovered Evidence

Under the first part of the Harrington test, we must deter-
mine whether the evidence presented in support of the motion
for a new trial is “newly discovered.” Hinkson’s new trial
motion relied on two new pieces of evidence: (1) the affidavit
from Chief Warrant Officer Miller, the Marine Corps liaison
to the National Personnel Records Center; and (2) the affida-
vit from Colonel Woodring, the officer whose purported sig-
nature appeared on Swisher’s “replacement DD-214” and
“supporting letter.” It is undisputed that neither piece of evi-
dence was known to, or was in the possession of, the defense
until after Hinkson’s trial had concluded.

The majority concedes that both the Miller and Woodring
affidavits are “newly written” evidence, but it contends that
the affidavits “did not provide any new information that was
1
We have sometimes applied a less demanding standard for granting a
new trial where it is known conclusively at the time of the new trial
motion that the evidence presented at trial was false. See Hall v. Dir. of
Corr., 343 F.3d 976 (9th Cir. 2003); Killian v. Poole, 282 F.3d 1204 (9th
Cir. 2002); United States v. Young, 17 F.3d 1201 (9th Cir. 1994). Because
I would hold that Swisher is entitled to a new trial under the Harrington
test, it is unnecessary to apply this test.
 UNITED STATES v. HINKSON 15023
not already considered and rejected from evidentiary admis-
sion by the court.” Maj. Op. at 14981. In other words, the
majority concludes that the evidence contained in the docu-
ments is merely cumulative of evidence that was already
known during trial. That argument is best addressed to the
third Harrington requirement, and I address that argument in
detail below. I respond only briefly here.

The majority’s conclusion would be more persuasive if the
district court had not indicated clearly during trial that, in its
view, the evidence then before it was insufficient to show that
Swisher had lied about his military record. After reading the
half-inch-thick file received on January 21 from the National
Personnel Records Center, which included the Dowling letter,
the district court stated, “It is not at all clear to me what the
truth of the matter is.” The court indicated that the file was
“very difficult to decipher” and not “self-explanatory.” The
court stated that it could not resolve its uncertainty without
“hearing from” a military “records custodian” or similar per-
son. The prosecutor added that what was needed in order to
show the falsity of the “replacement DD-214” was an affida-
vit from Colonel Woodring stating that his signature had been
forged.

As I will discuss in more detail below, the newly provided
Miller and Woodring affidavits were precisely the evidence
that the district court and the prosecutor on January 21 had
described as fatally lacking. If the district court had not
explicitly stated that evidence of the sort provided by the Mil-
ler and Woodring affidavits was needed to “decipher” Swish-
er’s file and to determine the truth, the majority’s conclusion
that this evidence is merely cumulative might be understand-
able. But the district court’s explicit statement that it needed
precisely this evidence makes it is impossible to conclude that
the “substance” of the Miller and Woodring affidavits was not
new.
15024 UNITED STATES v. HINKSON
2. Diligence

Under the second part of the Harrington test, we ask
whether the failure to discover the evidence sooner resulted
from a “lack of diligence on the defendant’s part.” See Kulc-
zyk, 931 F.2d at 548. A court cannot conclude that a defendant
lacks diligence merely because a defense team with unlimited
time and resources might have managed to discover the evi-
dence sooner. Instead, a court must ask whether it was unrea-
sonable for the defense to have failed to discover the evidence
more promptly. “All that is required is ordinary diligence, not
the highest degree of diligence.” 3 Wright et al., supra, § 557,
at 559-60.

The district court concluded that Hinkson had not been suf-
ficiently diligent in discovering the new evidence. It wrote,
“[T]he Court finds that Defendant is unable to establish that
the failure to discover this evidence was not due to his coun-
sel’s lack of diligence. . . . [T]he Court finds that defense
counsel had ample time to investigate Swisher’s record prior
to trial, but was not diligent in pursuing the issue.”

In support of its conclusion that Hinkson had not been dili-
gent, the district court pointed out that Swisher had testified
to receiving “battlefield injuries” from his military service
during an October 11, 2004, deposition in a civil suit involv-
ing Swisher and Hinkson. Hinkson was represented in that
suit by Wesley Hoyt, one of the two attorneys representing
him in his criminal case. In further support of its conclusion,
the district court pointed out that Swisher had discussed his
purported war injuries even before the deposition, during his
grand jury testimony on April 16, 2002, and February 10,
2004.

Swisher’s deposition in the civil case took place just three
months before the start of Hinkson’s criminal trial. That was
the first time Hinkson was put on notice of Swisher’s claimed
“battlefield injuries.”
 UNITED STATES v. HINKSON 15025
It is true, as the district court wrote, that Swisher gave
grand jury testimony in 2002 and early 2004. But this meant
only that the government knew about Swisher’s grand jury
testimony, and thus the government was put on notice in 2002
and 2004 of his claimed “battlefield injuries.” As the district
court knew or should have known, precisely because it was
grand jury testimony, that testimony was kept secret from
Hinkson. The government finally turned Swisher’s grand jury
testimony over to Hinkson pursuant to the Jencks Act on Jan-
uary 4, 2005, only one week before trial.

Thus, the first time Hinkson was put on notice of Swisher’s
claimed battlefield injuries was on October 11, 2004. On Jan-
uary 14, 2005, when Hinkson’s counsel sought to reopen his
cross examination of Swisher in order to question him about
the Tolbert letter, counsel stated to the court, “For quite some-
time [sic], we have been trying to dig into his military history
because we don’t believe it’s accurate.” Then, after Swisher
pulled the “replacement DD-214” out of his pocket, Hink-
son’s counsel stated at the sidebar that the defense had “been
trying to get Mr. Swisher’s military records for about ninety
days; and we have very little control over when that happens.”
(Emphasis added.) January 14 is ninety-five days after Octo-
ber 11.

Thus, we know from the uncontradicted trial transcript that
Hinkson’s counsel tried to obtain Swisher’s military record
immediately after his October 11 deposition. We also know
that government authorities, over whom defense counsel had
“very little control,” were slow to respond. The government
did not provide anything to Hinkson until it provided the Tol-
bert letter on the very day of Swisher’s testimony. The gov-
ernment can hardly claim that Hinkson was not diligent when
his counsel sought the information immediately after Swish-
er’s October 11 deposition, and it was the government that
took ninety days to respond.

In my view, Hinkson’s counsel were diligent in looking for
evidence that could be used to impeach Swisher. Indeed, they
15026 UNITED STATES v. HINKSON
were successful in finding such evidence. As a result of their
efforts, defense counsel received the Tolbert letter from the
National Personnel Records Center while Swisher was still on
the stand. The letter recounted that Swisher did not enter
active duty until 1954. It stated that “Swisher’s Marine Corps
record has been carefully examined by the Military Awards
Branch . . . , and that office has stated that his record fails to
show that he was ever recommended for, or awarded any per-
sonal decorations.”

Hinkson’s counsel reasonably viewed the Tolbert letter as
exactly the sort of impeaching evidence it had been seeking.
Counsel hoped that Swisher, when confronted with the letter,
would be forced to admit that he was not the decorated com-
bat veteran he purported to be. Counsel could hardly have
anticipated that Swisher, after being shown the letter, would
pull from his pocket a forged document purporting to provide
a superseding account of his military service. Until that
moment, there was little reason for the defense to suspect the
existence of Swisher’s “replacement DD-214,” let alone to
suspect that the document was a forgery.

After learning of the “replacement DD-214” on Friday,
January 14, the defense was quick to investigate its authentic-
ity. On Wednesday, January 19, following a long holiday
weekend, defense counsel informed the court that they had
learned that Swisher had recorded two different DD-214
forms with Idaho County, and that the earlier-recorded DD-
214 was “devoid of any . . . honors and medals.” Counsel also
stated that they had spoken to staff at the National Personnel
Records Center who stated that the Center stood by the con-
clusions of the Tolbert letter but would not release additional
documents about Swisher without a subpoena from a judge.
The court agreed to subpoena Swisher’s military file, which
arrived two days later, on Friday, January 21.

The court kept Swisher’s military file to review over the
weekend, and then disclosed it to counsel on Monday, Janu-
 UNITED STATES v. HINKSON 15027
ary 24, the last full day of testimony before closing argu-
ments. The court ruled that it would allow the defense to
recall Swisher for further cross examination, but would not
allow the defense to introduce into evidence any of the mili-
tary documents obtained. The court stated further that it did
not want to conduct a mini-trial during which the government
would put experts on the stand to explain the documents.
Once Hinkson’s trial concluded, the defense was diligent in
obtaining the evidence from Woodring and Miller. It filed its
motion for a new trial just over one month after the conclu-
sion of trial. See Fed. R. Crim. P. 33(b)(1) (providing that
motions for a new trial “grounded on newly discovered evi-
dence must be filed within 3 years after the verdict” (empha-
sis added)).

The government had its own duty to investigate Swisher’s
military record, having been alerted to “the real possibility of
false testimony.” Commonwealth of N. Marina Islands v.
Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001). Because the gov-
ernment had participated in the grand jury proceedings, it
knew long before Hinkson’s counsel that Swisher had given
potentially false testimony about his military experience.
Swisher’s first grand jury testimony was in April 2002. This
was two years and three months before Swisher’s deposition,
and two years and sixth months before Hinkson’s trial. During
this period, if it had wished to do so, the government could
easily have obtained Swisher’s official military file to deter-
mine whether its star witness was telling the truth. But so far
as the record shows, the government made no effort to do so.

The government now argues that Hinkson was not diligent
in investigating Swisher’s military record. But for two and a
half years, it was the government that made virtually no effort
to investigate the trustworthiness of its star witness. Further,
it was the government that took ninety days to respond to
Hinkson’s request immediately after Swisher’s October 11
deposition for information about his military record. Yet the
government now has the nerve to argue that it was Hinkson
15028 UNITED STATES v. HINKSON
who was not diligent. It is almost incomprehensible to me that
the government would make that argument. It is entirely
incomprehensible that the majority would accept it.

3. Material to the Issues at Trial

The third part of the Harrington test requires that the newly
discovered evidence be “material to the issues at trial.” In the
context of a new trial motion under Harrington, materiality
has a special meaning. Materiality under Harrington does not
require that the evidence in question would have been mate-
rial at the original trial. Rather, materiality under Harrington
requires that the evidence in question will materially alter the
result on retrial. In many cases, there will be little or no prac-
tical difference. See, e.g., United States v. George, 420 F.3d
991, 1001 (9th Cir. 2005) (analyzing materiality in terms of
the first trial). But the Harrington test is clearly framed in
terms of what will happen on retrial rather than what hap-
pened at the original trial. See Harrington, 410 F.3d at 601
(“[T]he evidence must indicate that a new trial would proba-
bly result in acquittal.”); see also Krasny, 607 F.2d at 844
(“Yet, we have always required a showing that the new evi-
dence would ‘probably’ result in an acquittal upon a new
trial.”); id. at 845 n.3 (explaining that materiality and proba-
bility “are really two means of measuring the same thing”).
As I discuss below, in addressing Harrington’s fifth require-
ment, I conclude that the newly discovered evidence of
Swisher’s fabrications makes it probable that a new trial will
result in acquittal. Thus, I also conclude that the new evidence
is material under Harrington.

The majority relies on evidentiary rulings made by the dis-
trict court. It notes that the district court held that documents
showing that Swisher lied about his military record were inad-
missible under Federal Rule of Evidence 608(b). The majority
further notes that the district court excluded the evidence
under Rule 403. As discussed above, the district court’s evi-
dentiary ruling under Rule 608(b) was wrong as a matter of
 UNITED STATES v. HINKSON 15029
law, and its ruling under Rule 403 was an abuse of discretion.
The majority does not merely hold (erroneously) that the evi-
dence was correctly excluded by the district court. It goes fur-
ther, suggesting that because the district court properly
excluded the impeaching documents from evidence under
Rules 608(b) and 403, these documents could have no mate-
rial effect on retrial. Even if this were true, this is irrelevant
under Harrington. The materiality test under Harrington is
not whether the newly discovered evidence — the Miller and
Woodring affidavits — would have been admissible during
Hinkson’s first trial. The test is whether the newly discovered
evidence would probably result in acquittal on retrial.

As I discuss in detail in part five of the Harrington test, I
conclude that the Miller and Woodring affidavits would prob-
ably result in acquittal on retrial. The affidavits would not
have to be admitted into evidence to have this effect. The gov-
ernment has now conceded that Swisher lied about his mili-
tary record, that he did not engage in combat, that he did not
earn the Purple Heart he wore on the witness stand, that he
did not earn any of the other military records to which he
claimed he was entitled, and that he brandished a forged “re-
placement DD-214” in front of the jury. Both sides now know
the truth. If Swisher takes the stand and is asked about his
military record, and if he is asked whether he lied under oath
about that record at the first trial, the truth will necessarily
come out. There are two alternatives. If Swisher tells the
truth, the truth will come out through his testimony. If
Swisher lies, the government will have a professional obliga-
tion to correct the record and to disown the testimony of its
star witness.

4. Neither Cumulative nor Merely Impeaching

The fourth part of the Harrington test requires that the new
evidence be “neither cumulative nor merely impeaching.”
15030 UNITED STATES v. HINKSON
a. Cumulative

The district court concluded that “[t]he substance of both
proffered documents is not new and is generally cumulative
of previously available information.” The “previously avail-
able information” to which the court referred consists of the
documents that came to light at three different points during
the trial: first, the Tolbert letter used by defense counsel to
cross examine Swisher on January 14; second, the Dowling
letter, which the prosecution gave to the court on the morning
of January 21 and which the court also received later that day
as part of Swisher’s official military file; and third, the
remainder of Swisher’s official military file, which the court
received on the afternoon of January 21.

During trial, the district court concluded that these docu-
ments established neither that Swisher’s testimony was false
nor that the “replacement DD-214” was fraudulent. On Mon-
day, January 24, after reviewing Swisher’s military file,
including the Dowling letter, over the weekend, the court told
counsel outside the presence of the jury that it found the file
“very difficult to decipher,” and stated that “the truth of the
matter” was “not at all clear.” The court told counsel that the
documents in the file were “neither self-authenticating nor
self-explanatory” and did “not conclusively decide the issue.”
The court concluded that it was “not at all convinced” that it
had enough evidence to “resolve the question of whether or
not the document that Mr. Swisher pulled out of his pocket is
false or not.”

The district court stated that it remained uncertain about the
truthfulness of Swisher’s testimony and the authenticity of the
“replacement DD-214,” despite the fact that Swisher’s mili-
tary file was a government record that the court itself had sub-
poenaed, and despite the fact that the file contained the
Dowling letter. The Dowling letter, written by an officer in
the Headquarters of the U.S. Marine Corps, stated in plain
language that Swisher had not earned any personal military
 UNITED STATES v. HINKSON 15031
commendations and that the “replacement DD-214” was a
forgery. Another factfinder may have found this evidence suf-
ficient to show that Swisher was a forger and a liar. But the
district court was explicit in saying that it found that the evi-
dence then before it was inconclusive.

The district court stated that “the only way” to resolve the
uncertainty surrounding the “silent file” would be to hear
from “a records custodian from the National Personnel
Records Center or someone who is more familiar with mili-
tary records and decorations than any of us.” The prosecutor
agreed with the court’s assessment and added:

What [the defense] would really have to prove, if
this were to be resolved, is that . . . the substitute
DD-214 signed by Captain Woodring, in, I believe,
October ‘57 — that . . . the signature of Captain
Woodring was forged; and I would suggest that
probably would resolve whether it’s correct or not.

How you would prove that something that was
signed in 1957 — I doubt very much Mr. Woodring
is still with us, but I don’t know.

Precisely the additional evidence the court said was lacking
was supplied by Hinkson in his motion for a new trial in the
form of an affidavit from Chief Warrant Officer Miller. Miller
is the U.S. Marine Corps Liaison Officer to the National Per-
sonnel Records Center. His job is to “evaluate the authenticity
of information, records and documents affecting individual
Defense Department transfer documents including DD Forms
214.” Miller concluded, after a thorough investigation, that
the replacement DD-214 was a forgery and that Swisher had
not earned a Purple Heart or any other personal commenda-
tion.

Similarly, precisely the additional evidence the prosecutor
said was lacking was supplied in the form of an affidavit from
15032 UNITED STATES v. HINKSON
the now-retired Colonel Woodring. As it turned out, Colonel
Woodring is (to use the prosecutor’s words) “still with us.”
Colonel Woodring stated unequivocally in his affidavit that
his signatures on both the purported 1957 letter to Swisher
and the replacement DD-214 were forgeries.

In sum, the court stated at trial that the evidence before it
was insufficient to allow it to determine the truth or falsity of
Swisher’s evidence. Defense counsel then presented to the
court, in support of the motion for a new trial, precisely the
additional evidence the court and the prosecutor said was
needed to resolve the uncertainty. In this circumstance, this
new evidence cannot possibly be considered cumulative.

The majority concludes that the Miller and Woodring affi-
davits are cumulative because “Hinkson’s attorney had
already proffered evidence that such ‘Replacement DD-214’
form was a forgery, in the form of the Tolbert and Dowling
letters.” Maj. Op. at 14983-84. The majority would be on
firmer ground in so concluding if the district court had agreed
with this statement. However, the district court was very clear
in saying precisely the opposite of what the majority now
says. As I have just explained, the district court concluded
that Swisher’s entire personnel file, including the Tolbert and
Dowling letters, was insufficient to “establish that the replace-
ment DD-214 was a forgery and that Swisher had lied about
receiving military awards.” Given the district court’s view of
the evidence then available, it is impossible to conclude that
the Miller and Woodring affidavits are cumulative.

b. Merely Impeaching

Impeaching evidence may properly support a motion for a
new trial under Rule 33. Indeed, we have expressly rejected
the proposition that “impeachment evidence . . . is never suffi-
cient to warrant a new trial under Fed. R. Crim. P. 33.” United
States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992) (emphasis
in original); see also United States v. Wallach, 935 F.2d 445
 UNITED STATES v. HINKSON 15033
(2d Cir. 1991), as amended (concluding that new evidence
impeaching the government’s central witness was sufficiently
powerful to require a new trial); United States v. Taglia, 922
F.2d 413, 415 (7th Cir. 1991) (explaining that the prohibition
on using impeachment evidence to secure a new trial should
not be “taken at face value”); Balestreri v. United States, 224
F.2d 915, 917 (9th Cir. 1955) (“To deny in every case a
motion for a new trial on the ground of newly discovered evi-
dence for the sole reason that the evidence was ‘merely
impeachment’ might often lead to injustice.”).

We recognized in Davis that enforcing a per se prohibition
on impeachment evidence as the basis for a new trial would
be inconsistent with the spirit of Rule 33, which “permits the
granting of a new trial motion ‘if required in the interest of
justice.’ ” Davis, 960 F.2d at 825. A per se prohibition would
also be inconsistent with our longstanding refusal to draw a
“categorical distinction between types of evidence.” Taglia,
922 F.2d at 415; see also Giglio v. United States, 405 U.S.
150, 154-55 (1972) (refusing to distinguish between exculpa-
tory and impeachment evidence in the Brady context); Napue
v. Illinois, 360 U.S. 264, 269 (1959) (refusing to distinguish
between exculpatory and impeachment evidence in cases
involving prosecutorial misconduct). Accordingly, we recog-
nized in Davis that sometimes,

newly-discovered impeachment evidence may be so
powerful that, if it were to be believed by the trier of
fact, it could render the witness’ testimony totally
incredible. In such a case, if the witness’ testimony
were uncorroborated and provided the only evidence
of an essential element of the government’s case, the
impeachment evidence would be ‘material’ under
[the Harrington test].

960 F.2d at 825; see also Taglia, 922 F.2d at 415 (holding
that a new trial would be warranted under Rule 33 if it were
discovered after trial that the government’s star witness was
15034 UNITED STATES v. HINKSON
“utterly unworthy of being believed because he had lied con-
sistently in a string of previous cases”); 3 Wright et al., supra,
§ 557, at 560, 563 (noting that impeachment evidence is usu-
ally “not sufficient to justify a new trial,” but that this is not
an “invariable rule,” and “in flagrant cases it may suffice”).

In denying Hinkson’s motion for a new trial, the district
court wrote that “the proffered evidence [i.e., the Miller and
Woodring affidavits] is impeachment evidence and so is not
a valid basis for a new trial.” It is apparent from this statement
that the district court believed mistakenly that, as a matter of
law, impeachment evidence may never provide the basis for
a new trial. As just discussed, our cases do not so hold.

The majority concludes that the Miller and Woodring affi-
davits are impeaching and therefore cannot satisfy the fourth
requirement of Harrington. It writes, “[E]videntiary admis-
sion of the extrinsic Miller and Woodring affidavits would
serve no purpose other than to impeach Swisher’s testimony
as to his military record rather than his testimony as to Hink-
son’s solicitations.” Maj. Op. at 14984. The majority mistakes
the nature of the Miller and Woodring affidavits. They are
powerful enough to permit a jury to conclude that Swisher’s
testimony inculpating Hinkson — the only uncorroborated
testimony implicating Hinkson on the three counts for which
the jury convicted him — was “totally incredible.”

5. Probability of Acquittal on Retrial

The fifth Harrington requirement is that “the new evidence
must indicate that a new trial probably would result in acquit-
tal.” I conclude that this new evidence would probably result
in acquittal at retrial. I so conclude after comparing the evi-
dence presented at trial on the three solicitation counts on
which Hinkson was acquitted, and the three counts on which
he was convicted.

I apologize for the length of the discussion that follows, but
it is unavoidable. A judge who is asked to decide whether “a
 UNITED STATES v. HINKSON 15035
new trial probably would result in acquittal” necessarily must
examine carefully the evidence that was presented in the first
trial, and, as a corollary, the evidence that is likely to be pre-
sented in the second trial. A judge ruling on a new trial
motion may choose not to describe that evidence in detail, but
he or she must necessarily consider it. Given the nature and
importance of this case, I describe it in detail so that the
reader may understand the basis for my conclusion.

Three solicitations to murder were charged in Counts 1
through 3 of the indictment. In these counts, the government
charged that Hinkson had solicited James Harding “in or
about January 2003” to murder Cook (Count 1), Hines (Count
2), and Lodge (Count 3). The jury acquitted Hinkson on all
three of these counts.

Three more solicitations were charged in Counts 4 through
6. In these counts, the government charged that Hinkson had
solicited James Harding “on or about March 17, 2003” to
murder Cook (Count 4), Hines (Count 5), and Lodge (Count
6). The jury deadlocked on these three counts.

Three more solicitations were charged in Counts 7 through
9. In these counts, the government charged that Hinkson had
solicited Swisher “between about December 2002 and Febru-
ary 2003” to murder Cook (Count 7), Hines (Count 8), and
Lodge (Count 9). The jury returned a verdict of guilty on
these counts.

Finally, two threats to commit murder were charged in
Counts 10 and 11. In these counts, the government charged
that Hinkson made statements to Anne Bates in which he
threatened to murder the children of Cook (Count 10) and the
children of Hines (Count 11). The jury acquitted Hinkson on
these counts.

The issue at trial was not whether Hinkson asked Harding
and Swisher to kill Cook, Hines, and Lodge. The evidence
15036 UNITED STATES v. HINKSON
was persuasive that he had done so. The issue was whether
Hinkson had been serious in his requests. That is, the issue
was whether he had an actual “intent” that Cook, Hines, and
Lodge be killed, which was required under 18 U.S.C.
§ 373(a). Only if Hinkson was serious in soliciting the murder
of Cook, Hines, and Lodge — that is, only if he had an actual
intent that they be killed — did he commit a criminal offense.

The jury acquitted Hinkson outright on three of the nine
counts charging solicitation in violation of § 373(a). On these
three counts, the jury concluded that the government had not
shown that Hinkson had been serious in soliciting murder on
that occasion. The jury could not make up its mind on three
more of the counts, unable to conclude unanimously that
Hinkson had been serious in soliciting murder on that occa-
sion. The jury was able to conclude unanimously only on
three counts — Counts 7-9, the counts involving Swisher —
that Hinkson had been serious in soliciting murder. To assess
the likelihood of an acquittal on retrial on the three Swisher-
related counts (Counts 7-9), I compare the evidence on the
three Harding-related counts (Counts 1-3) on which Hinkson
was granted an outright acquittal.

More than half of the trial testimony provided background
evidence for all of the counts charged in the indictment. This
background evidence showed that Hinkson owned and oper-
ated a lucrative business called WaterOz in Grangeville, a
small town in Idaho. WaterOz bottled water into which had
been dissolved, by a secret process supposedly invented by
Hinkson, very small particles of minerals such as gold and
platinum. According to Hinkson, the water has marvelous
medicinal properties. Hinkson advertised and sold his magic
water over the Internet.

Hinkson did not pay federal income tax, on the asserted
ground that he was not legally obligated to do so. (In a sepa-
rate appeal, our three-judge panel affirmed Hinkson’s crimi-
nal conviction on his tax and currency structuring offenses.)
 UNITED STATES v. HINKSON 15037
Hinkson was unstable and paranoid. He was continually wor-
ried that people, including government officials and his own
employees, were trying to take WaterOz from him. After
Cook and Hines participated in an early-morning raid of his
home in November 2002, Hinkson repeatedly claimed that
they had tried to murder him. Hinkson also repeatedly
claimed that an attorney named Dennis Albers, who previ-
ously had represented a plaintiff in a successful suit against
him, was trying to murder him.

Hinkson developed grudges easily and held them tena-
ciously. He had a special dislike for employees of the federal
government. Sometimes his talk was somewhat comical. For
example, he talked to James Harding about a “fed-a-pult” and
a “fed-guard.” According to Harding, a “fed-a-pult” was a
device to catapult federal agents into a canyon or into an
oncoming train. A “fed-guard” was something to put “on the
front of your car like a cattle guard.” Sometimes his talk was
not comical at all. For example, the evidence at trial showed
that Hinkson asked multiple people, on multiple occasions, to
kill Cook, Hines, and Lodge, and that Hinkson repeatedly said
he wanted to torture and kill people, including Cook’s and
Hines’s children.

a. Evidence Supporting Counts 1-3

Counts 1 through 3 charged that in January 2003 Hinkson
solicited James Harding to kill Cook, Hines, and Lodge. As
noted above, the jury acquitted Hinkson on these counts.

The evidence supporting Counts 1 through 3 was as fol-
lows. In November or December 2002, Harding and Anne
Bates met Hinkson at a “health forum” in Southern California.
At that time, Harding was a restaurant manager in Southern
California. Previously Harding had been a bodyguard and had
worked “in the entertainment field.” He had most recently
“hosted” radio shows on “the paranormal”; before that his
radio work had been “comedy shows, morning shows, after-
15038 UNITED STATES v. HINKSON
noon drive, entertainment.” His last radio work was three
years before he testified.

After the “health forum,” Hinkson, Harding, Bates, and
several others went out to eat. During the meal, Hinkson
offered Bates a job at WaterOz. Harding and Bates drove to
Grangeville at the beginning of January 2003 and stayed at
Hinkson’s house.

On the second night of Harding and Bates’s stay, Harding
was sitting at the kitchen table. Bates was nearby. Harding
testified that Hinkson handed him “a large sum of money.”
Harding responded with a crude joke: “Who do I have to
blow?” According to Harding, Hinkson responded “some-
thing like, ‘It’s not who you have to blow but who you have
to kill.’ ” Harding testified, “I could make this much money
killing [Cook, Hines, and Lodge]. He had also a wad with him
of some sort; and that was supposed to be another $10,000.
There was a $10,000 flat fee, and this was a wad of $10,000.”
Harding testified that Hinkson then “pulled back . . . and it
became a joke.” But, Harding testified, “I assumed that I was
being tested.” He testified further, “And when the $10,000
came up, I thought this was his test.”

Bates, who was also in the kitchen, testified about the epi-
sode.

We were at the table in the kitchen . . . . He was say-
ing something along the lines that he would like
some of these people dead, and he had a lot of
money that he produced from somewhere. And I
don’t know if — maybe in a joking manner, he
offered it to J.C. [i.e., Harding] and said, you know,
“Whoever does this, this is theirs,” something along
those lines from what I can remember.

The prosecutor asked: “Did he say it was a joke?” She
answered, “He did not say it was a joke, no.”
 UNITED STATES v. HINKSON 15039
Bates remained in Hinkson’s house in Grangeville, but
Harding went back to Southern California to bring Bates’s
things back in a U-Haul truck. On Harding’s return he again
stayed in Hinkson’s house, “probably” during the second
week of January. Harding testified as follows:

Q. Did you have any further discussions with Mr.
Hinkson where he talked about these three feds, fed-
eral officials?

A. Every time I talked to Dave. That was on his
mind every time when we talked on every occasion.

Q. Did that happen on the second occasion?

A. Absolutely, yes.

...

Q. What did he say?

A. That they need to die; they are demons; they need
to be tortured. It was sick stuff that I don’t like com-
ing out of my mouth. . . . I hate them; they are
demons; they need to die; they need to be killed; I
have got people working on that. You never know if
he is kidding or serious. I want their throats cut; I
want them tortured; I want them taken out and shot
in the knee caps and told who is having it done and
why it’s being done.

...

Q. Did he say how he wanted Agent Hines killed
or harmed?

...
15040 UNITED STATES v. HINKSON
A. No. The second visit . . . it wasn’t specific. It was
just malicious rhetoric, like I’m saying. He would be
killed, executed. Dave becomes a madman when he
talks about it. He will, literally, get very angry. It’s
anything you can think of that is wild. It grew and
grew each time.

During this second visit, Hinkson asked Harding to get
ammunition for guns that Hinkson kept in the house. Harding
testified that Hinkson did not seem to know much about guns,
and that he was very interested in what Harding knew about
them: “[W]e talked about my knowledge of guns and that I
grew up around guns and shotguns. He wanted to know how
extensive my background was, the basics of how I got into it
and why I was into it.” Harding testified that he had worked
as a bodyguard, and that Hinkson knew him through a friend
who was also a bodyguard:

Q. How do you know he knew you through another
bodyguard?

A. They were good friends. They were close friends.

Q. Who is that?

A. Mark Glover . . . . Him and David — I don’t
know how — are very close friends. And I know
Mark through doing security work, bodyguarding.

...

Q. Have you worked as a bodyguard?

A. Yes.

Q. Have you worked with Mr. Glover?

A. Yes.
 UNITED STATES v. HINKSON 15041
Harding became very friendly with Hinkson and frequently
stayed at his house in Grangeville on the weekends. During
those visits, Hinkson repeatedly discussed killing Cook,
Hines, and Lodge.

Q. On the occasions that you go back up to
Grangeville, would you see Mr. Hinkson?

A. Yes.

Q. Would you talk to him on the same subject mat-
ters of the three federal officers?

A. Extensively.

Q. Did he mention these things about killing federal
officers more than once?

A. Every time we spoke, yes.

Q. How many times?

A. Fifty. . . .

Q. Did there come a time when he also offered you
money?

A. Yes.

Q. In relationship to when you first came to
Grangeville, that first trip in early January, when
would be the second time he offered you money?

A. A couple of weeks, maybe.

The second time Hinkson offered Harding money, the two
men were driving to the bank. Harding testified that Hinkson
had $10,000 with him.
15042 UNITED STATES v. HINKSON
Q. What did he say . . . ?

A. Just leading. You could use the cash. Do you
need cash? Do you need money. You could use this
extra money. Think about it. I never knew if he was
serious or kidding. He always talked about it and
said it; and it was always leading, like I was sup-
posed to bite.

Harding eventually became convinced that Hinkson had
been serious in soliciting him to kill Cook, Hines, and Lodge.
When Hinkson solicited him again in March of 2003, Harding
contacted the F.B.I. He spoke to Nancy Cook, telling her,
“Somebody is going to make an attempt on your life, I
believe, if I don’t make this phone call.” The F.B.I. arranged
for Harding to go back to Hinkson’s house with a recording
device concealed on his body. Possibly because Hinkson sus-
pected the existence of the device, Hinkson said nothing
incriminating on that occasion.

b. Evidence Supporting Counts 7 through 9

Counts 7 through 9 charged that between December 2002
and February 2003, Hinkson solicited Swisher to kill Cook,
Hines, and Lodge. As noted above, the jury convicted Hink-
son on these counts.

I have already described much of the evidence supporting
Counts 7 through 9. I recount it here in more detail to facili-
tate a meaningful comparison to the evidence supporting
Counts 1 through 3. Swisher took the stand wearing a Purple
Heart pin on his lapel. On direct, he was folksy and garrulous:

Q. Mr. Swisher, how old of a man are you?

A. I turned 68 yesterday.

Q. You live in Idaho?
 UNITED STATES v. HINKSON 15043
A. Yes, I do.

Q. For how long?

A. My gosh. Over thirty years.

...

Q. How did you have an interest in mining?

A. Well, I have an old friend, who is now dead —
bless his soul — and he was one of the — he was the
epitome of an Idaho range rider till the day he died.
He carried an old, single-action Colt .45 and rode the
range in the back country.

Q. My question is: How did you manage to switch
careers [to mining]?

A. I’m getting to that, counselor.

Swisher testified that he had expertise in “assaying,” and
testified at some length about his work for WaterOz testing
the concentration of minerals dissolved in the water. Then the
prosecutor asked him about his military background, and
Hinkson’s interest in that background:

Q. Have you ever served in the Armed Forces, Mr.
Swisher?

A. Yes.

Q. Did Mr. Hinkson ever ask you about your service
in the Armed Forces?

A. Yes.

Q. What branch did you serve in?
15044 UNITED STATES v. HINKSON
A. United States Marine Corps.

Q. Did you ever discuss that with Mr. Hinkson?

A. Yes.

Q. And what was the nature of your discussion with
him?

A. As I recall, Mr. Hinkson stated he had been in the
Navy. I indicated I had been in the Marine Corps. He
asked if I had served in any combat situations. I . . .
told him, “Yes.”

Q. What else did he ask you about combat situa-
tions?

A. He asked if I had ever killed anyone.

Q. What did you say?

A. I told him, “Yes.” He asked, “How many?” And
I told him, “Too many.”

Q. Was that one conversation or several?

A. It may have happened over a period of time.

Q. What period of time?

A. Oh, probably off and on throughout the year
2001.

Swisher testified that Hinkson knew that he was an expert
with firearms:

Q. Did you ever claim to Mr. Hinkson that you had
proficiency with firearms?
 UNITED STATES v. HINKSON 15045
A. I believe he knew that I was an expert rifleman,
pistolman.

Q. How did he know that?

...

A. I probably told him, and he observed my shoot-
ing.

Q. What was the occasion that you went shooting
with him?

A. I believe it was probably in December, sometime
in December of 2002, that he had a gentleman from
. . . Ukraine, visiting. . . . He said we were going to
meet out at an employee’s who lived in the country,
Mr. Rich Bellon. . . . [W]e shot during the course of
the day.

Q. Who did?

A. Myself, Mr. Hinkson, and the Russian gentleman.

...

Q. What did you bring?

A. I brought a .22 Henry lever-action rifle and .32
semi-automatic Browning pistol, and a .45 auto.

Q. How was your shooting?

A. I always hit what I aim at.

Q. How was Mr. Hinkson’s shooting?

A. Not terribly good.
15046 UNITED STATES v. HINKSON
Q. What were you shooting at?

A. Well, we shot some trap with a shotgun. I only
shot maybe a half dozen times because I recently had
a pacemaker installed; and a shotgun, a twelve-gauge
particularly, kind of jars you around a little. I
decided I would quit in due time, but I hit my tar-
gets. As I recall, I don’t believe David hit any of his.

Swisher described their “trap shooting” as follows:

The person who wasn’t shooting would throw the
clay pigeons for the others. You have a spring-
loaded hand unit that will kick them out, I expect,
thirty, forty yards without any problem at all, air-
borne. . . . And the challenge is to hit the airborne
target when it’s across from you.

Swisher testified that Hinkson was very angry at Dennis
Albers, whom Swisher also disliked. Swisher testified that
sometime shortly after April 2002 Hinkson told him “in pri-
vate” that he wanted Albers and his family members tortured
and killed:

Q. What was it that Mr. Hinkson said?

A. Well, he started off by talking about how he
would like to have Mr. Albers and his family, partic-
ularly his wife, Margaret, tortured and killed. And he
went into quite a description of the torture.

Q. And what was that?

A. He would — he said he would like to see them
stripped, bound, and gagged, and then burned with
cigarettes or cigars. And then while Albers was
down on his knees observing this occurring to his
wife and any other family members that might be
 UNITED STATES v. HINKSON 15047
present, he wanted to have a plastic bag put over her
head so that she would suffocate to death in front of
him, along with the other family members. Then he
wanted that procedure repeated on Mr. Albers, him-
self.

Q. Did he want you to do something in that regard?

A. When he finished describing what he wanted
done, then he offered me $10,000 a head to do it.

Q. What was his demeanor like when he was telling
you these things?

A. He was cool and calm at that time.

Q. What was your response to Mr. Hinkson?

A. I told him he was out of his mind and he needed
to knock that kind of BS off, and I didn’t even think
about it.

Q. How did he respond to that?

A. He just smiled and then didn’t reply and changed
the subject.

Swisher testified that he had a further conversation “in
Hinkson’s trailer” in July or August of 2002:

Q. What did Mr. Hinkson say about how he felt
about Nancy Cook and Steve Hines?

A. He wanted them treated in the same fashion as he
had initially described for Mr. Albers and his family
. . . . [H]e asked if I remembered the offer he made
regarding Mr. Albers and his family. And I said that,
of course, I did. And he said he wanted that done,
15048 UNITED STATES v. HINKSON
basically, with Ms. Cook and her family and Mr.
Hines and his family. And I told him, again, that he
was out of his mind. And I, also, went into a little bit
of a dissertation because David was a friend at that
time. And he said, “Well, you know, I know you’re
used to it. I mean, you have killed people.” I said,
“Yes, I have killed people in defense of my life and
others; but what you are talking about is murder, and
there is a significant difference here. And you need
to get it out of your head because, if you continue
talking that way, it will get you in trouble. And if
you continue talking this way and I think you are
serious about this, I will have to report it to the
authorities.”

Q. How did he respond to that?

A. Well, he got his smile again; and then he changed
the subject.

Swisher testified that after Cook and Hines arrested Hink-
son in a raid on his house in November 2002, his hostility
toward them intensified. Swisher testified, further, that Hink-
son had a third conversation in which Judge Lodge was added
to the list of intended victims:

A. [I]n January of ‘03, he approached me again[,]
went through the names of the people that had
offended him, and added a federal judge by the name
of Lodge to that list. And I, essentially, dropped the
hammer at that point on David.

Q. Let me first ask what he asked you to do regard-
ing those people?

A. He wanted them all treated the way that the initial
offer regarding Albers and his family had been han-
dled.
 UNITED STATES v. HINKSON 15049
Q. Were you to receive anything in return for doing
that?

A. At least $10,000 a head. And I made a mental
note that, with all of the people he named at that
time, we were well over $100,000.

...

Q. Did the $10,000 offer include Nancy Cook and
Steve Hines?

A. Oh, yes.

Q. Did it include Mr. Albers?

A. Yes.

Q. Did it include the children of those people?

A. Yes.

Q. What did he want done with the children of those
people?

A. Treated in the same fashion.

Q. How?

A. Tortured and killed.

Q. Now, you mentioned, this time, you reacted in a
different fashion?

A. Yes, I did. I’m afraid I became a bit hostile,
myself, at that point in time.

Q. What did you say?
15050 UNITED STATES v. HINKSON
...

A. I told him, regarding these matters of trying to kill
people or having me murder them for him and so on,
that I never wanted to hear that again and to fuck off.
And he left.

Q. What was his demeanor like when he was asking
you to do this?

A. He was almost in a pleading fashion that last
time. He was telling me how harassed he had been
and how they had hurt him and they were out to not
just get him but to kill him, too, and he just had to
have this done; and as his best friend, as he put it at
that time, he felt I should do it.

Swisher testified that sometime in the spring or summer of
2003, he finally contacted a law enforcement official. How-
ever, he was unsure about the date on which he did so, and
he was unforthcoming about the details of what he told law
enforcement officials:

Q. When did you contact anyone in legal authority
regarding Mr. Hinkson?

A. Oh, I think it was probably just before he was re-
arrested in ‘03. I’m not quite sure of the date there.

Q. Are you talking about spring or summer ‘03 or
what?

A. No. It would have probably been getting close to
summer there. Spring, summer, somewhere through
there. Sometime after April, I’m thinking.

Q. All right.
 UNITED STATES v. HINKSON 15051
A. I might be wrong.

Q. And who did you contact?

A. I contacted the Idaho County Assistant Prosecutor
from Grangeville.

Q. Now, is he a State Prosecutor, as opposed to a
Federal Prosecutor?

A. Yes. That’s correct.

Q. And did you express some concern to him?

A. I did.

Q. Was it regarding Mr. Hinkson?

A. Yes.

Q. Thereafter, were you contacted by the FBI?

A. Yes.

Q. Who contacted you?

A. Mr. Will Long.

Q. That’s the person here at the table?

A. Correct, sitting right there.

THE COURT: For the record, the witness has identi-
fied Special Agent Long.

[THE PROSECUTOR]: Thank you, Your Honor. I
have no further questions on direct, Your Honor.
15052 UNITED STATES v. HINKSON
The government’s direct examination of Swisher filled
forty-three pages of transcript. Cross examination, not includ-
ing Swisher’s testimony about the Purple Heart and the “re-
placement DD-214,” filled eighty-three pages. During this
cross examination, Swisher made clear that on each of the
three occasions when Hinkson solicited him to kill Albers,
Cook, Hines, and Lodge, there were no witnesses. Swisher
stated plainly: “When he made the three direct solicitations to
me, they were made in private.”

Much of the cross examination was devoted to showing the
extreme hostility between Swisher and Hinkson. This hostility
had arisen after Hinkson’s supposed solicitations of Swisher
to commit murder, for reasons unrelated to the solicitations.
Richard Bellon was one of Hinkson’s key employees at
WaterOz; indeed, the trap shooting had taken place at Bel-
lon’s house. Sometime in late 2003, Bellon sued Hinkson. In
response, Hinkson brought Swisher into the suit, apparently as
a third-party defendant. Swisher then counterclaimed against
Hinkson for more than $500,000.

Relations between Swisher and Hinkson became so
strained that Swisher accused Hinkson of hiring someone to
kill him. Swisher testified that he was “at a remote area in
Idaho County with a Vietnam combat veteran friend.”
Swisher said that he was sitting in an outhouse when, accord-
ing to his testimony, someone hired by Hinkson shot at him
and missed. However, Swisher admitted that he never saw the
person who supposedly did the shooting, and that no shell
casings or footprints were ever found.

Only one witness corroborated Swisher’s testimony that
Hinkson had been interested in, and impressed by, Swisher’s
military background. That witness was Richard Bellon. Bel-
lon testified that Hinkson “wanted to hire Joe Swisher as a
bodyguard.” “[H]e felt like he needed to hire [Swisher]
because he was trained”:
 UNITED STATES v. HINKSON 15053
Q. Did [Hinkson] explain to you how Mr. Swisher
was trained?

A. Yes. . . . [I]t was that Mr. Swisher had an exten-
sive military background, that he had been in com-
bat, and that he had killed people during the war. Mr.
Hinkson would tell me about that and the details of
him, his past.

In his own testimony, Swisher never mentioned that Hinkson
had wanted to hire him as a bodyguard. Nor did Swisher ever
mention that Hinkson had been interested in his military back-
ground because of a desire to hire a bodyguard.

Hinkson took the stand in his own defense. Swisher had
already testified that on three occasions Hinkson had solicited
him “in private” to commit murder. Hinkson specifically
denied having made such solicitations:

Q. Mr. Hinkson, Mr. Swisher indicated that he had
been solicited by you on a number of occasions . . . .
Do you recall that he said that in his testimony?

A. . . . Yeah.

Q. Mr. Hinkson, did you ever have a communication
with Mr. Swisher where you asked him to murder
anyone?

A. No, sir.

Hinkson had a somewhat different recollection of the
excursion to Bellon’s house. According to Swisher, they had
engaged in trap shooting “during the course of the day.”
Swisher testified, “I hit my targets.” Hinkson testified:

Q. Do you remember the evening that Mr. Swisher
went to Mr. Bellon’s house with you for dinner?
15054 UNITED STATES v. HINKSON
A. Yes, I do.

Q. And I believe there was testimony that that
occurred in approximately September of ‘02?

A. Yes, just before his open heart surgery.

...

Q. And there was someone who came to dinner that
night? Who was that?

A. Roman Polankio from the Ukraine.

...

Q. Who fired the gun that evening?

A. I’m not really interested in guns, and I shot it
twice. Mostly, Joe [Swisher] shot from his chair
because he had a hard time standing. He was pretty
sick.

Bellon, at whose home the trap shooting took place, was cal-
led by the government to testify. The government did not ask
Bellon whether it was true that Swisher was then “pretty sick”
with heart disease; that Swisher shot “mostly . . . from his
chair”; or that Swisher, though ill and sitting in a chair, suc-
cessfully hit all of his targets. Those targets, according to
Swisher’s testimony, had been rapidly moving airborne clay
pigeons thirty to forty yards away.

c. Comparison of the Evidence in Counts 1
through 3 and Counts 7 through 9

The background evidence against Hinkson was the same
for both Counts 1 through 3 (the Harding-related counts on
which he was acquitted) and Counts 7 through 9 (the Swisher-
 UNITED STATES v. HINKSON 15055
related counts on which he was convicted). It was relevant to
all of these counts that Hinkson had a paranoid unstable per-
sonality; that he disliked government interference with his
affairs; that he particularly disliked Cook, Hines, and Lodge;
and that he had asked multiple people on multiple occasions,
not limited to Harding and Swisher, to kill Cook, Hines, and
Lodge on his behalf.

The evidence specific to Counts 1 through 3 and Counts 7
through 9 is similar in a number of respects. First, there was
evidence that Hinkson believed that both Harding and
Swisher were skilled in the use of firearms. Second, there was
evidence that Hinkson knew that Harding had been a body-
guard, and that he was interested in using Swisher as a body-
guard. Indeed, Bellon testified that Hinkson’s interest in
Swisher’s military background and skill in firearms stemmed
from his interest in using Swisher as a bodyguard. Third, the
charged solicitations took place at about the same time.
Counts 1 through 3 charged conduct that supposedly took
place in January 2003. Counts 7 through 9 charged conduct
that supposedly took place between December 2002 and Feb-
ruary 2003.

The evidence specific to these counts differed in some
respects. However, three of those differences made it more
likely that the jury would have convicted on the Harding-
related counts rather than on the Swisher-related counts.

First, there was a corroborating witness to one of the
charged solicitations of Harding. Bates was a witness to the
solicitation in Hinkson’s kitchen at the beginning of January.
She testified that she saw the “wad” of money on the kitchen
table and that she heard Hinkson tell Harding that the money
was his if he killed Cook, Hines, and Lodge. Bates testified
that Hinkson had not said that he was joking when he said
this. By contrast, Swisher testified that there were no wit-
nesses to any of Hinkson’s three solicitations. He specifically
testified that all three solicitations took place “in private.”
15056 UNITED STATES v. HINKSON
Second, Harding and Hinkson were good friends at the time
of the solicitations. They became unfriendly only as a result
of Harding’s reporting to the F.B.I. that Hinkson had solicited
him to commit murder. Swisher and Hinkson also had been
good friends at the time of the solicitations. But, by contrast
to Harding, Swisher had become a bitter enemy, for reasons
unrelated to the solicitations, by the time of trial. Thus, unlike
Harding, Swisher had ample reason, unrelated to the solicita-
tions, to wish Hinkson ill when he testified at trial.

Third, Harding testified that Hinkson first solicited him in
January 2003 to murder Cook, Hines, and Lodge. He testified
that Hinkson solicited him again in March 2003. Immediately
after the March solicitation, Harding contacted the F.B.I. In
an effort to help the F.B.I., Harding went so far as to wear a
secret recording device in an attempt to obtain incriminating
evidence against Hinkson. By contrast, Swisher testified that
Hinkson solicited him shortly after April 2002 to murder
Albers. Swisher testified further that Hinkson solicited him in
July or August 2002 to murder Cook and Hines. Finally,
Swisher testified that Hinkson solicited him in November
2002 to murder Cook, Hines, and Lodge. Swisher testified
that he did not go to a local Idaho prosecutor to report Hink-
son’s solicitations until sometime after April 2003.

Harding was so concerned about Hinkson that he went to
the F.B.I. within two months of the time Hinkson first solic-
ited him, and immediately after the second time. When Har-
ding contacted the F.B.I., he and Hinkson were still on good
terms. Harding testified that he spoke directly to Nancy Cook,
one of Hinkson’s would-be victims, and told her that he
thought she was in danger. Harding then wore a wire at the
request of the F.B.I. in an attempt to obtain evidence against
someone he clearly thought was dangerous. By contrast,
Swisher waited at least a year after Hinkson solicited him to
murder Albers, at least nine or ten months after Hinkson
solicited him to murder Cook and Hines, and at least three or
four months after Hinkson solicited him to murder Cook,
 UNITED STATES v. HINKSON 15057
Hines, and Lodge before reporting Hinkson to law enforce-
ment officials. Unlike Harding, Swisher called a local Idaho
prosecutor rather than the F.B.I., even though federal officers
had been threatened, and, unlike Harding, Swisher gave no
specifics about what he told law enforcement officials. When
Swisher finally contacted the local prosecutor, he and Hink-
son were no longer on good terms. There is nothing in the
record to indicate that Swisher ever offered to wear a wire or
otherwise to help gather incriminating evidence against Hink-
son.

In three respects the evidence against Hinkson at trial was
stronger in the Swisher-related counts than in the Harding-
related counts.

First, Swisher testified that Hinkson believed him to be par-
ticularly well qualified to be a killer. Swisher testified that he
told Hinkson about his combat experience in Korea, and that
he had killed “too many” people. We now know that Swisher
was never in combat in Korea and that he never killed anyone,
let alone “too many” people. However, there is evidence from
both Swisher and Bellon that Hinkson believed the story.
Swisher’s (falsely claimed) combat experience could well
have made a greater impression on Hinkson than Harding’s
experience with firearms and his work as a bodyguard. There
was a great deal of evidence at trial — most of it from
Swisher himself — about Swisher’s ill-health. But the jury
could have concluded that despite Swisher’s ill-health, Hink-
son could have seen him as a well qualified killer.

Swisher further testified that while trap shooting he had
demonstrated to Hinkson that he was an excellent shot. The
jury might have had some reason to doubt Swisher’s testi-
mony that he hit all of his targets, given that Hinkson
described Swisher as a very sick man who sat in a chair while
shooting. But the jury could well have disbelieved Hinkson,
and could have believed that Swisher had indeed demon-
strated to Hinkson on that occasion that he was an excellent
15058 UNITED STATES v. HINKSON
shot. The jury could have concluded that an actual demonstra-
tion of shooting prowess by Swisher was more impressive to
Hinkson than Harding’s mere talk about his knowledge of
guns.

Second, Swisher testified that during the first solicitation
Hinkson’s “demeanor” had been “calm and cool,” and that
during the third solicitation Hinkson’s “demeanor” was “al-
most in a pleading fashion.” By contrast, Harding testified
that he had difficulty telling whether Hinkson was serious in
soliciting the murders. Only after a second solicitation in
March did Harding decide that Hinkson had been serious.

Third, Swisher presented himself as a United States Marine
who had been wounded in the service of his country. His sta-
tus as a decorated war hero may have been, for some or all
of the jurors, an additional reason to believe his testimony.
The jury may have found Swisher particularly credible and
sympathetic when, after an accusation by Hinkson’s counsel
that Swisher was lying about his military record, Swisher dra-
matically produced his “replacement DD-214” from his
pocket. The jury might also, despite the district court’s
instruction, have penalized the defense for what appeared to
be an unfounded attack on a decorated war hero.

Our task is not to replay the first trial except as it might
help us predict what would happen if Hinkson is retried on
Counts 7 through 9. The question before us is what would
happen at a new trial. Specifically, the question is whether the
fifth Harrington requirement is satisfied: Does the new evi-
dence “indicate that a new trial would probably result in
acquittal”?

In the original trial, Swisher was the only witness to pro-
vide direct evidence that Hinkson solicited him to commit the
killings. On retrial, the government would have no choice but
to rely on Swisher to supply the evidence of Hinkson’s solici-
 UNITED STATES v. HINKSON 15059
tations. To say that Swisher’s credibility would fare poorly at
a new trial is an understatement.

At Hinkson’s original trial, the jurors almost certainly had
the impression that Swisher was a decorated combat veteran.
The prosecutor described Swisher in his opening statement as
a “Combat Veteran from Korea during the Korean Conflict”
who “was not averse to . . . violent, dangerous activity,” and
stated in his closing argument that Hinkson “understood” that
Swisher “had served in combat and killed people.” In
response to defense counsel’s questions, Swisher produced his
“replacement DD-214” on the witness stand and testified that
he had seen combat in Korea and earned a Purple Heart.
Defense counsel asked the district court to instruct the jury to
disregard that testimony because he feared that the jury might
penalize the defense for wrongly assailing a war hero.
Although the court granted defense counsel’s request, the
court’s instruction to the jury referred to Swisher’s lapel pin
as a “Purple Heart Medal” and a “military commendation.”

Defense counsel’s efforts to impeach Swisher at the origi-
nal trial focused on the fact that Swisher and Hinkson, who
were once friends, were now bitter enemies who had sued and
counter-sued each other. On retrial, impeachment of Swisher
would not be so limited. The parties now know conclusively,
based on the Miller and Woodring affidavits, that Swisher
forged his “replacement DD-214” and his purported “support-
ing letter” from Colonel Woodring, and that he used these
forged documents in an effort to obtain veterans’ benefits.
The parties also now know conclusively that Swisher never
served in combat or earned any personal military commenda-
tions, and that he was not injured in battle overseas but in a
private automobile accident near Port Townsend, Washington.
And they now know conclusively that Swisher lied under oath
during the first trial about participating in secret combat mis-
sions in North Korea, about being wounded in action, and
about receiving a Purple Heart.
15060 UNITED STATES v. HINKSON
At a new trial, the government could put Swisher on the
stand to testify, as he did at the original trial, that he told
Hinkson that he was a decorated Korean War veteran who had
killed “too many” people. The government could then argue
that Hinkson, believing these things, seriously solicited
Swisher to kill three government officials. But this time, on
retrial, defense counsel and the government would know the
truth.

Defense counsel would impeach Swisher by asking if it
was true that he was not in fact a Korean War veteran; that
he had in fact not won a Purple Heart or other awards; that he
had not in fact been injured in combat in Korea but rather in
a private automobile accident; and that in fact he had lied to
the Idaho Division of Veterans Services about his injuries and
non-existent medals in an attempt to get military benefits to
which he was not entitled. That would already be bad enough,
but it would get worse.

Defense counsel would also ask Swisher whether, the last
time he appeared in court to testify under oath against Hink-
son, he wore a Purple Heart lapel pin to which he was not
entitled, presented a forged “replacement DD-214,” and lied
about his military record. This time, defense counsel would
not be left defenseless if Swisher were to choose to lie in
response to these questions because this time the government
would also know the truth. If Swisher were to lie in response
to any of the questions, the government would be obligated to
correct the record. See Napue, 360 U.S. at 269; Hayes v.
Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).

In short, a new trial would be a disaster for the government.
A new jury would not only learn, as the first jury did, that
Swisher and Hinkson, once friends, had become bitter ene-
mies by the time Swisher testified. It would also learn, as the
first jury did not, that Swisher had no compunction about
lying under oath to serve his ends, and that he had lied under
oath and produced forged documents at Hinkson’s first trial.
 UNITED STATES v. HINKSON 15061
I therefore conclude, under the fifth part of the Harrington
test, that a new trial would probably result in acquittal.

6. Summary

Because Hinkson’s motion met all five requirements of the
Harrington test, I would hold that he is entitled to a new trial
on the Swisher-related counts of soliciting murder.

Conclusion

The district court committed two errors, either of which
was sufficient to reverse its decision and grant Hinkson a new
trial. I would reverse the district court’s denial of Hinkson’s
motion for a new trial because the district court erroneously
precluded Hinkson from introducing documents into evidence
to show that Swisher lied about his military record and forged
his “replacement DD-214.” I would also reverse the district
court’s denial of the motion for a new trial because the newly
discovered evidence produced in support of the motion satis-
fies the five-part Harrington test.