                                                      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,* Presiding

                    Argued and Submitted
               May 7, 2007—Seattle, Washington

                        Filed May 30, 2008

    Before: Procter Hug, Jr., M. Margaret McKeown, and
            William A. Fletcher, Circuit Judges.

            Opinion by Judge William A. Fletcher;
                 Dissent by Judge McKeown




  *Richard C. Tallman, U.S. Circuit Judge for the Ninth Circuit, sitting
by designation.

                                 6093
6098               UNITED STATES v. HINKSON
                          COUNSEL

Dennis P. Riordan, Riordan & Riordan, San Francisco, Cali-
fornia, Curtis R. Smith, Idaho Falls, Idaho, for the appellant.

Michael D. Taxay, Counter-Terrorism Section, Alan Hecht-
kopf, and Elissa Hart, Tax Division, United States Depart-
ment of Justice, Washington, D.C., for the appellee.


                          OPINION

W. FLETCHER, Circuit Judge:

   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.

   On appeal, Hinkson makes three arguments. First, he
argues that the district court wrongly precluded him from
introducing evidence showing that Swisher presented a forged
document and lied on the stand. Second, he argues that the
                  UNITED STATES v. HINKSON               6099
prosecutor engaged in misconduct when he invoked Swisher’s
military service in his closing argument despite having sub-
stantial reason to suspect that Swisher had not been truthful.
Third, he argues that he is entitled to a new trial based upon
his discovery after trial of evidence that conclusively estab-
lishes Swisher’s fabrications.

   We agree with Hinkson’s third argument. Because Hink-
son’s conviction substantially rests upon the testimony of a
witness who had been conclusively shown, by the time Hink-
son moved for a new trial, to be a forger and a liar, we hold
that the district court abused its discretion in denying Hink-
son’s motion for a new trial. We do not reach Hinkson’s first
and second arguments.

                      I.   Background

   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 appeals his conviction on those charges
in a companion case. We affirm that conviction in a separate
memorandum disposition.

   The superseding indictment in this case contained eleven
counts. Counts 1-6 charged that Hinkson, in violation of 18
U.S.C. § 373, sought to persuade an acquaintance named
James Harding to murder Cook, Hines and Lodge, first in Jan-
uary 2003 (Counts 1-3) and again in March 2003 (Counts 4-
6). Counts 7-9 charged that Hinkson, again in violation of 18
U.S.C. § 373, sought in December 2002 or January 2003 to
persuade Swisher to murder Cook, Hines and Lodge. 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.
6100              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. Because this appeal
involves only the Swisher-related counts, we focus our dis-
cussion on them.

   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
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 murder-
ing 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. Rather, the prosecutor asked only what had been his
branch of service and what he had told Hinkson about his mil-
itary 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. He testified further that he
discussed his military exploits with Hinkson on several occa-
sions and told Hinkson that he had been in combat in Korea
as a Marine. According to Swisher, Hinkson asked whether he
had ever killed anyone, to which Swisher said he responded,
“Too many.”

  Swisher testified that on various occasions in 2001 and
early 2002, he and Hinkson discussed Hinkson’s legal prob-
lems, particularly a civil suit brought against Hinkson by a
                   UNITED STATES v. HINKSON                6101
former WaterOz employee. Swisher testified that Hinkson
expressed “considerable” anger toward the employee’s law-
yer, 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 and Swisher had further con-
versations. According to Swisher, Hinkson “was extremely
hostile 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 Hink-
son 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 that January 2003 exchange, the two men had a
serious falling out, eventually resulting in a lawsuit and a
nasty feud. Swisher testified that sometime after April 2003
6102               UNITED STATES v. HINKSON
he reported Hinkson’s solicitations to a local Idaho prosecu-
tor. At the time of his testimony at Hinkson’s trial in January
2005, Swisher was a bitter enemy.

   On cross examination, defense counsel did not initially
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 stated as a fact 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                   6103
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:
6104              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?
                   UNITED STATES v. HINKSON                6105
       [THE PROSECUTOR]: I have a copy.

      [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,
6106              UNITED STATES v. HINKSON
NAVY AND MARINE CORPS COMMENDATION
MEDAL W/ BRONZE ‘V’.” In box 27, immediately below,
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 this
court.)

  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:
                UNITED STATES v. HINKSON                   6107
    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.

    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:

     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.
6108               UNITED STATES v. HINKSON
       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
    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
                  UNITED STATES v. HINKSON                   6109
obtained information suggesting that the document Swisher
had taken from his pocket while on the witness stand — the
“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 Record-
er’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.
6110                UNITED STATES v. HINKSON
   Two days later, on Friday morning, January 21, again out-
side the presence of the jury, the prosecutor provided a photo-
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 letter 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, January 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
our queries during oral argument, the government’s attorney
sent us a post-argument letter stating that he had “been
informed that investigating agents on the prosecution 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.” (Emphasis added.) 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 had earlier con-
tacted the Personnel Management Support Branch of Marine
Corps Headquarters, after Swisher attempted to use his “re-
                  UNITED STATES v. HINKSON                  6111
placement DD-214” to obtain veterans’ benefits from the
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
6112               UNITED STATES v. HINKSON
    changed the name of the award to the Navy Com-
    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 that same day, 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 sub-
poena. The official military file contained a copy of the Dow-
ling letter. Its presence in the file was not surprising, for the
Dowling letter 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.” The 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.
                   UNITED STATES v. HINKSON                 6113
   The official file also contained the two documents that
Keeley had sent to Dowling for evaluation. One of the docu-
ments was a copy of the “replacement DD-214” purportedly
signed by Capt. W. J. Woodring, Jr., that Swisher had pulled
out of his pocket on the witness stand. The other document
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 that a
“quick review of the file indicates that Mr. Swisher was, in
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 went through Swisher’s official military file with coun-
6114               UNITED STATES v. HINKSON
sel off the record. Then, on the record and without the jury
present, the court stated its conclusions. The file had been sent
to the court by the National Personnel Records Center in
response to the court’s subpoena; the Dowling letter in the file
matched the letter provided to the court by the prosecution on
Friday; and the Dowling letter concluded that the “replace-
ment DD-214” and the “supporting letter” purportedly signed
by Woodring were “not authentic.” But the court found the
file “very difficult 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:

       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
                   UNITED STATES v. HINKSON                 6115
    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. Counsel reiterated that Swisher had worn
a Purple Heart on the witness stand.

   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
6116               UNITED STATES v. HINKSON
    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]
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 any of the documents bearing on his
military experience:

      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).

       ....

       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
                  UNITED STATES v. HINKSON                   6117
    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, defense counsel informed the court that,
under the conditions imposed by the court, 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
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
6118               UNITED STATES v. HINKSON
    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. Just over a month later, on March 3, 2005,
defense counsel moved for a new trial pursuant to Federal
Rule of Criminal Procedure 33 on a number of grounds. Inter
alia, the motion relied on “newly discovered evidence” that
Swisher had produced a forged document in court and had
lied under oath on the witness stand. That evidence consisted
of an affidavit from Chief Warrant Officer W.E. Miller, the
Marine Corps liaison to the National Personnel Records Cen-
ter, and an 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 “replace-
ment DD-214,” and on the purported “supporting letter” for
the “replacement DD-214.”
                  UNITED STATES v. HINKSON                    6119
   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
         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
6120              UNITED STATES v. HINKSON
         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
         designee of the Commandant of the Marine
         Corps who offices at Headquarters. Capt. Woo-
         dring 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
                   UNITED STATES v. HINKSON                  6121
         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 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
         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”
6122               UNITED STATES v. HINKSON
          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 newly discovered evidence. First, the court concluded that
Hinkson had not been diligent in seeking the evidence he now
submitted to the court. Second, the court concluded that the
evidence was not “newly discovered” because “[t]he sub-
stance of both proffered documents is not new and is gener-
ally cumulative of previously available information.” 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 evi-
dence is inadmissible.” The court explained that it had “previ-
ously held on the record at trial . . . and now reiterates,
admission of the proffered documents and testimony 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
                   UNITED STATES v. HINKSON                 6123
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 1001(a)(3); and for presenting false testi-
mony 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 gov-
ernment indicted Swisher more than two years after the dis-
trict 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 come
down 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. We also do not con-
sider them in reaching our decision today.

                 III.   Motion for New Trial

   On appeal to this court, Hinkson moves for a new trial
based on three arguments. First, Hinkson argues that the dis-
trict court erred in precluding him from introducing evidence
to show that Swisher lied about his military record and forged
his replacement DD-214. Second, Hinkson argues that the
prosecution engaged in misconduct by referring to Swisher’s
military background during its closing argument despite the
doubts that had been raised about the veracity of Swisher’s
testimony. Third, Hinkson argues that he is entitled to a new
trial, because, based on the new evidence, it is now undis-
puted that Swisher proffered a forged document and testified
falsely in court. We reach only the third argument.

  Hinkson’s motion for a new trial asserted that the Miller
and Woodring affidavits proved conclusively that Swisher
had presented a forged document and had lied under oath. The
government does not now dispute that the “replacement DD-
6124               UNITED STATES v. HINKSON
214” was forged and that Swisher lied about his military
experience. It contends, however, that Hinkson has not satis-
fied the standard for obtaining a new trial.

   We review a district court’s denial of a motion for a new
trial based upon newly discovered evidence for abuse of dis-
cretion. 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).

   [1] 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),
                      UNITED STATES v. HINKSON                       6125
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.

   [2] The character of the defendant’s newly discovered evi-
dence determines how strictly we apply the Harrington test’s
probability requirement. Our usual rule is that newly discov-
ered 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
evidence suggesting that evidence presented at the defen-
dant’s trial may have been false. See Krasny, 607 F.2d at 842.1

   We conclude that Hinkson has satisfied all five parts of the
Harrington test. The dissent concludes that Hinkson has satis-
fied none of them. In form, the dissent is in two parts. The
first part discusses the likelihood that a new trial will result
in an acquittal. Diss. at 6169-74. The second part discusses
the five Harrington requirements. Id. at 6174-83. Because the
likelihood of an acquittal on retrial is the fifth Harrington
  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. Director
of Corrections, 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 we hold that Swisher is entitled to a new trial under the
Harrington test, it is unnecessary to apply this test.
6126                UNITED STATES v. HINKSON
requirement, we respond to the first part of the dissent in our
discussion of that fifth requirement.

               A.   Newly Discovered Evidence

   [3] Under the first part of the Harrington test, we must
determine 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 affi-
davit from Chief Warrant Officer Miller, the Marine Corps
liaison to the National Personnel Records Center; and (2) the
affidavit from Colonel Woodring, the officer whose purported
signature appeared on Swisher’s “replacement DD-214” and
“supporting letter.” It is undisputed that neither piece of evi-
dence was known to or in the possession of the defense (or the
government) until after Hinkson’s trial had concluded. This
evidence thus qualifies as “newly discovered.”

   The dissent disagrees. It concedes that both the Miller affi-
davit and the Woodring affidavit are newly discovered evi-
dence, stating that “it goes without saying” that “they were
not procured until after trial.” Diss. at 6176-77 (emphasis in
original). But the dissent contends that this is a “superficial
analysis” because “[a]s the district court noted, ‘the substance
of both proffered documents is not new.’ ” Id. In contending
that the “substance” of the new documents is not new, the dis-
sent is contending that their substance was already known. In
other words, the dissent is saying that the evidence contained
in the documents is merely cumulative of evidence that was
already known. That argument is properly addressed to the
third Harrington requirement. We address that argument in
detail below. We respond only briefly here.

   [4] The dissent’s contention would be more persuasive if
the district court had not clearly indicated during trial that, in
its view, the existing evidence was insufficient to show that
Swisher had lied about his military record and awards. After
reading the half-inch-thick file received on January 21 from
                   UNITED STATES v. HINKSON                  6127
the National Personnel Records Center, the district court con-
cluded, “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.” It concluded by saying
that it could not resolve its uncertainty without “hearing
from” a military “records custodian” or similar person. The
prosecutor added that what was needed in order to show the
falsity of the “replacement DD-214” was an affidavit from
Colonel Woodring stating that his signature had been forged.

   [5] As we will discuss in more detail below, the proffered
documents — the Miller and Woodring affidavits — were
precisely the evidence that the district court and the prosecu-
tor on January 21 had described as fatally lacking. The Miller
affidavit provided precisely the explanation the district court
had said it needed to “decipher” the documents in Swisher’s
file. The Woodring affidavit was precisely the evidence the
prosecutor had said was needed to prove the falsity of the
replacement DD-214. Given this background, it is impossible
to conclude that the “substance” of the Miller and Woodring
affidavits was not new.

                         B.   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, mindful of the constraints and compet-
ing pressures on the defense before and during trial, a court
asks whether it was unreasonable for the defense to have
failed to discover the evidence more promptly. “All that is
required is ordinary diligence, not the highest degree of dili-
gence.” 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,
6128                UNITED STATES v. HINKSON
“[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 in 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.” It is true, as the district court wrote, that
Swisher gave grand jury testimony in 2002 and early 2004.
But the district court was wrong to rely on the dates of the
grand jury testimony. 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.”
However, precisely because it was grand jury testimony, that
testimony was kept from Hinkson. The government finally
turned Swisher’s grand jury testimony over to Hinkson pursu-
ant to the Jencks Act. It did so on January 4, 2005, one week
before trial.

   [6] On January 14, when defense 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, 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 his pocket, defense
                   UNITED STATES v. HINKSON               6129
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.) Thus, we know from the trial transcript
that the defense began to look into Swisher’s military record
immediately after his deposition. We also know that govern-
ment military authorities, over whom defense counsel had
“very little control,” had been slow to respond.

   [7] In our view, defense counsel were diligent in looking
for evidence that could be used to impeach Swisher. Indeed,
counsel 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 Mil-
itary Awards Branch . . . , and that office has stated that his
record fails to show that he was ever recommended for or
awarded any personal decorations.”

  Defense 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
6130               UNITED STATES v. HINKSON
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.

   [8] The court kept Swisher’s military file to review over the
weekend, and then disclosed it to counsel on Monday, Janu-
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 one month after trial. See Fed. R. Crim.
P. 33(b)(1) (providing that motions for a new trial “grounded
on newly discovered evidence must be filed within 3 years
after the verdict” (emphasis added)).

   Even though the government had its own duty to investi-
gate Swisher’s military record, having been alerted “of the
real possibility of false testimony,” Bowie, 243 F.3d at 1118,
the government fared far worse than defense counsel. Because
it had participated in the grand jury proceedings, the govern-
ment knew long before defense counsel that Swisher had
given inconsistent testimony about his military experience.
Swisher’s first grand jury testimony was in April 2002, more
than two and a half years before Hinkson’s trial. The govern-
ment’s suspicions eventually led to its discovery of the Dow-
ling letter. Government prosecutors maintain that they did not
obtain the Dowling letter until sometime shortly before they
gave it to the court on the morning of January 21. So far as
                   UNITED STATES v. HINKSON                 6131
the record shows, the government was never able to obtain
expert analysis of Swisher’s military file other than the Dow-
ling letter and was never able to locate Colonel Woodring.

   The defense’s strategic decision not to recall Swisher to the
stand for further cross examination at the end of the defense
case does not alter our conclusion that defense counsel acted
diligently. The diligence requirement is addressed to diligence
in discovering evidence, not to strategic decisions about how
to use evidence already in hand. But even if the diligence
requirement were expanded to cover a strategic decision not
to recall Swisher, we believe that defense counsel’s decision
was eminently sound. Under the conditions imposed by the
district court, further cross examination of Swisher would not
have helped the defense to uncover or to present to the jury
evidence showing Swisher’s fabrications. The district court’s
ruling precluded the defense from introducing into evidence
any of the documents received by the court in response to its
subpoena, including the Dowling letter. Having already been
embarrassed once by Swisher, defense counsel was under-
standably reluctant to attempt another cross examination
under the conditions imposed by the court. While the defense
might possibly have managed to create some doubt in the
mind of jurors about Swisher’s truthfulness, there was a sig-
nificant possibility that Swisher would have defended himself
with additional fabrications, leaving the jury with the impres-
sion that the defense was making further unfounded attacks
on a decorated war hero.

   The dissent contends that the district court did not clearly
err in finding that Hinkson was not sufficiently diligent in dis-
covering the new evidence. The dissent would be on firmer
ground if the district court had not relied on the fact that
Swisher had mentioned his battlefield injuries during his
grand jury testimony in 2002 and 2004. This was clear error
by the district court. Because grand jury testimony is secret,
Hinkson could not have known about it in 2002 and 2004.
Only the government knew about it, and the government did
6132                UNITED STATES v. HINKSON
not reveal the grand jury testimony to Hinkson until a week
before trial.

   The dissent further contends that Hinkson was not diligent
because he could have subpoenaed witnesses to testify at trial
about Swisher’s military record. This contention is fanciful.
The district court made it quite clear that, in its view, the dis-
pute over Swisher’s military record concerned a collateral
impeaching matter, and that Hinkson would not be permitted
to introduce anything into evidence that would show that
Swisher had lied about his military record, including docu-
ments from Swisher’s official personnel file. It also stated
clearly that it did not want government experts testifying
about Swisher’s records. If the district court would not allow
into evidence documents from Swisher’s personnel file
because they addressed a collateral issue, and if it did not
want testimony from government experts, it is obvious that it
would not have permitted live testimony of defense experts on
that same issue.

              C.   Material to the Issues at Trial

   [9] 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, materi-
ality has a special meaning. Materiality under Harrington
does not require that the evidence in question would have
been material at the original trial. Rather, materiality under
Harrington requires that the evidence in question will materi-
ally alter the result on retrial. In many cases, there will be lit-
tle or no practical difference. See, e.g., United States v.
George, 420 F.3d 991, 1001 (9th Cir. 2005) (analyzing mate-
riality in terms of the first trial). But the Harrington test is
clearly framed in terms of what will happen on retrial rather
than what happened at the original trial. See Harrington, 410
F.3d at 601 (“[T]he evidence must indicate that a new trial
would probably result in acquittal[.]”); see also Krasny, 607
F.2d at 844 (“Yet, we have always required a showing that the
                   UNITED STATES v. HINKSON                  6133
new evidence would ‘probably’ result in an acquittal upon a
new trial.”) and 845 n.3 (explaining that materiality and prob-
ability “are really two means of measuring the same thing”).
As we discuss below, in addressing Harrington’s fifth
requirement, we conclude that the newly discovered evidence
of Swisher’s fabrications makes it probable that a new trial
will result in acquittal. Thus, we also conclude that the new
evidence is material under Harrington.

   [10] Relying on United States v. Davis, 960 F.2d 820 (9th
Cir. 1992), the dissent contends that the Miller and Woodring
affidavits are not material because they address a “collateral
issue.” Diss. at 6181. Specifically, the dissent quotes from the
following sentence in Davis: “Ordinarily, evidence impeach-
ing a witness will not be material under Walgren [an earlier
version of Harrington] because it will not refute an essential
element of the government’s case.” Davis, 960 F.2d at 825. In
the dissent’s view, impeaching evidence is necessarily evi-
dence that relates to a “collateral issue” and is therefore not
material. However, we explicitly recognized in Davis that
impeaching evidence can be material in a new trial motion.
For example, we wrote, “[T]he newly discovered impeach-
ment evidence may be so powerful that, if it were to be
believed by the trier of fact, it would render the witness’ testi-
mony totally incredible.” Id.

   Further, the dissent relies on evidentiary rulings made by
the district court. The dissent notes that the district court held
that impeaching documents relating to Swisher’s military
record were inadmissible under Federal Rule of Evidence
608(b). The dissent further notes that the district court
excluded the evidence under Rule 403. The dissent concludes,
“These evidentiary rulings also undermine the defense’s claim
that impeachment of Swisher’s military record will blossom
into substantive evidence at a new trial.” Diss. at 6183.

  Although the district court’s evidentiary ruling under Rule
403 was almost certainly not an abuse of discretion, its ruling
6134               UNITED STATES v. HINKSON
under Rule 608(b) was almost certainly legal error. Rule
608(b) forbids the introduction of extrinsic evidence for the
purpose of attacking a witness’s credibility. But evidence con-
tradicting a witness’s statement is not barred by Rule 608(b).
If Swisher had not worn the Purple Heart pin onto the witness
stand, the district court’s ruling under Rule 608(b) would have
been correct. But Swisher came onto the witness stand wear-
ing a Purple Heart lapel pin, thereby indicating that he had
been wounded in combat while serving in the United States
armed forces. Under Rule 801(a), “[a] ‘statement’ is . . . non-
verbal conduct of a person, if it is intended by the person as
an assertion.” In his opening statement to the jury, the prose-
cutor had described Swisher as a “combat veteran.” Particu-
larly given the prosecutor’s statement, it is difficult to
interpret Swisher’s wearing of the Purple Heart as anything
other than “nonverbal conduct . . . intended . . . as an asser-
tion.”

   [11] The dissent appears to suggest that because the district
court properly excluded the impeaching documents from evi-
dence under Rules 608(b) and 403, these documents could
have no material effect on retrial. Even if this were true
(which it almost certainly is not with respect to Rule 608(b)),
this is irrelevant under Harrington. The test under Harrington
is not (to use the dissent’s words) whether the newly discov-
ered documents impeaching Swisher go to a “collateral
issue”; not whether the documents were or would be “inad-
missible extrinsic evidence” under Rule 608(b); and not
whether the documents will “blossom into substantive evi-
dence.” The materiality test under Harrington is whether the
newly discovered evidence — the Miller and Woodring affi-
davits — would probably result in acquittal on retrial.

   [12] As we discuss in detail in part five of the Harrington
test, we conclude that the Miller and Woodring affidavits
indeed would probably result in acquittal on retrial. The affi-
davits would not even have to be admitted into evidence to
have this effect. Now that both sides conclusively know the
                   UNITED STATES v. HINKSON                 6135
truth, if Swisher is asked about his military record, and is
asked whether he lied under oath about that record at the first
trial, the truth will come out. Now that the truth is known,
Swisher may decide to give a truthful answer. Or, if Swisher
tries to lie again, the government will have a professional
obligation to correct the record.

      D.   Neither Cumulative nor Merely Impeaching

  The fourth part of the Harrington test requires that the new
evidence be “neither cumulative nor merely impeaching.”

                        1.   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 are the docu-
ments 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 remain-
der 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 the “replacement DD-214” was
fraudulent nor that Swisher’s testimony was false. 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
6136               UNITED STATES v. HINKSON
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 court remained uncertain at trial about the truthfulness
of Swisher’s testimony and the authenticity of the “replace-
ment DD-214,” despite the fact that Swisher’s military file
was a government record that the court itself had subpoenaed,
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 the
“replacement DD-214” was a forgery and that Swisher had
not earned any personal military commendations. Another
factfinder may have found this evidence sufficient to establish
that Swisher was a forger and a liar. But we accept the district
court’s judgment that the evidence then before it was incon-
clusive.

  [13] The district court stated during trial 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 military 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 the defense in its motion for a new trial in the
                   UNITED STATES v. HINKSON                  6137
form of the affidavit from Chief Warrant Officer Miller. Mil-
ler is the U.S. Marine Corps “Liaison Officer to the National
Personnel Records Center.” His job is to “evaluate the authen-
ticity of information, records and documents affecting indi-
vidual 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 commen-
dation.

   [14] Similarly, precisely the additional evidence the prose-
cutor said was lacking was supplied in the form of the affida-
vit from the now-retired Colonel Woodring. As it turned out,
possibly to the prosecutor’s surprise, Colonel Woodring is
indeed “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.

   [15] 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. We conclude that, in this
circumstance, this new evidence was not cumulative.

   The dissent concludes that the Miller and Woodring affida-
vits are cumulative because “the Tolbert letter and the Dow-
ling letter . . . established . . . that the replacement DD-214
was a forgery and that Swisher had lied about receiving mili-
tary awards.” Diss. at 6183. As we noted above, the dissent
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 dissent now says. As we 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 replacement DD-214 was a forgery and that Swisher
6138               UNITED STATES v. HINKSON
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 cumula-
tive.

                   2.   Merely Impeaching

   [16] The fourth part of the Harrington test states that a
defendant must show that the newly discovered evidence is
not “merely impeaching.” We have expressly rejected the
proposition that “impeachment evidence . . . is never suffi-
cient to warrant a new trial under Fed. R. Crim. P. 33.” Davis,
960 F.2d at 825 (emphasis in original); see also United States
v. Wallach, 935 F.2d 445 (2d Cir. 1991) (as amended) (con-
cluding that new evidence impeaching the government’s cen-
tral witness was powerful enough to require a new trial);
United States v. Taglia, 922 F.2d 413, 415 (7th Cir. 1991)
(explaining that the prohibition on using impeachment evi-
dence 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 evidence for the sole rea-
son that the evidence was ‘merely impeachment’ might often
lead to injustice.”).

   [17] We recognized in Davis that enforcing a per se prohi-
bition on impeachment evidence as the basis for a new trial
would be inconsistent with the spirit of Rule 33, which “per-
mits the granting of a new trial motion ‘if required in the
interest of justice.’ ” Davis, 960 F.2d at 825. A per se prohibi-
tion 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
exculpatory and impeachment evidence in the Brady context);
Napue v. Illinois, 360 U.S. 264, 269 (1959) (refusing to dis-
tinguish between exculpatory and impeachment evidence in
cases involving prosecutorial misconduct). Accordingly, we
                   UNITED STATES v. HINKSON                  6139
recognized 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’ tes-
timony were uncorroborated and provided the only evidence
of an essential element of the government’s case, the
impeachment evidence would be ‘material’ under [the Har-
rington test].” Davis, 960 F.2d at 825; 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 wit-
ness was “utterly unworthy of being believed because he had
lied consistently in a string of previous cases”); 3 Wright et
al., supra, § 557, at 560, 563 (noting that impeachment evi-
dence is usually “not sufficient to justify a new trial,” but that
this is not an “invariable rule,” and “in flagrant cases it may
suffice”).

   [18] In its order denying Hinkson’s new trial motion, the
district court wrote that “the proffered evidence [i.e., the Mil-
ler 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 mistakenly believed that
impeachment evidence may never provide the basis for a new
trial. Our cases do not so hold. The relevant question under
Harrington is whether the newly discovered evidence makes
it probable that a new trial would result in acquittal.

   The dissent relies on Davis to conclude that the Miller and
Woodring affidavits are impeaching and therefore cannot sat-
isfy the fourth requirement of Harrington. It relies on the sen-
tence from Davis, quoted above, stating that if the impeached
witness’s testimony was “uncorroborated and provided the
only evidence of an essential element of the government’s
case,” impeachment evidence would satisfy Harrington.
Davis, 960 F.2d at 825; diss. at 6183. The dissent writes, “But
that circumstance does not describe the evidence here.” Id.
The dissent is wrong.
6140                UNITED STATES v. HINKSON
   An essential element of the government’s case was that
Hinkson solicited Swisher to murder Cook, Hines and Lodge.
See 18 U.S.C. § 373. To qualify as a solicitation under § 373,
the defendant must have had an “intent” that the object of the
solicitation actually be carried out. Id. at § 373(a). That is, the
solicitation must have been serious.

   There was ample evidence presented at trial that Hinkson
asked many people, not only Swisher, to murder Cook, Hines
and Lodge. However, the question before us is not whether
Hinkson solicited someone else to commit murder. The ques-
tion is whether Hinkson solicited Swisher to commit murder
within the meaning of § 373. On that precise question,
Swisher was the only witness.

   As we describe in detail in the next section, the government
contended that Hinkson seriously solicited Swisher to commit
murder. The first solicitation was to kill Albers, but that solic-
itation was not charged in the indictment. The second and
third solicitations, which were charged in the indictment, were
to murder Cook, Hines and Lodge. Swisher testified unam-
biguously that there were no corroborating witnesses who
would have been able to confirm that any of these solicita-
tions were serious. According to Swisher’s explicit testimony,
all three solicitations were “in private.” Because the solicita-
tions to murder Cook, Hines and Lodge were made “in pri-
vate,” there was by definition no corroborating witness to an
essential element of the government’s case.
UNITED STATES v. HINKSON            6141
                           Volume 2 of 2
6142               UNITED STATES v. HINKSON
           E.   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.” The dissent summarizes and characterizes the evidence
presented at trial in an effort to show that a new trial would
probably not result in an acquittal. In our view, the dissent has
provided an incomplete and misleading description of the evi-
dence. The dissent complains that “in an effort to reconstruct
the trial from the bottom up and in hindsight, the majority
goes to great lengths to marshal the evidence, vigorously
arguing the facts and the inferences from those facts.” Diss.
at 6169. But because of the record-intensive nature of the
inquiry required under Harrington, and because of the incom-
plete and misleading description of the evidence provided by
the dissent, we have little choice but to describe the evidence
in detail. We apologize to the reader in advance for the length
of the discussion.

   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.
                   UNITED STATES v. HINKSON                6143
   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 various
people to kill Cook, Hines and Lodge. The evidence was per-
suasive that he had done so. The issue was whether Hinkson
had been serious. That is, the issue was whether he had an
actual “intent” that Cook, Hines and Lodge be killed. 18
U.S.C. § 373(a). Only if Hinkson had been serious in solicit-
ing the murder of Cook, Hines and Lodge had he committed
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. In order
to assess the likelihood of an acquittal on retrial on the three
Swisher-related counts (Counts 7-9), it is useful to examine
the evidence on which Hinkson was acquitted on the three
Harding-related counts (Counts 1-3).

   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 invented by Hinkson, very
small particles of minerals such as gold and platinum.
6144               UNITED STATES v. HINKSON
According to Hinkson, the water has marvelous medicinal
properties. He advertised and sold the 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, we affirm today Hinkson’s criminal conviction on
his tax and currency structuring offenses.) Hinkson was unsta-
ble and paranoid. Hinkson was continually worried that peo-
ple, 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 Novem-
ber 2002, Hinkson repeatedly claimed that they had tried to
murder him. Hinkson also repeatedly claimed that an attorney
named Dennis Albers, who previously 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 the children of
Cook and Hines.

            1.   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
                   UNITED STATES v. HINKSON                6145
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 was had been “comedy shows, morning shows,
afternoon drive, entertainment.” His last radio work was three
years before he testified.

   After the “health forum,” Hinkson, Harding, Bates and sev-
eral 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 saying
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 man-
ner, 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
6146               UNITED STATES v. HINKSON
he say it was a joke?” She answered, “He did not say it was
a joke, no.”

   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. 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
    coming 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?

    ...
                  UNITED STATES v. HINKSON                   6147
    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 while Hinkson did not seem to know much about
guns, 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?
6148                UNITED STATES v. HINKSON
    A.   Yes.

   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 fed-
    eral 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.
                   UNITED STATES v. HINKSON               6149
  The second time Hinkson offered Harding money, the two
men were driving to the bank. Harding testified that Hinkson
had $10,000 with him.

    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.

         2.   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 Hinkson
on these counts.

   We have already described much of the evidence support-
ing Counts 7 through 9. We recount it here in more detail to
facilitate 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?
6150               UNITED STATES v. HINKSON
    A.    I turned 68 yesterday.

    Q.    You live in Idaho?

    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 ser-
    vice in the Armed Forces?
                  UNITED STATES v. HINKSON                  6151
    A.   Yes.

    Q.   What branch did you serve in?

    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 expert
with firearms:
6152               UNITED STATES v. HINKSON
    Q. Did you ever claim to Mr. Hinkson that you had
    proficiency with firearms?

    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, some-
    time 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 gentle-
    man.

    ...

    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.
                  UNITED STATES v. HINKSON                     6153
    Q.   How was Mr. Hinkson’s shooting?

    A.   Not terribly good.

    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
6154              UNITED STATES v. HINKSON
    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
    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 tell-
    ing 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
                   UNITED STATES v. HINKSON                   6155
    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, 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 con-
    tinue 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?
6156                 UNITED STATES v. HINKSON
    A. He wanted them all treated the way that the ini-
    tial offer regarding Albers and his family had been
    handled.

    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?
                  UNITED STATES v. HINKSON                    6157
    A. Yes, I did. I’m afraid I became a bit hostile,
    myself, at that point in time.

    Q.    What did you say?

    ...

    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 ask-
    ing 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?
6158              UNITED STATES v. HINKSON
    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.

    A.   I might be wrong.

    Q.   And who did you contact?

    A. I contacted the Idaho County Assistant Prosecu-
    tor 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.
                   UNITED STATES v. HINKSON               6159
    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.

   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 “replace-
ment DD-214,” filled eighty-three pages. During this cross
examination, Swisher made clear that on the three occasions
when Hinkson solicited him to kill Albers, Cook, Hines and
Lodge, there were no witnesses: “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 extreme
hostility had arisen after Hinkson’s supposed solicitations of
Swisher to commit murder, and it had arisen for reasons that
were unrelated to the solicitations. Richard Bellon was one of
Hinkson’s key employees at WaterOz; indeed, the trap shoot-
ing had taken place at Bellon’s house. Sometime in late 2003,
Bellon sued Hinkson for ownership, or partial ownership, of
WaterOz. In response, Hinkson brought Swisher into the suit,
apparently as a third-party defendant. Swisher then counter-
claimed 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 was sitting in an outhouse when, according to his tes-
timony, 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 foot-
prints were ever found.

  Only one witness corroborated Swisher’s testimony that
Hinkson had been interested in, and impressed by, Swisher’s
6160                 UNITED STATES v. HINKSON
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”:

    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 communica-
    tion with Mr. Swisher where you asked him to mur-
    der anyone?

    A.   No, sir.

  Hinkson had a somewhat different recollection of the
excursion to Bellon’s house. According to Swisher, they had
                   UNITED STATES v. HINKSON               6161
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?

    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 successfully hit all of his targets.
Those targets, according to Swisher’s testimony, had been
rapidly moving airborne clay pigeons thirty to forty yards
away.
6162               UNITED STATES v. HINKSON
3.     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-
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 Holding 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 involved conduct that supposedly took
place in January 2003. Counts 7 through 9 involved 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
                   UNITED STATES v. HINKSON                  6163
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 we 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.”

   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 Hinkson’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
6164               UNITED STATES v. HINKSON
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,
Hines and Lodge. 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 offi-
cials. When Swisher finally contacted the local prosecutor, he
and Hinkson 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 Hinkson.

  In three respects the evidence against Hinkson 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 story to
be false. 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 fire-
arms 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, Hinkson 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 story
                   UNITED STATES v. HINKSON               6165
about hitting 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 demonstrated to Hink-
son on that occasion that he was an excellent shot. The jury
could have concluded that an actual demonstration of shoot-
ing 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.

   However, 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 evidence “indicate that a new trial would probably
result in acquittal”?

  [19] In the original trial, Swisher was the only witness to
provide direct evidence that Hinkson solicited him to commit
6166               UNITED STATES v. HINKSON
the killings. On retrial, the government would have no choice
but to rely on Swisher to supply the evidence of Hinkson’s
solicitations. To say that Swisher’s credibility would fare
poorly at a new trial is an understatement. At Hinkson’s origi-
nal 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 Vet-
eran 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 “replace-
ment 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 stricken 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.”

   [20] Defense counsel’s efforts to impeach Swisher at the
original 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 con-
clusively, based on the Miller and Woodring affidavits, that
Swisher forged his “replacement DD-214” and his purported
“supporting letter” from Colonel Woodring, and that he used
these forged documents in an effort to obtain veterans’ bene-
fits. The parties also now know conclusively that Swisher
never served in combat or earned any personal military com-
mendations, and that he was not injured in battle overseas but
in a private automobile accident near Port Townsend, Wash-
ington. And they now know conclusively that Swisher lied
under oath about participating in secret combat missions in
North Korea, about being wounded in action, and about
receiving a Purple Heart.
                   UNITED STATES v. HINKSON                 6167
   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 Hinkson, he wore a Purple Heart lapel pin
to which he was not entitled, presented a forged “replacement
DD-214,” and otherwise 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, 399 F.3d at 978.

   [21] In short, a new trial would be a disaster for the govern-
ment. A new jury would not only learn, as the first jury did,
that Swisher and Hinkson, once friends, had become bitter
enemies by the time Swisher testified. It would also learn, as
the first jury did not, that Swisher has 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.
We therefore conclude, under the fifth part of the Harrington
test, that a new trial would probably result in acquittal.
6168                 UNITED STATES v. HINKSON
                           F.   Summary

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

                         IV.    Conclusion

   [22] We reverse the district court’s denial of Hinkson’s
motion for a new trial. We do not reach Hinkson’s other argu-
ments. We remand to the district court to allow it to vacate
Hinkson’s conviction and sentence on Counts 7-9. Hinkson’s
conviction and ten-year sentence on the tax and currency
structuring charges are not affected by our decision.

  REVERSED AND REMANDED.



McKEOWN, Circuit Judge, dissenting:

   There is no honor in lying about one’s military record.
Indeed, Elven Joe Swisher joins a long line of luminaries
accused of puffing and distorting their military service.1 But
a witness discredited on a collateral issue—his military
service—is not grounds to reverse a murder-for-hire convic-
tion that was corroborated by independent evidence, particu-
larly when defense counsel had full opportunity to cross-
examine the witness on that subject. The question in this case
is whether David Hinkson solicited Swisher to murder a fed-
eral judge and other public officers, not whether Swisher lied
about his military service. The district court determined that
information about Swisher’s military service was not “new”
  1
   See HENRY MARK HOLZER AND ERIKA HOLZER, FAKE WARRIORS:
IDENTIFYING, EXPOSING AND PUNISHING THOSE WHO FALSIFY THEIR MILITARY
SERVICE 15-21 (Xlibris 2003) (citing examples of a member of Congress,
a prominent businessman and others who falsified military records).
                    UNITED STATES v. HINKSON                  6169
evidence, the prosecutor had no advance knowledge of this
information, the defense was not diligent in pursuing this line
of attack, and the defense was afforded ample opportunity to
impeach Swisher.

   In granting a new trial, the majority has assumed the role
of a super trial court rather than a reviewing court. The bot-
tom line is that nowhere does the majority give any deference
to the district court’s detailed findings. Instead, in an effort to
reconstruct the trial from the bottom up and in hindsight, the
majority goes to great lengths to marshal the evidence, vigor-
ously arguing the facts and the inferences from those facts,
and forgetting that “[u]nder the abuse of discretion standard,
we cannot simply substitute our judgment for that of the dis-
trict court[.]” United States v. BNS Inc., 858 F.2d 456, 464
(9th Cir. 1988). I respectfully dissent because the district
court did not abuse its discretion in declining to order a new
trial.

   Reading the majority’s opinion leaves one with the impres-
sion that Swisher’s lies were a focal point of Hinkson’s trial,
and that evidence of his misdeeds would play a pivotal role
in a new trial. Nothing could be further from the truth. Placing
the alleged “new” evidence in context underscores why
impeachment evidence on such an attenuated and collateral
issue does not merit a new trial and why the rules are geared
to avoid a mini-trial on collateral issues. See United States v.
Waggoner, 339 F.3d 915, 919 (9th Cir. 2003) (rejecting evi-
dence cited in support of new trial as “cumulative,
impeachment-related, or both.”).

  THE EVIDENCE AT TRIAL

  After a two-week trial, a jury convicted Hinkson on three
counts charging that Hinkson sought to persuade Swisher to
murder United States District Judge Edward Lodge, Assistant
United States Attorney Nancy Cook, and IRS Special Agent
Steven Hines. More than fifteen witnesses testified at Hink-
6170               UNITED STATES v. HINKSON
son’s trial, including Hinkson himself. At the conclusion of
the trial, the jury was left with no doubt that Hinkson was
enraged at the government for prosecuting him on tax and
currency structuring charges, and that he believed that the
government was colluding with others to destroy his business,
WaterOz, a “miracle water” company. Proud of his compa-
ny’s success and deeply hostile towards anyone who chal-
lenged him, Hinkson was convinced that there was a “fairly
long, lengthy list of people that were in the conspiracy to get
him and take the company away from him.”

   The evidence at trial unequivocally demonstrated that
Hinkson hated Lodge, Cook, and Hines, and his feelings for
them were a matter of public knowledge. After the govern-
ment began its tax investigation, Hinkson filed a civil rights
suit against Cook, Hines, the IRS, and others, seeking $50
million in damages, the return of papers, and an injunction
halting the investigation. When Hinkson was a guest on a
radio show called the “Agitator Hour,” he accused Cook of
forging the grand jury foreperson’s name on the indictment
against him and the judge’s name on a warrant authorizing the
search of WaterOz. He admitted at trial that he drafted an arti-
cle entitled “David Hinkson’s Day of Terror, at the Hands of
Satan’s Foot Soldiers” in which he claimed that Cook and
Hines “orchestrated” a dramatic raid on his house “for the
sole purpose of murdering me and ending the lawsuit that was
filed against them by me in the amount of $50 million dol-
lars.” The evidence made crystal-clear that Hinkson, always
“ranting and raving,” was out to get those who, in his mind,
were out to get him.

   Hinkson knew Swisher well because Swisher, through an
independent testing company, had performed chemical analy-
sis of WaterOz products on an ongoing basis. Swisher testi-
fied that at one point in their relationship, Hinkson called him
his best friend, and promised him twenty acres of land so that
Swisher and his wife could live close to him. According to
Swisher, after telling Hinkson that he had been in the Marine
                   UNITED STATES v. HINKSON               6171
Corps, Hinkson asked him whether he had served in any com-
bat missions. Swisher responded that he had. Hinkson alleg-
edly then asked Swisher whether he had “ever killed anyone.”
Swisher answered that yes, he had. When Hinkson followed
up with the question “how many?” Swisher responded, “Too
many.” Swisher also stated that he had discussed weapons and
guns with Hinkson, and that Hinkson knew that he was an
“expert rifleman [and] pistolman.”

   Critically, witness Richard Bellon corroborated in full
Hinkson’s belief in Swisher’s military achievements. Bellon
was a legal researcher who worked for Hinkson in connection
with the government’s tax investigation. Bellon testified that
Hinkson informed him that Swisher had “an extensive mili-
tary background,” had “been in combat,” and had “killed peo-
ple during the war.” Hinkson also told him that Swisher was
“licensed to carry a gun,” and that Hinkson was interested in
hiring Swisher as a bodyguard “because he was trained.”

   Hinkson also had first-hand knowledge of Swisher’s famil-
iarity with guns and his shooting prowess. In December 2002,
Hinkson invited Swisher to go on a trap-shooting trip with a
visitor from the Ukraine. In testimony that was not refuted at
trial, Swisher stated that he brought his own cache of guns
with him on the trip: a .22 Henry lever-action rifle, a .32
semi-automatic Browning pistol, and a .45 automatic. Swish-
er’s shooting performance was very impressive: he apparently
hit all six of the targets, while Hinkson hit none.

  All of this evidence strongly supports the conclusion that
Swisher’s purported military achievements and gun expertise
made him, in Hinkson’s eyes, the perfect candidate to carry
out a murder-for-hire plan. That Swisher in fact lied about his
military record does not, in any way, alter the conclusion that
Hinkson believed in his lies, and thought of him as capable of
executing a hit. The issue at trial was not whether Swisher
was a decorated veteran (he did in fact serve overseas in the
Marines), but that Hinkson believed that Swisher had the mili-
6172               UNITED STATES v. HINKSON
tary and combat experience necessary to carry out a contract
hit. To be sure, Swisher’s puffed-up misrepresentations and
misdeeds are shocking and offensive. But this collateral issue
fails to undermine other evidence in the record demonstrating
Hinkson’s firm belief in Swisher’s qualifications for the job.

   The record supports a very plausible explanation for Swish-
er’s lies: his desire to continue receiving benefits from the
Veterans Administration under a fraudulent cover story that
he also told his friend Hinkson. The great lengths that Swisher
went to at trial to defend his military record — the bold lies,
the convenient backstory, the forged document — make it
more probable, not less, that Swisher convincingly puffed to
his friend Hinkson, that Hinkson bought the story, and that
Hinkson then solicited Swisher to kill the federal officials.

   Other portions of Swisher’s testimony, corroborated by
Hinkson himself, supported these inferences. According to
Swisher, Hinkson first asked him in April 2002 to torture and
kill Dennis Albers, an attorney who had once won a large
judgment against Hinkson on behalf of a former WaterOz
employee. That Hinkson and Swisher both loathed Albers was
no state secret. When Albers was running for public office in
the fall of 2000, he started an “Unelect Dennis Albers Cam-
paign.” Hinkson also admitted that he had once said about
Albers, “God needs to smite him” because “he was putting
innocent people in jail.” Swisher also had “bad feelings”
towards Albers because he had prosecuted Swisher (unsuc-
cessfully) twenty years before. Swisher acknowledged at trial
that he may have spoken with Hinkson about his hostile feel-
ings for Albers, and possibly participated in Hinkson’s cam-
paign to “unelect” Albers.

   According to Swisher, the first object of Hinkson’s murder-
for-hire scheme was their mutual enemy, Albers. But Swisher
thought Hinkson was kidding, and he told Hinkson unequivo-
cally to knock off talk like that. Only a few months later,
Swisher again solicited Swisher, this time to kill Cook, Hines,
                   UNITED STATES v. HINKSON                 6173
and their families, but Swisher warned Hinkson that he would
report him to the authorities if he brought it up again. By the
third solicitation, Swisher knew that Hinkson was dead seri-
ous. At that point, Swisher reported the solicitation to an
Idaho prosecutor and then the FBI was called in.

   At trial, the defense hit Swisher hard on cross-examination
and repeatedly attacked his credibility. In over eighty pages of
cross-examination, Hinkson’s attorneys explored Swisher’s
credibility with endless efforts to impeach him on different
subjects: his bias (“[Hinkson] needs to discredit me in the
worst way”); his deteriorating relationship with Hinkson (tes-
tifying about an attempt on his life and concluding that it must
have been Hinkson because “no one else [ ] hates me bad
enough”); his credibility (Swisher testified that he would con-
sider killing someone for a half million dollars); and his previ-
ous legal involvement with Hinkson (Swisher admitted that
Hinkson had sued him as a third party in an earlier Idaho state
court civil action, and Swisher filed a cross-claim against
him).

   Swisher’s testimony aside, other evidence presented at trial
cemented the government’s case against Hinkson. Witness
after witness testified to Hinkson’s express, intense desire that
Hines, Cook, and Lodge be tortured and killed. Lonnie Bir-
mingham, a WaterOz employee and close friend of Hinkson,
testified that Hinkson had told him that he “wanted [Cook,
Hines, and Lodge] killed” because “he felt like they were con-
spiring to come after him to destroy him.” Bellon talked with
Hinkson for hours on end about Hinkson’s belief of a govern-
ment conspiracy against him. Bellon described Hinkson’s
anger towards the officials prosecuting him as the “central
focus of his life.” After he violated the terms of his bond in
the tax case, Hinkson told FBI Agent William Long during an
interview that he hoped Cook, Hines, and Lodge would die,
and that he had “vented about Judge Lodge, Nancy Cook,
Steve Hines, and Dennis Albers.” Long also disclosed that
Hinkson admitted telling Harding that “if someone were to
6174               UNITED STATES v. HINKSON
kill them [Cook, Hines, and Lodge], it would be worth
$10,000 to me.”

   Harding’s account of Hinkson’s solicitations was almost
identical to Swisher’s account of his solicitations. Harding
met Hinkson through a mutual friend in late 2002. Harding
testified that in January 2003, Hinkson handed him a large
wad of cash purported to be $10,000, and promised another
$10,000, if Harding killed Lodge, Cook, and Hines. Anne
Bates, a friend of Harding who was in the same room at the
time of the alleged offer, corroborated this account. Over a
three-month period, Hinkson allegedly repeated his offer to
Harding and raved that the officials’ families, and then the
officials themselves, should be tortured before they were mur-
dered. According to Harding, Hinkson once stated that the
officials should be murdered with “multiple shots and then a
kill shot.” Bates also stated that she overheard Hinkson say to
a third party in 2003 that Hines and Cook “should watch their
children be killed,” and that Hinkson “wanted them dead.”

   The jury concluded that Hinkson solicited Swisher because
the evidence compelled that verdict. The credible detail in
Swisher’s testimony, plus other evidence backed up by Hink-
son’s admissions and corroboration from third parties, includ-
ing law enforcement, dispel any notion that Swisher’s military
service was a centerpiece or the linchpin of the trial.

  Appellate Review of Denial of the Motion For New Trial

   Our review of the denial of a motion for new trial is gov-
erned by the long-standing abuse of discretion standard. The
defendant bears a “significant burden” to overcome this stan-
dard. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.
1989). According to our precedent, reversal under this stan-
dard is permissible only when we are firmly convinced that
the district court committed a clear error in judgment. Put
another way, reversal is justified only “when the appellate
court is convinced firmly that the reviewed decision lies
                      UNITED STATES v. HINKSON                        6175
beyond the pale of reasonable justification under the circum-
stances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.
2001). To give texture to this standard, it is critical that we not
only give deference to the district court but engage in some
degree of self-reflection that we are true to our role as a
reviewing court rather than as a trial court.

   In assessing the exercise of discretion, the district court’s
denial of a new trial is benchmarked against the standards in
United States v. Harrington, 410 F.3d 598, 601 (9th Cir.
2005). Harrington sets out five criteria that the moving party
must satisfy to warrant a new trial on the basis of new or
newly discovered evidence: (1) the evidence is newly discov-
ered; (2) the failure to discover the evidence sooner is not
attributable to lack of diligence by the defendant; (3) the evi-
dence is material to the issues at trial; (4) the evidence is nei-
ther cumulative nor merely impeaching; and (5) the evidence
indicates that a new trial will probably result in an acquittal.
Id. (citing United States v. Kulczyk, 931 F.2d 542, 548 (9th
Cir. 1991)). The majority’s de novo conclusions that the dis-
trict court was wrong in evaluating every Harrington factor is
more than a stretch.

   As a general matter, evidence that is “merely cumulative or
impeaching” is not ordinarily “an adequate basis for the grant
of a new trial.” Mesarosh v. United States, 352 U.S. 1, 5
(1956). It is no leap to conclude that the prospect of impeach-
ment on a collateral issue also does not warrant a new trial.
Hinkson does not satisfy even the first two factors — newly
discovered evidence and diligence — nor does he meet the
remaining criteria. Finally, it bears noting that the majority
hints at government impropriety with respect to the produc-
tion of evidence regarding Swisher’s military record. Op. at
6111-12. Speculation on this point ignores the district court’s
explicit findings:2
  2
    It is not our role to speculate about fax lines and timing of receipt of
documents. In any event, after argument in this appeal, the government
was asked to submit further documentation of the timing of its knowledge
of the Dowling letter about Swisher’s records. Nothing in that letter under-
mines the district court’s findings.
6176                  UNITED STATES v. HINKSON
       [T]he Government did not fail in its disclosure obli-
       gations. Furthermore, there is no factual link whatso-
       ever between the government’s conduct here and any
       alleged wrongful conduct on the part of witness
       Swisher. There is no indication that the Government
       had any awareness that any of Swisher’s testimony
       regarding his military background could be false
       prior to defense counsel’s mid-trial receipt of the
       surprise letter from the National Personnel Records
       Center.

   I object to the majority’s effort to override the district court
record. If the district court’s findings are clearly erroneous,
then reversal on that point would be in order. Alternatively,
if there remains a substantial question as to the timing and
receipt of evidence regarding Swisher’s military record, then
the case should be remanded to the district court for further
hearing and findings on that issue. But the worst of all worlds
is to sprinkle the opinion with innuendo and then simply let
it hang there as a backdrop to the remainder of the opinion.

  1.     Newly Discovered Evidence

   The majority summarily discounts the newly discovered
evidence factor in concluding that neither the Miller nor the
Woodring affidavit were in the possession of the defense (or
the government) until after the trial.3 It goes without saying
   3
     The majority also notes that Swisher has been convicted for the fraudu-
lent wearing of a military decoration and the making of false statements
to obtain veterans benefits. Op. at 6123-24. This information was not, of
course, before the district court as part of Hinkson’s new trial motion, and
it would be inappropriate to permit this recent event to influence our eval-
uation of the district court’s decision three years ago on the new trial
motion. See United States v. Boberg, 565 F.2d 1059, 1062 (8th Cir. 1977)
(declining to decide a new trial motion on the basis of new evidence where
it had not been previously presented to the trial court). As the majority
appears to acknowledge this point, one wonders the purpose of recitation
of this after-the-fact information.
                   UNITED STATES v. HINKSON                6177
that neither affidavit was or could have been in the trial
record, as they were not offered or procured until after the
trial. But that superficial analysis begs the question. As the
district court noted, “the substance of both proffered docu-
ments is not new[.]”

   The Miller and Woodring affidavits added nothing of sub-
stance to the mix of information available to both sides before
trial ended. The Miller affidavit essentially repeated informa-
tion that had already been uncovered, e.g., that Swisher had
not been awarded any military service awards, including a
Purple Heart; that the replacement DD-214 did not exist in
Swisher’s official military file and was likely not authentic;
and that his injuries stemmed from a vehicle accident, not
from combat. The only matter of substance mentioned in the
Woodring affidavit that the defense had not previously known
is Woodring’s declaration that his signature on the replace-
ment DD-214 was forged. But this revelation barely makes a
ripple in contrast to the information that was uncovered
before trial ended. The record supports the district court’s
conclusion that nothing of significance offered by the defense
in support of its new trial motion qualified as newly discov-
ered evidence. Although the court had acknowledged at trial
that the file was “very difficult to decipher,” with the benefit
of briefing and the entire record, it concluded that the “new”
evidence offered by the defense was not newly discovered.
That conclusion alone should end the new trial inquiry.

   The sequence of events leading to Swisher’s testimony
about his military record is instructive on the first and second
Harrington factors. On direct examination, Swisher testified
that he told Hinkson that he served in the Marine Corps; that
he discussed his military service with Hinkson; and that he
told Hinkson that he had killed “too many” people. After an
extensive and withering cross-examination, defense counsel
admitted in a side-bar colloquy that it had been digging into
Swisher’s military history and decided to cross-examine
Swisher on that point. As the district court noted, defense
6178               UNITED STATES v. HINKSON
counsel “opened the door on this,” i.e., the subject of Swish-
er’s military service.

   At the close of its cross-examination of Swisher, defense
counsel had in its possession the Tolbert letter, which stated
that Swisher’s record failed to show that he was ever awarded
any personal decorations. With the court’s permission, coun-
sel reopened cross-examination to explore the military service
issue. When that examination backfired and Swisher produced
the replacement DD-214, there was extensive discussion
between the court and counsel over how to proceed.

   The district court was open-minded as to how to address
the military commendation issue. Recognizing that defense
counsel opened the door and that “ordinarily, under the rules,
you are stuck with the witness’ answer and the court has the
discretion to restrict further collateral proof of that impeach-
ment,” the court nonetheless suggested that counsel could
continue cross-examination. The court also stated that another
option would be to instruct the jury to disregard the testimony
relating to the Purple Heart. With the consent of defense
counsel, the court ultimately finessed the situation by telling
the jury that the court had erred in permitting the inquiry and
gave the following remedial instruction:

    [I]t’s been a long day; and I now realize that I made
    a mistake in allowing the question with regard to the
    Purple Heart Medal. So I am going to instruct you to
    disregard completely all of Mr. Swisher’s testimony
    with regard to that military commendation.

   Although defense counsel marked the available documents
as exhibits, they were neither offered, nor refused, as evi-
dence. Nor did counsel attempt to procure an actual witness
on the subject of Swisher’s military history, although it could
have done so before close of the trial. The defense did not
request a short continuance or offer another remedial alterna-
tive to the court. In the end, defense counsel accepted the pro-
                   UNITED STATES v. HINKSON                 6179
posed instruction and made a deliberate choice not to re-
examine Swisher a third time.

   The majority excuses the defense’s decision not to reopen
cross-examination of Swisher because “[c]ounsel could hardly
have anticipated that Swisher, after being shown the [Tolbert]
letter, would pull from his pocket a forged document purport-
ing to provide a superseding account of his military service.”
Op. at 6129. While Swisher’s dramatic production of the let-
ter was unexpected, counsel still had a number of options to
impeach Swisher. Defense counsel’s failure to prepare a back-
up plan in the event that Swisher did anything but wilt and
confess his sins on the stand was a choice that it made.

   Given the time available for the defense to investigate
Swisher’s record, and the juicy material that it could have
culled from information available to it — ranging from the
time of Swisher’s service, to his signature on the original DD-
214, to the fact that the replacement DD-214 was apparently
not authentic — the defense had plenty of grist for the mill.
The district court was flexible, and offered the reopening of
cross-examination to explore these issues. Yet, the defense
simply made the strategic decision not to go down that path.

  2.   Due diligence

   Without deference to the district court’s analysis, the
majority concludes that “[i]n our view, defense counsel were
diligent in looking for evidence that could be used to impeach
Swisher.” Op. at 6129. The majority’s extensive discussion of
this diligence nowhere cites to the district court’s conclusion
that Hinkson “is unable to establish that the failure to discover
this evidence was not due to his counsel’s lack of diligence”
and that “the Court finds that defense counsel had ample time
to investigate Swisher’s record prior to trial, but was not dili-
gent in pursuing the issue.”
6180                 UNITED STATES v. HINKSON
   The district court’s findings were not clearly erroneous. For
starters, Hinkson’s attorneys admitted at trial that they had
been suspicious “[f]or quite sometime” about Swisher’s mili-
tary credentials because “of his age and because of the time
of the war.” Three months prior to Hinkson’s criminal trial on
the solicitation charges, one of Hinkson’s attorneys deposed
Swisher as part of the multi-party Idaho state court lawsuit
against Hinkson. At that time, Hinkson’s lawyers were skepti-
cal about Swisher’s record. Swisher stated during this deposi-
tion that he was born January 13, 1937. As a matter of public
record, the Korean conflict began in 1950 and fighting ended
in 1953.5 If Swisher had served in the “Korean War,” as he
had claimed, he would have been 13 to 16 years old at the
time of his alleged service—certainly a red flag as to the pos-
sibility that he was not being truthful about his military
record. At the same deposition, Swisher stated that he had
constantly suffered from back pain because he had suffered
two grenade injuries while he was in the military. He made
these same claims in two grand jury appearances in 2002 and
2004, which led to Hinkson’s indictments. The defense
received those transcripts a week before trial. Defense counsel
admitted that he knew, based on Hinkson’s prior testimony
before the grand juries, that “I should be very careful in my
cross-examination of him.”

   All of these facts were on the table and subject to investiga-
tion before the trial began and certainly before trial ended.
Even during trial, once more facts came to light, counsel
could have subpoenaed witnesses on this subject. But it chose
not to, a strategic decision that cannot now be the basis of the
grant of a new trial motion. The district court had first-hand
experience with the discovery chronology and the diligence of
defense counsel. Nothing supports the majority’s rejection of
  5
   Encyclopedia    Britannica    Online,   Korean      War,     http://
www.britannica.com/eb/article-9046072/Korean-War (last visited May 16,
2008).
                      UNITED STATES v. HINKSON                     6181
the district court’s explicit findings regarding lack of dili-
gence.

  3.   Materiality

   The next question for consideration under Harrington is
whether the evidence about Swisher’s military record was
material to the issues at trial. The district court held that the
“proffered ‘new’ evidence is not material to the issue at
trial[.]”

   I cannot think of a clearer example of a collateral issue than
Swisher’s military service.5 “Ordinarily, evidence impeaching
a witness will not be material . . . because it will not refute
an essential element of the government’s case.” United States
v. Davis, 960 F.2d 820, 825 (9th Cir. 2005) (citations omit-
ted). Evidence that Swisher allegedly lied during the course
of Hinkson’s past trial will not refute an essential element of
the government’s solicitation case against Hinkson at a new
trial nor would the evidence be central to a new trial. The ulti-
mate issue at a new trial is whether Hinkson solicited Swisher
in the murder-for-hire scheme. Whether Hinkson was
prompted to do so by his belief that Swisher had the qualifica-
tions to be an assassin is a related issue, although not one that
depends on Swisher’s actual military record. But Swisher’s
actual military record, and whether he was truthful about it,
are collateral points. Ironically, Swisher’s puffing of his mili-
tary achievements makes it even more likely that Hinkson
would have found him to be a suitable candidate. In any
event, the veracity of Swisher’s military record will not be
material to the issues at a new trial and can only be described
as a classic sideshow.
  5
    Contrary to the majority’s characterization, materiality is not co-
extensive with the fifth Harrington factor of whether acquittal would be
probable. See United States v. George, 420 F.3d 991, 1001 (9th Cir. 2005)
(concluding that the newly discovered evidence was “not material[,]” as
“[i]t would have only established a collateral point”).
6182                 UNITED STATES v. HINKSON
   To be sure, Swisher is a key witness for the government,
and his credibility is on the line. But the military service por-
tion of his testimony was, relative to the rest of his testimony,
unimportant. A district court “may well find it probable that
an acquittal would result on retrial” when “the bulk of a key
witness’ testimony is otherwise shown to be false.” Krasny,
607 F.2d at 845 (emphasis added). Swisher’s testimony
spanned over one hundred pages. Only three pages related to
his Purple Heart and military service, and that portion was
ultimately stricken from the jury’s consideration. The “bulk”
of his testimony has not been proven false. Thus, while Davis
recognizes that impeachment evidence may be so powerful
that “it could render the witness’ testimony totally incredi-
ble[,]” 960 F.2d at 825, such is not the case here. Hinkson’s
perception of Swisher’s purported prowess and daring, not the
truth of his military record, is the real issue.

   The district court also held that while information about
Swisher’s record could be used for impeachment purposes,
the documents and testimony by collateral witnesses would be
inadmissible extrinsic evidence under Federal Rule of Evi-
dence 608(b).6 Rule 608(b) bars introduction of extrinsic evi-
dence of a witness’s past conduct. On cross-examination, the
witness may be impeached by referencing documents and
probing his veracity or “character for truthfulness or untruth-
fulness.” United States v. Abel, 469 U.S. 45, 55 (1984). None-
theless, Rule 608(b) “limits the inquiry to cross-examination
of the witness . . . and prohibits the cross-examiner from
introducing extrinsic evidence of the witness’ past conduct.”
Id. at 55 (emphasis added). The district court also held that,
on balance, the evidence was barred under Rule 403 because
it would have “wasted considerable trial time on a confusing,
  6
    The majority’s discussion of the wearing of the Purple Heart by
Swisher seems misplaced. See Op. at 6133-34. That testimony was
stricken, and there is little likelihood that this circumstance will be
repeated at a new trial, such that the documents would be admissible as
evidence to contradict a witness’s statement.
                   UNITED STATES v. HINKSON                6183
tangential issue unrelated to the factual issues to be resolved
by the jury.” These evidentiary rulings also undermine the
defense’s claim that impeachment of Swisher’s military
record will blossom into substantive evidence at a new trial.

  4.   Neither Cumulative Nor Merely Impeaching

   The fourth factor for consideration is whether the alleged
new evidence is “neither cumulative nor merely impeaching.”
The evidence here fails on both counts. As the district court
concluded, the proferred “new” evidence was cumulative of
other information that was already available to the defense
prior to the conclusion of trial, such as the Tolbert letter and
the Dowling letter. Those documents established, among
other things, that the replacement DD-214 was a forgery and
that Swisher had lied about receiving military awards. The
“new” evidence, while more extensive, essentially confirms
those facts.

   The evidence is also plainly “merely impeaching,” by any
definition of the term. Evidence that Swisher lied with respect
to his military record may affect the jury’s estimation of his
credibility on the stand. But its sole use at a new trial would
be to impeach Swisher. Impeachment evidence that renders a
witness’s testimony totally incredible may be “material,”
within the meaning of the third Harrington factor, where the
impeached witness’s testimony was “uncorroborated and pro-
vided the only evidence of an essential element of the govern-
ment’s case.” Davis, 960 F.2d at 825. But that circumstance
does not describe the evidence here. To adopt the majority’s
view would require us to ignore all of the corroborating and
circumstantial evidence pointing to Hinkson’s guilt.

  5.   Probable Acquittal at a New Trial

   The final consideration is whether the new evidence would
probably result in Hinkson’s acquittal at a new trial. The dis-
trict court noted that the “Federal Rules of Evidence would
6184                  UNITED STATES v. HINKSON
not apply any differently in a new trial,” such that “the profer-
red extrinsic evidence would . . . [not] probably result in an
acquittal.”

   The “newly discovered” evidence fails this fifth prong of
the Harrington test because it simply does not make an
acquittal probable. The majority states that to convict Hinkson
of solicitation, a jury at a new trial must believe that Swisher
“had been serious” in asking Swisher to kill Cook, Hines, and
Lodge. Op. at 6143. The government has ample ammunition
against Hinkson to establish beyond a reasonable doubt that
Hinkson solicited Swisher. A new trial cannot erase the long,
detailed history between Hinkson and Swisher. It will not
change the undisputed testimony that Hinkson believed that
Swisher, as a result of his military background and gun exper-
tise, had the wherewithal to execute a hit. Nor will it erase the
third party testimony that Hinkson wanted the three officials
killed, that he hoped that they would die, and that to him, it
would be worth at least $10,000 a head for that to happen. In
short, nothing in the record suggests that the district court
abused its discretion in concluding that a new trial would
probably not result in Hinkson’s acquittal.

   The majority suggests that the evidentiary deck was equally
stacked against Hinkson on the Swisher-related counts as on
the Harding-related counts, implying that Swisher’s tales of
military awards and combat injuries might have swayed the
jury to convict Hinkson only on the Swisher-related counts.7
But the effort to construct perfect parallels between Swisher
and Harding is too simplistic. There were myriad reasons
other than those listed by the majority that may have made
  7
    The majority writes that “Swisher presented himself as a United States
Marine who had been wounded in service of his country” and was a “dec-
orated war hero.” Op. at 6165. But the district court instructed the jury to
disregard all of the Purple Heart testimony, an instruction that we assume
the jury followed. See United States v. Jimenez Recio, 371 F.3d 1093,
1101 n.6 (9th Cir. 2004).
                   UNITED STATES v. HINKSON               6185
Hinkson’s guilt seem more solid to the jury on the Swisher
counts. Unlike Swisher, who had known Hinkson for over
two years and been a close friend at the time of the alleged
solicitations, Hinkson had known Harding for only a few
weeks before the first time that he allegedly asked Harding to
kill three federal officials. Hinkson knew Swisher to be a vin-
dictive person who, like Hinkson, acted on his dislike for
those who had “wronged” him, like Albers. Hinkson had
known Swisher through his regular consulting work for
WaterOz, whereas Harding was a sometime radio show host
who had recently worked on shows dealing with the paranor-
mal. The fact that Hinkson believed Swisher to have signifi-
cant combat experience was yet another reason that a
solicitation to Swisher was both believable and a pragmatic
choice. Swisher’s lies simply enhanced his prowess from
Hinkson’s perspective. These distinctions illustrate that the
Harding and Swisher solicitations cannot be neatly squared
off, with evidence of Swisher’s actual rather than represented
military service tipping the scales at a new trial.

   In reviewing the district court’s denial of a new trial, we
must be mindful of the factors articulated in Harrington and
the deference accorded to the district court in making its dis-
cretionary ruling on a new trial. The district court provided a
long and thoughtful recitation of his weighing of each of these
factors. No legal error undermines that conclusion, and noth-
ing in the district court’s reasoning and conclusions was an
abuse of discretion.

   I respectfully dissent from the majority’s decision to grant
Hinkson a new trial. At most, I would remand for further fact-
finding on the issue of when the government knew, or should
have known, of the Dowling letter. In doing so, if warranted
by evidence of the government’s knowledge, I would give the
district court the first opportunity to evaluate a new trial
motion under the Zuno-Arce test. United States v. Zuno-Arce,
339 F.3d 886 (9th Cir. 2003). Barring a majority for remand,
I would affirm the denial of the motion for a new trial.
