Full opinion text
ORDER Appellant’s Petition for Rehearing by the Limited En Banc Court and for Rehearing by the Full Court is denied. Chief Judge Kozinski and Judges Pregerson, Wardlaw, W. Fletcher, and Paez voted to grant the petition. The remaining judges voted to deny it. The original en banc opinion filed on November 5, 2009 remains unchanged, except that Chief Judge Kozinski concurs only in the portion of the opinion that clarifies this court’s abuse of discretion standard of review, but dissents from the application of that standard to the facts of this case as stated in his partial dissent filed today with this order. The original en banc dissent filed by Judge W. Fletcher on November 5, 2009 is vacated and replaced by the attached dissent filed today with this order. No further petitions for rehearing will be accepted.
Chief Judge KOZINSKI, dissenting: I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud. My change of heart came about after I read the Supreme Court’s summary reversal in Porter v. McCollum, - U.S. -, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), and the amicus brief of William Mac Swain filed in our case. Without Swisher, the government had no case. I’m now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full. W. FLETCHER, Circuit Judge, dissenting, joined by KOZINSKI, Chief Judge, and PREGERSON, WARDLAW, and PAEZ, Circuit Judges: I dissent. Following a two-week trial in federal district court in Boise, Idaho, a jury convicted David Roland Hinkson of soliciting the murder of three federal officials. The government’s star witness supporting the conviction was Elven Joe Swisher. Wearing a Purple Heart lapel pin on the witness stand, Swisher testified that he had told Hinkson that he was a Korean War combat veteran and that Hinkson, impressed by Swisher’s military exploits, solicited him to kill the officials. The government maintained in its opening statement to the jury that Swisher was a Korean War combat veteran, and it maintained throughout the trial that Hinkson’s understanding of Swisher’s military exploits showed that he was serious in his solicitations of Swisher. The government now concedes that Swisher neither served in combat nor earned any personal military commendations, and that Swisher presented a forged military document in court and repeatedly lied under oath at trial about his military record. Hinkson makes three arguments on appeal. First, he argues that the district court wrongly excluded documentary evidence showing that Swisher presented a forged document and lied on the stand. Second, he argues that the prosecutor engaged in misconduct when he invoked Swisher’s military service in his closing argument despite having substantial reason to suspect that Swisher had lied about that service. Third, he argues that the district court abused its discretion in denying his motion for a new trial based upon his discovery after trial of new evidence conclusively establishing that Swisher had lied on the stand. I would reverse the district court based on Hinkson’s first and third arguments. I would hold that the district court abused its discretion when it excluded documentary evidence that would have contradicted Swisher’s claim on the stand that he was a decorated combat veteran. I would also hold that the district court abused its discretion when it denied Hinkson’s motion for a new trial. I would not reach Hinkson’s second argument. I. Background The majority opinion recites some of the background facts relevant to Hinkson’s appeal. In my view, however, the majority’s recitation is too truncated. I begin by providing the background necessary to understand what went on during Hinkson’s trial, and to understand why I believe the district court abused its discretion. In an indictment filed on September 21, 2004, a federal grand jury in Idaho charged Hinkson with soliciting the murders 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 investigation and prosecution of Hinkson on tax and currency structuring charges. Hinkson appealed his conviction on those charges in a companion case. The three-judge panel of which I was a member affirmed that conviction in a separate memorandum disposition. The superseding indictment in the case now before us 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 January 2003 (Counts 1-3) and again in March 2003 (Counts 4-6). Counts 7-9 charged that in December 2002 or January 2003, Hinkson, again in violation of § 373, sought to persuade Swisher to murder Cook, Hines, and Lodge. Finally, Counts 10 and 11 charged that Hinkson, in violation of 18 U.S.C. § 115, personally threatened to kill the children of Cook and Hines. Hinkson was convicted on only the Swisher-related counts, Counts 7-9. The jury acquitted Hinkson on Counts 1-3, 10, and 11, and deadlocked on Counts 4-6. This appeal involves only the Swisher-related counts. At several points during Hinkson’s trial, the prosecutor emphasized Swisher’s military background, and Hinkson’s understanding of that background, in an effort to show the seriousness of Hinkson’s solicitations. In his opening statement to the jury on January 11, 2005, the prosecutor stated affirmatively that Swisher “was a Marine, a Combat Veteran from Korea during the Korean conflict. He was not adverse to this kind of violent, dangerous activity; but he wanted no part of murdering federal officials.” However, during direct examination of Swisher three days later on January 14, the prosecutor did not ask Swisher whether he was, in fact, a Korean War combat veteran. Somewhat oddly, given his affirmative statement to the jury only three days earlier, the prosecutor asked Swisher only what he had told Hinkson about his military experience in Korea. Swisher came to the witness stand wearing a replica of a Purple Heart on his lapel. A Purple Heart is an award given to members of the United States military who are wounded in combat. Swisher testified that he first became acquainted with Hinkson in 2000. According to Swisher, he had done some consulting work for Hinkson’s company, WaterOz, and the two men had developed a friendship. Swisher testified that he had served in the Marine Corps. In response to the prosecutor’s questions, he testified further that he discussed his military exploits with Hinkson on several occasions and told Hinkson that he had been in combat in Korea as a Marine. According to Swisher, Hinkson had asked whether he had ever killed anyone, to which Swisher said he had responded, “Too many.” Swisher testified that on various occasions in 2001 and early 2002, he and Hinkson discussed Hinkson’s legal problems, particularly a civil suit brought against Hinkson by a former WaterOz employee. Swisher testified that shortly after April 2002, Hinkson expressed “considerable” anger toward the employee’s lawyer, Dennis Albers, and spoke in graphic detail about wanting to see Albers and his family “tortured and killed.” Swisher testified that Hinkson offered him “$10,000 a head to do it,” but Swisher “told [Hinkson] he was out of his mind and he needed to knock that kind of BS off.” Swisher testified that in July or August of 2002, Hinkson began to focus on his problems with federal officials. According 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 testified that he replied that he would report Hinkson to the authorities if Hinkson “continue[d] talking that way.” Swisher testified that after Hinkson was arrested on tax charges in November 2002, he had further conversations with Hinkson. 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 Hinkson then offered him “[a]t least $10,000 a head” to have “them all treated the way that the initial offer regarding Albers and his family had been handled”— that is, “[t]ortured and killed.” Swisher testified that Hinkson spoke in a “pleading fashion” about how “he just had to have this done.” Swisher replied that he “never wanted to hear that again.” After the January 2003 exchange, the two men had a serious falling-out, eventually resulting in a lawsuit and a nasty feud. Swisher testified that sometime after April 2003 he reported Hinkson’s solicitations to a local Idaho prosecutor. At time of his testimony at Hinkson’s trial in January 2005, Swisher was a bitter enemy. On cross examination, defense counsel initially did not inquire into Swisher’s military background. Instead, counsel sought to discredit Swisher by identifying inconsistencies in his testimony and by emphasizing the ongoing feud between Swisher and Hinkson. However, after having indicated that he had no further questions for Swisher, counsel asked to approach the bench. At the sidebar, he told the court, “For quite some time, [the defense has] been trying to dig into [Swisher’s] military history.” Counsel explained that, “[b]e-cause 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 personal] decorations.” Defense counsel noted for the record that Swisher was “wearing a Purple Heart on the witness 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 opening statement to the jury, he had affirmatively stated that Swisher was a combat veteran from the Korean War. The prosecutor also stated at the sidebar, “For the record, he has a little — I don’t know — you know, something stuck in his lapel. If somebody knows what that is, fine. No one has said what it is.” The court permitted the defense to reopen its cross examination of Swisher in order to ask about Swisher’s lapel pin and about his service during the Korean War. In response to 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 Personnel 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 addition, 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: Q [by defense counsel]: Now, sir, when you are awarded a Purple Heart, are you not given a document reflecting your entitlement to that Purple Heart? A [by Swisher]: Commonly. Q: Were you given such a document? A: Yes. Q: Where is that document? A: In my pocket. Q: May I see it, please? A: I have a replacement DD-214, if the court will permit me to— THE COURT: Let me take a look at it, first. THE WITNESS: It is certified. We had to go clear to Headquarters of the Marine Corps and all over to get it. Because of the classifications, my record, along with the other survivors of that Mission, had been pretty much purged. THE COURT: Ms. Longstreet, would you tender that to both counsel, please? [THE PROSECUTOR]: I have a copy, Your Honor. THE COURT: Just hang on to it. [DEFENSE COUNSEL]: What was that? [THE PROSECUTOR]: I have a copy. [DEFENSE COUNSEL]: May we approach, Your Honor? At sidebar, out of the hearing of the jury, the exchange continued: [DEFENSE COUNSEL]: I am going to — apparently, 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 document 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 Expeditionary Medal.” Near the middle of the document, in box 26, was typewritten: “SILVER STAR, NAVY AND MARINE CORPS MEDAL W/ GOLD STAR, PURPLE HEART, NAVY AND MARINE CORPS COMMENDATION MEDAL W/BRONZE ‘V’.” In box 27, immediately below, was typewritten: “Multiple shrapnel and gunshot — September 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 February 2004[.] ROSE E. GEHRING [,] Ex-Officio Auditor and Recorder Idaho County, Idaho[.] By Dana Stroop[,] Deputy[.] Fee $0[,] 1 pg.” (Underlining indicates handwriting; italics indicates stamp; brackets indicate material added by me.) The court excused the jury, and the conversation continued. The court asked the prosecutor to confirm that he had seen the document that morning at 9:00 a.m. The prosecutor replied: [Swisher] showed it to me at 9:00 a.m. this morning 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 prosecutor’s failure to inform the defense that Swisher had given the government a document that appeared to contradict the letter from the National Personnel Records Center. The prosecutor responded that defense counsel “should have listened to me when I said, ‘Don’t go there.’ ” He elaborated: I didn’t go into anything about his combat or his medals or anything else on my direct. He chose to go down this path, even when I objected to it. I didn’t draw attention to the little pin in Mr. Swisher’s lapel. Lots of people wear them. They could be anything. He wanted to make an issue of it. Counsel whipped out his document that he received minutes ago. I believe he probably didn’t have enough time to read it and digest it and tried to use that to impeach the witness. That was improper. It was a grandstand play in front of the jury that didn’t — that wasn’t so grand, and he got caught on it. That’s where we are. There is nothing the Government did that caused him to go in the area he did. We tried to avoid going into this area. I don’t think — you know, I barely had time to look at this myself. It refers to other — that this replaces some document previously issued. I don’t know what that document is, and it just led me to conclude that this is not a proper area to go into. The court denied the motion for a mistrial, stating: The court finds as a matter of fact that if[Swisher’s document] is a copy of a genuine military record — and at this point, I don’t have any way to determine that; but it appears to be genuine, at least in appearance. It indicates consistently with how the witness has testified; that he did, in fact, receive multiple shrapnel 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 document] 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 testimony 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 completely 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 “replacement DD-214” took place on Friday afternoon, January 14. The following Monday, January 17, was a federal holiday. When the trial resumed on Tuesday, the prosecution rested, and the defense called its first witnesses. The next day, Wednesday, January 19, defense counsel told the court, outside the presence of the jury, that he had obtained information indicating that the document Swisher had taken from his pocket while on the witness stand — the so-called “replacement DD-214” — was fraudulent. Defense counsel had obtained a photocopy of a different Form DD-214, also recorded by Swisher at the Idaho County Auditor and Recorder’s office. However, this Form DD-214 had been recorded in February 2001 rather than February 2004. The earlier-recorded Form DD-214 was identical to the later-recorded form, with the notable difference that none of the medals, commendations, or wounds was mentioned in the earlier-recorded form. “N/A” was written in box 26 where the Silver Star, Purple Heart, and other awards were specified in the later-recorded form. “N/A” was also written in boxes 27 and 32 where, in the later-recorded form, “Multiple shrapnel and gunshot— September 1955, Korea” and “Entitled to wear Marine Corps Expeditionary Medal” were written. Defense counsel told the court: [T]he indications from the people we have talked to [at the National Personnel Records Center] is that they stand by the [Tolbert] letter of January 14th and that they will provide us with a certified copy of his DD-214 that would not support [Swisher’s document]; 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, further, if any change had been made in the discharge document, it would have been done on a form DD-215 [rather than a form DD-214].... Counsel further stated that he believed Swisher had not been wounded in combat but, in fact, had been “injured while in the Service in a car accident in Bremerton, Washington.” He stated that the National Personnel Records Center would send Swisher’s full military record to the court, but only in response to a subpoena signed by the court. The court signed a subpoena late that day. Two days later, on Friday morning, January 21, again outside the presence of the jury, the prosecutor provided a photocopy of a letter to the court “for in-camera review.” The letter was from Lieutenant Colonel K.G. Dowling, Assistant Head of the Military Awards Branch of the Marine Corps, to Ben Keeley of the Idaho Division of Veterans Services. The letter (the “Dowling letter”) was dated December 30, 2004. What appeared to be a “received” stamp was dated January 10, 2005. At the top of the Dowling letter, now in the possession of the government, was a fax line indicating that it had been faxed from the “ID. STATE VETERANS SVS” in Lewiston, Idaho, where Keeley’s office was located, on Thursday, 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 the queries during oral argument before the three-judge panel, the government’s attorney sent a post-argument letter stating that he had “been informed that investigating agents on the 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.” There is no indication in the record that defense counsel had any idea of the existence of the Dowling letter until the government provided it to the court on January 21. The Dowling letter indicated that Keeley earlier had contacted the Personnel Management Support Branch of Marine Corps Headquarters, after Swisher attempted to use his “replacement 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 Certificate of Release or Discharge from Active Duty (DD Form 214) and supporting letter which you submitted 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 information in box 26, and contains no “wounds” information 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 submitted 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), Purple Heart, and Navy and Marine Corps Commendation Medal with Combat “V.” However, our review of his official military records, those of this headquarters, and the Navy Department Board of Decorations 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 Commendation 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 Pendant was authorized for issue in connection with a Letter of Commendation and commendation ribbon. On September 21, 1960, the Secretary of the Navy changed the name of the award to the Navy Commendation Medal. On August 19, 1994, the Secretary of the Navy renamed the medal as the Navy and Marine Corps Commendation Medal. It is impossible 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, including the Marine Corps Expeditionary Medal, for his service in the U.S. Marine Corps. Mr. Swisher’s official military records failed to indicate any information that he served in Korea during the period when any awards were authorized. His records show that he was stationed at Camp Fuji and Yokosuka, Japan from March 4,1955 to May 6,1956. There is no information in his military record or his medical record to substantiate his entitlement to a Purple Heart medal. His medical records show that on February 10, 1957, he was involved in a private vehicle accident near Port Townsend, Washington. Later on Friday, January 21, the court received Swisher’s official military file — “a half-inch-thick stack of materials” — from the National Personnel Records Center in response to its subpoena. The official military file contained a copy of the Dowling letter. The government undoubtedly anticipated that the file would arrive on or about that day, and that when it arrived it would contain the Dowling letter that the government had presented to the court that morning. The presence of the Dowling letter in the file was entirely predictable, for it stated in its last paragraph: “[Mr. Swisher’s] records will be returned to the National Personnel Records Center, and a copy of this letter will be filed in Mr. Swisher’s official military records.” Swisher’s official military file also contained a copy of Swisher’s original Form DD-214. This Form DD-214 matched precisely the Form DD-214 that Swisher registered in the Idaho County Recorder’s office in February 2001. This Form DD-214 showed that Swisher had never received any military awards. Swisher’s official file also contained the two documents that Keeley had sent to Dowling for evaluation. One of the documents was a copy of the “replacement DD-214” 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 Morgan and I encourage you to enter a R.O.T.C. program at the college of your choice. Glad we were able to help. As indicated above, the Dowling letter stated that “we have reason to believe” that both of these documents “are not authentic.” Outside the presence of the jury, the court stated — some-what surprisingly in view of the contents of the file — that a “quick review of the file indicates that Mr. Swisher was, in fact, involved in top secret activities; and it appears that he was awarded the medals that he claims that he was awarded. ... [The documents] do not appear to be impeaching.” The court told counsel that it would conduct a more thorough review of the file over the weekend. When the trial reconvened on Monday, January 24, the court discussed Swisher’s official military file with counsel off the record. Then, on the record and without the jury present, the court stated its conclusions. The court stated that the file had been sent to the court by the National Personnel Records Center in response to the court’s subpoena; that the Dowling letter in the file matched the letter provided to the court by the prosecution on Friday; and that the Dowling letter concluded that the “replacement DD-214” and the “supporting letter” purportedly signed by Woodring were “not authentic.” But the court stated that it 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 activities. 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 peripheral mini-trial under Rule 608(b) of the Rules of Evidence. So the state of the record at this point before the jury is that the jury is not to consider Mr. Swisher’s battlefield commendations, or lack thereof, although they can certainly assess his credibility with regard to the extensive cross-examination that was conducted 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 question Swisher further about his “replacement DD-214” and his military experience. Defense counsel reiterated that Swisher had worn a Purple Heart on the witness stand. 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 Veterans’ Administration.” The prosecutor added that the Dowling letter, standing alone, did not prove that Swisher’s “replacement DD-214” was fraudulent. He said: What they would really have to prove, if this were to be resolved, is they would have to prove that the substitute DD-214 signed by Captain Woodring, in, I believe, October '57 — ... that the signature of Captain Woodring was forged; and I would suggest that probably would resolve whether it’s correct or not. How you would prove that something that was signed in 1957 — I doubt very much Mr. Woodring is still with us, but I don’t know. The court agreed that it “was not at all convinced yet” that “the document that Mr. Swisher pulled out of his pocket [was] false or not” because Swisher’s military record was not “self-explanatory.” The court stated, “I have no idea, if somebody is involved in secret military operations, whether or not their personnel file ... would ever reflect those missions.” The court stated that it needed to hear from “a records custodian from the National Personnel Records Center or someone else who is more familiar with military records and decorations than any of us.” The court ruled that the defense would be permitted to recall Swisher for further cross examination but would not be permitted to introduce into evidence any of the documents bearing on his military experience. That is, the court ruled that the defense would not be permitted to introduce the Tolbert letter, the Dowling letter, or anything else contained in Swisher’s official military file that had been sent in response to the court’s subpoena. The court stated: The documents which form the basis for the doubt cast on Swisher’s military record and [his] entitlement to wear the Purple Heart are extrinsic evidence probative of a specific incident of untruthfulness. The court therefore holds that the admission of these documents is barred by Rule 608(b). Furthermore, the court holds that admission of the actual documents of impeachment is barred under Rule 403. First, the documents have not yet been officially authenticated; and this process could waste considerable time on tangential issues only indirectly related to the issues to be resolved at trial and, perhaps, submitted to the jury as early as tomorrow. Second: The documents themselves are not entirely conclusive. They are certainly not self-authenticating. The Government would have to be allowed to introduce conflicting documents or testimony of military officers to explain them. The proffered documents state, in summation, that Swisher’s record does not indicate that he earned any service record or service medals during his military duty; however, other documents available to the court suggest that Swisher might, indeed, have earned such medals. The defense may reference these documents during 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 reference the impeaching documents during the cross-examination. I will let the defense decide which way they want to go; either leave it alone or call him. The next morning, Hinkson’s counsel informed the court that, given his inability to introduce into evidence the military documents showing that Swisher had lied on the stand about receiving the Purple Heart and other decorations, he had decided not to recall Swisher. The government made several references to Swisher’s military 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 had been in the military and had killed a lot of people. He was very impressed by that. In fact, according to Mr. Swisher, Mr. Hinkson asked, “Have you killed somebody?” And when Mr. Swisher says, ‘Tes,” Mr. Hinkson’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 “[ajnother 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 experiences 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 government’s closing, the prosecutor stated that Hinkson “understood 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 solicitation counts. It acquitted or hung on all other counts. On March 3, 2005, just over a month later, defense counsel moved for a new trial under Federal Rule of Criminal Procedure 33. The motion relied on, inter alia, “newly discovered evidence” that Swisher had lied under oath on the witness stand and had produced a forged document in court. That evidence consisted of a newly obtained affidavit from Chief Warrant Officer W.E. Miller, the Marine Corps liaison to the National Personnel Records Center, and a newly obtained affidavit from now-retired Colonel W.J. Woodring, Jr., the Marine Corps officer whose signature appeared on Swisher’s original Form DD-214, on the purported “replacement DD-214,” and on the purported “supporting letter” for the “re-placement DD-214.” These documents were precisely what the district court and the government had said were needed to prove that Swisher had lied on the stand. Chief Warrant Officer Miller stated, in an affidavit dated February 24, 2005, “As part of my duties ... I have access to the official United States military records of former members of the USMC which are deposited in the Nfational] Personnel] R[ecords] C[enter] and, among my other responsibilities, I evaluate the authenticity of information, records and documents affecting individual Defense Department transfer documents including DD Forms 214.” Miller concluded that Swisher had never been awarded a Purple Heart. He wrote that his reasons included the following: 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 February 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 disciplinary 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 supporting documentation or information to indicate that he participated in any classified Marine Corps expeditionary operation that performed incursions into Korea during his tour of active duty.... E. Swisher asserts that the expeditionary missions he was involved with in Korea were classified as “Top Secret” operations. The U.S. Marine Corps did not perform any classified operations or “Top Secret” operations during Swisher’s tour of duty. Miller also concluded that the “replacement DD-214” that Swisher had presented in court was not an “authentic document.” (Miller referred to this document as “Exhibit C.”) In addition to the factors enumerated in support of his conclusion 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. Woodring never held such designation. B. Exhibit C, in box 32 provides: “[tjhis document replaces the previously issued transfer document 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: “[cjhanges 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 becoming a part of Swisher’s official U.S. military record.... G. Military policy and procedure which has been in effect since before the time of Swisher’s transfer from active duty to the USMC Reserves on 3 Aug. 57 would have directed the issuance of a DD Form 215 first, before any replacement version of Swisher’s original DD Form 214 would have been issued____ H. There is no record of a DD Form 215 ever having been issued for Swisher. (Emphasis and brackets in original.) Now-retired (and, to the government’s surprise, still living) Marine Corps Colonel W.J. Woodring, Jr., in an affidavit dated February 27, 2005, stated: 2. I spent 35 years 6 months in the United States Marine Corps. I was a Captain in the Marine Corps in 1957. I am now retired and I reside in Southern California. 3. I have reviewed Exhibit A attached which purports 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 handwriting that purports to be my signature. I did not sign Exhibit A. What looks like my signature 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 purports to be a copy of a “Replacement DD 214” for Swisher. In box 34b there is handwriting that purports to be my signature. I did not sign Exhibit B. What looks like my signature on Exhibit B is actually the image of my signature that has somehow been superimposed upon the letter. Exhibit B is a forgery. On April 22, 2005, the court denied Hinkson’s motion for a new trial. Applying the criteria set forth in United States v. Waggoner, 339 F.3d 915, 919 (9th Cir.2003), the court gave several reasons for declining to grant a new trial on the basis of Hinkson’s newly discovered evidence. First, the court 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 substance of both proffered documents is not new and is generally 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 evidence is inadmissible.” The court explained that it had “previously 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 structuring convictions. He received a total of 43 years in prison: ten years on the tax and structuring charges, ten years on each of the three solicitation charges, and an additional three years for having made the solicitations while on pretrial release in the tax case. II. Subsequent Indictment and Conviction of Swisher ■On July 30, 2007, the government indicted Swisher for knowingly wearing military decorations to which he was not entitled, including the Purple Heart, in violation of 18 U.S.C. § 704(a); for willfully and knowingly making false representations about his military service in order to obtain benefits to which he was not entitled, in violation of 18 U.S.C. § 1001(a)(2); and for presenting false testimony and a “forged form DD-214” in order to obtain benefits to which he was not entitled, in violation of 18 U.S.C. §§ 641 and 642. As the date of the indictment makes clear, the government indicted Swisher more than two years after the district court ruled on Hinkson’s motion for a new trial. On April 11, 2008, Swisher was convicted on all three counts of the indictment. Because Swisher’s indictment and conviction did not occur until after the district court ruled on Hinkson’s motion for a new trial, the district court obviously could not have considered them in reaching its decision. III. Appeal On appeal to this court, Hinkson challenges the denial of his motion for a new trial on three grounds. First, Hinkson argues that the district court erred in precluding him from introducing into evidence the military documents that would have shown that Swisher lied about his Purple Heart, about his other decorations, and about his forged “replacement DD-214.” Second, Hinkson argues that the prosecution engaged in misconduct by referring to Swisher’s military background during its closing argument after it was clearly on notice of the contents of Swisher’s official military file. Third, Hinkson argues that he is entitled to a new trial based on the new evidence presented in his post-trial motion under Rule 33. I would reach only the first and third arguments. I agree with both of those arguments and would reverse the district court based on either of them. A. Refusal to Admit Impeaching Military Documents into Evidence We review for abuse of discretion a district court’s evidentiary rulings, including decisions to admit or exclude impeachment evidence. United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.2009); United States v. Geston, 299 F.3d 1130, 1137 (9th Cir.2002). We must then apply the harmless error standard. We will reverse an evidentiary ruling for abuse of discretion “only if such nonconstitutional error more likely than not affected the verdict.” United States v. Edwards, 235 F.3d 1173, 1178-79 (9th Cir. 2000); see also Fed.R.Crim.P. 52(a) (“Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). Hinkson sought to introduce the Tolbert letter, the Dowling letter, and the rest of Swisher’s official military file in order to show that Swisher lied about receiving the Purple Heart and his other claimed military decorations, and to show that he had forged his so-called “replacement DD-214” that he had brandished before the jury. The district court excluded this evidence based on Federal Rules of Evidence 608(b) and 403. Rule 608(b) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The district court deemed the documents bearing on Swisher’s military experience “extrinsic evidence probative of a specific incident of untruthfulness” and therefore inadmissible under Rule 608(b). The district court erred as a matter of law in holding that the Tolbert letter, the Dowling letter, and the other documents in Swisher’s file could be excluded under Rule 608(b). The 2003 Advisory Committee Notes to Rule 608 make clear that “the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness.” Fed.R.Evid. 608(b), advisory comm, notes (2003). Hinkson did not seek to introduce those documents for the sole “purpose of attacking ... the witness’ character for truthfulness.” Rather, Hinkson sought to introduce the documents for the specific purpose of contradicting in-court testimony by Swisher. Such evidence is governed by Rule 607, which “permits courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence.” United States v. Castillo, 181 F.3d 1129, 1132 (9th Cir.1999). Swisher took the witness stand wearing a Purple Heart lapel pin, thereby affirmatively stating that he had been wounded in combat while serving in the United States armed forces. Rule 801(a) provides, “A ‘statement’ is ... nonverbal conduct of a person, if it is intended by the person as an assertion.” Recall that in his opening statement to the jury three days before, the prosecutor had described Swisher as “a Combat Veteran from Korea during the Korean conflict[who] was not adverse to ... violent, dangerous activity.” Particularly given the prosecutor’s statement, the jury could hardly avoid understanding Swisher’s wearing of the Purple Heart as “non-verbal conduct ... intended ... as an assertion” that he had been wounded in military combat. The documents Hinkson sought to introduce would have directly contradicted that statement, and would have shown Swisher to be a liar. The district court also erred by refusing to allow Hinkson to introduce this extrinsic evidence to impeach Swisher based on Rule 403. Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The district court abused its discretion by concluding that it would be unduly time-consuming and confusing to the jury to admit the official military documents showing that Swisher lied about receiving a Purple Heart, and that, when challenged, he lied about having a so-called “replacement DD-214.” Although some parts of Swisher’s military record may have been difficult for a lay jury to understand, other parts were easy to comprehend. For example, the Dowling letter was clearly written and unambiguous. It stated simply and directly that Swisher had not been in combat and had not been awarded any medals. Other documents in Swisher’s official military file — which had been sent to the court pursuant to its subpoena and whose authenticity was not in doubt — unambiguously showed that Swisher’s “replacement DD-214” was a forgery. Given Swisher’s crucial role in the government’s case against Hinkson, the time it would have taken to admit this evidence could hardly have outweighed its probative value. The district court’s refusal to allow Hinkson to admit this documentary evidence was not a harmless error. Swisher was the government’s principal witness on the only counts on which Hinkson was convicted. The jury would have formed a significantly different impression of Swisher’s credibility if Hinkson had been permitted to introduce evidence that Swisher lied about his military record on the stand. For the reasons I describe in detail below, this would have called into serious doubt all of Swisher’s testimony, including his statements describing his interactions with Hinkson. B. New Evidence Produced in Support of Motion for New Trial Hinkson’s motion for a new trial asserted that the Miller and Woodring affidavits, newly obtained after trial, proved conclusively that Swisher had presented false testimony and had presented a forged document during trial. The government no longer disputes that Swisher lied about his military experience and presented a forged “replacement DD-214.” It contends, however, that the newly obtained Miller and Woodring affidavits do not warrant a new trial. We review for abuse of discretion a district court’s denial of a motion for a new trial based upon newly discovered evidence. 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). 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 Harrington 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 Wright, King & Klein, Federal Practice and Procedure § 557, at 541 (3d ed.2004) (citing Berry v. State, 10 Ga. 511, 527 (1851)). Although we ordinarily state the test as comprising five requirements, we have recognized that requirements (3), (4), and (5) are duplicative. That is, newly discovered evidence is “material” when the result of the newly discovered evidence is that “a new trial would probably result in acquittal,” a condition that is not usually met when the newly discovered evidence 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, King & Klein, supra, § 557, at 552. The character of the defendant’s newly discovered evidence determines how strictly we apply the Harrington probability requirement. Our usual rule is that newly discovered evidence does not entitle a defendant to a new trial unless the evidence indicates that it is more probable than not that the new trial will result in acquittal. This rule applies to most newly discovered evidence, including newly discovered evidence tending to show that evidence presented at the defendant’s trial was false. See Krasny, 607 F.2d at 842. I would conclude that Hinkson has satisfied all five parts of the Harrington test. To my surprise, the majority concludes that Hinkson has satisfied none of them. 1. Newly Discovered Evidence Under the first part of the Harrington test, we must 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 affidavit 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 evidence was known to, or was in the possession of, the defense until after Hinkson’s trial had concluded. The majority concedes that both the Miller and Woodring affidavits are “newly written” evidence, but it contends that the affidavits “did not provide any new informotion that was not already considered and rejected from evidentiary admission by the court.” Maj. Op. 585 F.3d 1247, at 1264-65. In other words, the majority concludes that the evidence contained in the documents is merely cumulative of evidence that was already known during trial. That argument is best addressed to the third Harrington requirement, and I address that argument in detail below. I respond only briefly here. The majority’s conclusion would be more persuasive if the district court had not indicated clearly during trial that, in its view, the evidence then before it was insufficient to show that Swisher had lied about his military record. After reading the half-inch-thick file received on January 21 from the National Personnel Records Center, which included the Dowling letter, the district court stated, “It is not at all clear to me what the truth of the matter is.” The court indicated that the file was “very difficult to decipher” and not “self-explanatory.” The court stated that it could not resolve its uncertainty without “hearing from” a military “records custodian” or similar 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. As I will discuss in more detail below, the newly provided Miller and Woodring affidavits were precisely the evidence that the district court and the prosecutor on January 21 had described as fatally lacking. If the district court had not explicitly stated that evidence of the sort provided by the Miller and Woodring affidavits was needed to “decipher” Swisher’s file and to determine the truth, the majority’s conclusion that this evidence is merely cumulative might be understandable. But the district court’s explicit statement that it needed precisely this evidence makes it is impossible to conclude that the “substance” of the Miller and Woodring affidavits was not new. 2. Diligence Under the second part of the Harrington test, we ask whether the failure to discover the evidence sooner resulted from a “lack of diligence on the defendant’s part.” See Kulczyk, 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 evidence sooner. Instead, a court must ask 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 diligence.” 3 Wright, King & Klein, supra, § 557, at 559-60. The district court concluded that Hinkson had not been sufficiently diligent in discovering the new evidence. It wrote, “[T]he Court finds that Defendant is unable to establish that the failure to discover this evidence was not due to his counsel’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 diligent, 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 involving Swisher and Hinkson. Hinkson was represented in that suit by Wesley Hoyt, one of the two attorneys representing him in his criminal case. In further support of its conclusion, the district court pointed out that Swisher had discussed his purported war injuries even before the deposition, during his grand