concurring separately:
While I agree that Schaffer’s petition for rehearing should be denied on the ground that the panel decision correctly held defense counsel failed to exercise due diligence in attempting to procure Espy’s testimony, I do not believe we should uphold the -district court’s finding that Espy’s testimony, had the jury heard it, would likely have led to Schaffer’s acquittal. This trial record reveals no “confusing testimony and events.” See Edwards Op. at 286 (quoting Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 848 (D.C.Cir.1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982)). Nor was the district court called upon to assess the “believability” or “credibility” of Espy’s testimony. See id. at 286. The district court’s role was simply to determine whether largely irrelevant evidence would have persuaded the jury to render a different verdict. And I continue to believe the district court got it wrong.