UNITED STATES of America, Plaintiff-Appellee, v. David Roland HINKSON, Defendant-Appellant, 585 F.3d 1247

Opinion by Judge BEA; Dissent by Judge WILLIAM A. FLETCHER. BEA, Circuit Judge: Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court. * :!= * Introduction David Hinkson refused to pay income tax on his business profits. He asserted the United States Constitution forbade the federal government from taxing a person’s income.

He was investigated by Internal Revenue Service Agent Steven Hines, prosecuted to a conviction for income tax evasion by United States Attorney Nancy Cook, and sentenced by United States District Judge Edward Lodge. While awaiting trial on his tax evasion case, Hinkson solicited his friend and employee Elven Joe Swisher to torture and kill Hines, Cook, and Lodge, for $10,000 per head. Swisher reported Hinksoris solicitations to federal authorities. Hinkson was indicted, tried, and convicted by a jury for solicitation of the murder of the three federal officials. Swisher testified on behalf of the government.

Hinkson then moved for a new trial principally on grounds that Swisher had fraudulently presented himself to Hinkson, and later to the judge and jury, as a Korean War veteran with experience in killing people, but he had no such war service nor experience. In brief, Swisher had falsely held himself out to be a war hero. The trial court denied the new trial motion. Hinkson appealed this denial of his new trial motion and several evidentiary rulings made by the trial court.

We granted en banc review of the panel’s decision to reverse the district court’s denial of Hinksoris new trial motion and, for the reasons explained below, we conclude that our “abuse of discretion” standard is in need of clarification.

The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.” Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we restate the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test. As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it.

Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record. Applying our “abuse of discretion” test, we affirm the district court’s rulings. Background Hinkson owned and operated a Grange-ville, Idaho water-bottling company called WaterOz, which sold bottled water with purported health benefits. Elven Joe Swisher was a water safety tester for a nearby independent water testing company.

In 2000, Hinkson hired Swisher to test the WaterOz water on an ongoing basis. Hinkson and Swisher became fast friends. Swisher told Hinkson he was a veteran of the United States Marine Corps and a firearms expert who had killed a number of people in the Korean War. Swisher would later testify this seemed greatly to impress Hinkson. In April 2002, according to Swisher, Hinkson asked him to torture and kill local attorney Dennis Albers and his family because Albers had been causing legal trouble for Hinkson. Hinskon offered Swisher $10,000 per “head” in payment.

Swisher thought Hinkson was joking and brushed off the suggestion. Meanwhile, Hinkson was refusing to pay federal income tax on his WaterOz profits, asserting that the Constitution prohibits the federal government from collecting income tax. Assistant United States Attorney Nancy Cook and Internal Revenue Service Special Agent Steven Hines led an investigation into Hinkson’s possible tax evasion. Swisher would later testify that in July or August 2002, Hinkson asked him if he remembered his request regarding Albers and his family.

Swisher said he did, and Hinkson told Swisher he wanted Cook and Hines and their families “treated in the same way as Albers.” “I know you’re used to it,” Hinkson prodded Swisher, “I mean, you have killed people.” Swisher, less convinced this time that Hinkson was joking, refused and threatened to report Hinkson to authorities. In November 2002, Cook and Hines executed search warrants on Hinkson’s home; Hines arrested Hinkson on tax evasion charges. The magistrate judge freed Hinkson on bail pending trial. Judge Edward J. Lodge of the United States District Court for the District of Idaho was assigned the case.

While Hinkson was on pretrial release on the tax evasion charges, Swisher later testified, Hinkson once again asked Swisher to torture and kill Cook and Hines and their families; this time he also added Judge Lodge to the list. Hinkson again offered Swisher $10,000 per “head,” and even “pleaded” with Swisher to do the deed, calling Swisher his “best friend.” Swisher declined. The relationship between Swisher and Hinkson soon soured. A WaterOz employee named Richard Bellon sued Hinkson for control of WaterOz, and Hinkson in turn sued Swisher. Swisher counterclaimed against Hinkson for more than $500,000.

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

Shortly thereafter, in Spring or Summer 2003, Swisher told an Idaho state prosecutor that Hinkson had solicited him to kill Cook, Hines, and Lodge. Swisher then contacted the FBI and told the FBI the same. On September 21, 2004, a federal grand jury in Idaho indicted Hinkson for soliciting the murders of Cook, Hines, and Lodge. The indictment contained 11 counts: Counts 1 through 3 charged Hinkson with violating 18 U.S.C. § 373 when he solicited Harding to torture and kill Cook, Hines, and Lodge in January 2003.

Counts 4 through 6 charged Hinkson with violating 18 U.S.C. § 373 when he solicited Harding to torture and kill Cook, Hines, and Lodge a second time, in March 2003. Counts 7 through 9 charged Hinkson with violating 18 U.S.C. § 373 by soliciting Swisher to torture and kill Cook, Hines, and Lodge. Counts 10 and 11 charged Hinkson with violating 18 U.S.C. § 115 by threatening to kill the children of Cook and Hines. Trial Hinkson’s two-week jury trial began January 11, 2005.

The government’s opening statement revealed its theory of the case as to counts 7-11: that Hinkson solicited Swisher in particular to murder Cook, Hines, and Lodge because Hinkson believed Swisher was a battle-hardened Marine veteran with numerous military kills to his name. The prosecution also stated that Swisher was, in fact, such a battle-hardened veteran. The government called Swisher to testify three days later. On direct examination, although the prosecutor asked whether Swisher had served in the “Armed Forces” — and Swisher testified accurately that he had served in the U.S.

Marine Corps — the prosecutor did not ask whether Swisher had engaged in combat or earned any decorations. Instead, the prosecutor confined his questions to what Swisher had told Hinkson of his combat experience. Swisher explained he had told Hinkson he was a Korean War veteran with substantial combat experience. Swisher also testified that Hinkson had solicited him to torture and kill Cook, Hines, and Lodge. On cross-examination, Hinkson’s attorney first sought to impeach Swisher’s credibility by establishing that Swisher harbored animosity toward Hinkson.

He asked about litigation involving the two former friends, and the bitter feud that had developed between them. Hinkson’s attorney also attacked inconsistencies in Swisher’s testimony. After he had finished his cross-examination of Swisher for such animosity toward Hinkson, Hinkson’s attorney asked for a sidebar conference with the judge and opposing counsel, outside the hearing of the jury.

There he pointed out that Swisher appeared to be wearing a Purple Heart on his lapel, and informed the court he had been trying to “dig into” Swisher’s military history for “some time” because he did not believe Swisher had served in the Korean War nor earned a Purple Heart. Hinkson’s attorney pointed out that Swisher, born in 1937, would have been between the ages of 13-16 during the Korean War of 1950-53.

Hinkson’s attorney then showed the court and counsel a letter he had received that morning from a Bruce Tolbert, an archives technician with the National Personnel Records Center, which maintained official military records for the Armed Forces (“Tolbert letter”). The Tolbert letter stated that Swisher’s official military record did not list him as entitled to any personal military decorations, including a Purple Heart. The prosecutor then noted that there was no testimony explaining what Swisher had on his lapel, and that the prosecutor did not know what it was.

The prosecutor also pointed out that he had not questioned Swisher about his military record during direct examination. Rather, Swisher was questioned only about what he told Hinkson about his military record, because the government’s theory of the case was that Hinkson’s belief in Swisher’s military experience was the reason he had solicited Swisher in particular to commit the murders. Hinkson’s attorney moved to re-open cross examination to inquire about Swisher’s purported military service and the object on his lapel.

The prosecutor suggested Hinkson’s attorney should not “go there.” But Hinkson’s attorney wanted to “go there,” and the court granted the motion to re-open cross-examination. In response to Hinkson’s attorney’s questions, Swisher testified he was wearing “a Purple Heart medal” awarded to him by the United States government, and that he served in combat “following” the Korean War on classified missions to free prisoners of war held in secret North Korean prison camps.

Hinkson’s attorney then placed the Tolbert letter (which stated Swisher had been awarded no medals) before Swisher and asked him whether he still maintained that he was a combat veteran who had earned a Purple Heart medal. Swisher reiterated that he did, and, in a moment of Perry Mason court-room drama, whipped from his jacket pocket a form titled “Replacement DD-214.” Swisher’s “Replacement DD-214” form was stamped “certified,” signed by a Capt. W.J. Woodring, and dated October 1957.

The form read that Swisher had been awarded, and was entitled to wear, the Purple Heart medal, the Silver Star, the Navy and Marine Corps medal with Gold Star, and the Navy and Marine Corps Commendation Medal with Combat “V.” The form also stated Swisher was injured by shrapnel in combat.

The court asked for a copy to be made of the “Replacement DD-214” form for each party to review; the prosecutor replied that he already had a copy — perhaps explaining why he had suggested to defense counsel he not “go there.” Hinkson’s attorney then moved for a mistrial on the ground the prosecutor admitted he knew of Swisher’s “Replacement DD-214” form previously and should have spoken up about it.

The prosecutor replied that Hinkson’s attorney, not the government, had brought up the issue whether Swisher was a decorated combat veteran, and the prosecutor had even warned Hinkson’s attorney not “to go there,” so the government bore no responsibility for Swisher’s testimony on the subject. The court agreed with the government that Hinkson’s attorney had tried for a “grandstand play” that had backfired. However, the court decided to instruct the jury that, after “a long day ...

I made a mistake in allowing the questioning with regard to the Purple Heart medal,” and the jury should “disregard completely all of Mr. Swisher’s testimony with regard to that military commendation.” Five days later, on January 19, 2005, Hinkson’s attorney told the court the National Personnel Records Center would provide a certified copy of Swisher’s full military record, but only pursuant to a court-issued subpoena. The court issued a subpoena for Swisher’s full military record that same day.

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

The Dowling letter was a response to Keeley’s inquiry to the Marine Corps records department after Swisher attempted to use the “Replacement DD-214” form he produced on the stand to obtain benefits from the Idaho branch of the Department of Veterans Affairs. Keeley had inquired of Dowling whether Swisher’s “Replacement DD-214” was legitimate. Dowling’s response letter stated Swisher’s purported “Replacement DD-214” form did not exist in Swisher’s official file.

Instead, according to the Dowling letter, the “Replacement DD-214” form in Swisher’s official file clearly read that Swisher had not been awarded any medals and that, in fact, he was injured in an automobile accident in Washington State, not in combat. Further, the Dowling letter noted several of the medals listed on Swisher’s purported “Replacement DD-214” form did not even exist in 1957, when the form was dated. That same day, January 21, 2005, Swisher’s official military file arrived at the court.

The file contained a “Replacement DD-214” form identical to the form described in the Dowling letter — that is, a form listing no medals and no combat wounds. Swisher’s official military file also contained the Dowling letter itself, and two photocopies of documents Keeley had sent to Dowling for authentication: (1) the Swisher-produced “Replacement DD-214” form, and (2) a letter Swisher provided Keeley along with it. This letter, which bore the signature of the same Woodring (now a Colonel) whose signature appeared on Swisher’s purported “Replacement DD-214” form, was dated October 16, 1957 (“Woodring letter”).

The Woodring letter stated the Purple Heart and other medals listed on Swisher’s purported “Replacement DD-214” form had been “certified” by military command and that Swisher was entitled to wear them.

After reading Swisher’s full military record in camera, the court informed counsel that Swisher’s military file appeared to state Swisher was involved in “top secret activities” and was “awarded the medals he says he was awarded.” The court concluded, however, the file was “very difficult to decipher” and the documents were “neither self-authenticating nor self-explanatory.” The court stated it was “not convinced” one way or the other whether the Swisher-produced “Replacement DD-214” form was credible because Swisher’s military record was “not explanatory.” The court said evidence that might establish whether Swisher was a fraud could include testimony from a custodian of military records who could interpret Swisher’s military file, or from Col.

Woodring, whose signature appeared on the Swisher-produced “Replacement DD-214” form. Hinkson’s attorney did not move for a continuance of the trial to allow him time to procure such a custodian to decipher the military record, or to procure testimony from Col. Woodring. Hinkson’s attorney nevertheless offered both the Dowling letter and Swisher’s military file into evidence.

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

The court gave Hinkson’s attorney an option to re-open cross-examination of Swisher to inquire about Swisher’s military record and the veracity of his prior testimony about his medals. The court also cautioned Hinkson’s attorney he could not introduce the Dowling letter or military record into evidence, because introduction of such extrinsic evidence was prohibited by Fed.R.Evid. 608(b). Hinkson’s attorney chose not to re-open cross-examination.

Four days later, on January 25, 2005, the government gave a closing argument that contended Hinkson’s belief that Swisher was a tough combat veteran with multiple kills to his name was the reason Hinkson solicited Swisher to kill Cook, Hines, and Lodge. The jury deliberated for two days before convicting Hinkson of soliciting Swisher to kill Cook, Hines, and Lodge. The jury deadlocked on whether Hinkson solicited Harding to kill Cook, Hines, and Lodge in March 2003, and acquitted Hinkson on each of the other counts.

Motion for a New Trial Hinkson timely moved for a new trial under Federal Rule of Criminal Procedure 33 based, in relevant part, on “newly discovered evidence” that Swisher’s “Replacement DD-214” form was forged and that Swisher committed perjury regarding his military record. Hinkson accompanied his motion with affidavits from

(1) Chief Warrant Officer W.E. Miller, the Marine Corps liaison to the National Personnel Records Center (“Miller affidavit”), and

(2) Col. Woodring, whose signature was affixed to the Woodring letter that validated the Swisher-produced “Replacement DD-214” form, as well as that apparently bogus “Replacement DD-214” form itself (“Woodring affidavit”). The Miller affidavit averred Swisher was never awarded any of the medals he claimed, and that he was injured in a private motor vehicle accident in Washington state. The Miller affidavit further stated that the Swisher-produced “Replacement DD-214” form was forged. The Woodring affidavit averred Col.

Woodring had never signed the letter in Swisher’s file that Swisher provided Keeley when seeking veterans benefits, and that the signature in the letter had been artificially superimposed. The Woodring affidavit also averred that Col. Woodring never signed Swisher’s purported “Replacement DD-214” form. The district court denied Hinkson’s motion for a new trial. The order denying Hinkson’s motion for a new trial stated the trial court’s findings that Hinkson failed to meet his burden of demonstrating a right to a new trial based on the five factors discussed in United States v.

Harrington, 410 F.3d 598 (9th Cir.2005). The Harrington factors are: (1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of the defendant’s lack of diligence; (3) the evidence must be “material” to the issues at trial; (4) the evidence may not be (

a) cumulative or (b) “merely impeaching”; and (5) the evidence must indicate that a new trial would “probably” result in acquittal. Id. at 601. First, the district court held “most” of the now-proffered evidence in the Miller and Woodring affidavits was not “newly discovered” because it contained no new information but only the substance of the evidence Hinkson had attempted to introduce at trial: that Swisher did not have the military record he claimed and was not entitled to the honors he testified he won.

The court thus found the evidence offered nothing substantively “new.” Second, the district court concluded Hinkson had not been diligent in acquiring the evidence contained in the Miller and Woodring affidavits. The court pointed out that Hinkson’s attorney stated during trial that he had been investigating Swisher’s military record for “quite some time” because he was doubtful, given Swisher’s 1937 birth date, that Swisher had served in the 1950-53 Korean War.

Further, the court noted that Swisher had testified, as a party witness in an October 2004 deposition — three months before Hinkson’s trial on murder solicitation charges — to his claimed, but perhaps bogus, military record. That deposition was taken by the same attorney who represented Hinkson in his criminal trial.

In addition, the court related that Swisher had testified to the same Korean War combat experience in his appearances before the federal grand jury investigating Hinkson’s tax and solicitation crimes, and the government had delivered transcripts of Swisher’s grand jury testimony to Hinkson a week before this case came on for trial. The court thus found Hinkson had sufficient opportunity and time to uncover and produce the evidence contained in the Miller and Woodring affidavits before the end of trial.

Third, the district court held Hinkson’s proffered evidence was not “material” to the issues at trial because the evidence was inadmissible under Federal Rule of Evidence 608(

b) as extrinsic evidence offered to impeach a witness on a specific instance of untruthfulness. The court also reiterated its earlier holding that the evidence was excludable under the Federal Rule of Evidence 403. Fourth, the district court found the proffered evidence was both cumulative of evidence proffered at trial and “merely impeaching.” The court found the evidence cumulative because it repeated Hinkson’s attorney’s assertions that Swisher was not the military hero he claimed to be, assertions Hinkson made at trial based on Swisher’s age.

The court found the evidence “merely impeaching” because it did nothing more than attack Swisher’s credibility regarding his military service rather than his testimony regarding the solicitations charged. Further, the Court found Hinkson had several other opportunities to question Swisher’s credibility, based on

(1) Swisher’s youth at the time of the Korean War,

(2) Swisher’s ongoing feud with Hinkson over WaterOz, and

(3) Hinkson’s opportunity to show the Dowling letter to Swisher in a re-opened cross-examination of Swisher (an offer Hinkson’s attorney had declined). Fifth, the district court found the proffered evidence did not indicate a new trial would “probably” result in acquittal, because the evidence would be inadmissible on such new trial under Federal Rule of Evidence 403 or 608(b).

Also, the court had ordered all testimony regarding Swisher’s Purple Heart stricken from the record and instructed the jury to disregard it, so the Miller and Woodring affidavits could have no practical effect on the jury’s deliberations; Swisher’s claim to the Purple Heart was no longer before the jury. Hinkson timely appealed his conviction on three grounds. First, Hinkson contends he was entitled to a new trial based on his discovery of the Miller and Woodring affidavits, which Hinkson contends conclusively established Swisher lied about his military record.

Second, Hinkson contends the district court erred by precluding Hinkson from introducing the Dowling letter and Swisher’s military file into evidence during trial. Third, Hinkson contends the government engaged in prosecutorial misconduct by mentioning Swisher’s military service in its closing argument when it had reason to doubt Swisher’s truthfulness. Analysis Motion for a New Trial We review a district court’s order denying a motion for a new trial made on the ground of newly discovered evidence for abuse of discretion. United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992).

We invoke that standard of review as we have hundreds of times before, but this case forces us to step back and consider precisely what “abuse of discretion” means, in the context of a trial court’s factual findings, as applied to legal rules. In this case, the district court’s analysis of Hinkson’s motion for new trial involved an application of fact to law — whether the facts as they occurred at trial, combined with Hinkson’s purported “newly discovered” evidence, warranted a new trial under controlling law.

We review applications of fact to law in one of two ways: if the district court’s application of fact to law “requires an inquiry that is essentially factual,” we review it as if it were a factual finding; if the district court’s application of fact to law requires reference to “the values that animate legal principles,” we review it as if it were a legal finding. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984).

Here, the entirety of the district court’s analysis rested on the specific facts as they occurred at trial and the relative factual importance of Hinkson’s purported “newly discovered” evidence. The court’s analysis did not rest on “the values that animate legal principles,” such as the meaning of due diligence or the conceptual basis for granting new trials, but instead was, in all respects, “essentially factual.” Accordingly, for standard of review purposes, we treat the district court’s application of fact to law here exactly the same way as we treat factual findings.

The Supreme Court explained the meaning of the abuse of discretion standard in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), where the court stated, “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Id. at 405, 110 S.Ct. 2447.

In other words, the Court defined abuse of discretion review of factual findings in terms of “clearly erroneous” review, holding that “[w]hen an appellate court reviews a district court’s factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.” Id. at 400-01, 110 S.Ct. 2447.

When considering whether a district court erred in applying law to facts, we look to the substance of the issue on review to determine if the question is factual or legal. “If application of the rule of law to the facts requires an inquiry that is ‘essentially factual,’ — one that is founded ‘on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,’ — the concerns of judicial administration will favor the district court, and the district court’s determination should be classified as one of fact renewable under the clearly erroneous standard.” McConney, 728 F.2d at 1202 (quoting Comm’r v.

Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960) (internal citation omitted)). This category includes questions such as motive, intent, and negligence. See id. at 1203-04. “If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.” Id. at 1202.

This category includes questions such as whether defendants’ conduct constituted a conspiracy in violation of the Sherman Act, and questions that implicate constitutional rights. Id. When reviewing factual findings, the Supreme Court has held that “a finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The U.S.

Gypsum Co. definition of “clearly erroneous” review permits an appellate court to find a trial court’s factual determination is clearly erroneous — regardless whether there is some record evidence on which the trial court grounded that determination — if the court of appeals decides, “definitely and firmly,” that the trial court made a “mistake.” The Court has repeatedly affirmed the U.S. Gypsum Co. explanation of the clearly erroneous standard of review. See, e.g., Easley v.

Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (noting that under the “clear error” standard of review, “a reviewing court must ask ‘whether, on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed’ ”). The year after U.S. Gypsum Co., however, the Supreme Court held in United States v.

Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949), that a trial court’s “choice between two permissible views of the weight of evidence is not ‘clearly erroneous’ ” where the evidence “would support a conclusion either way.” This contrasts with the notion expressed in U.S. Gypsum Co. that a reviewing court may reverse as clearly erroneous a trial court’s factual findings whenever the reviewing court develops a “definite and firm conviction” that the trial court made a “mistake.” Yet, as with the U.S.

Gypsum Co. explanation of clearly erroneous review, the Supreme Court has also repeatedly affirmed the Yellow Cab Co. definition of “clearly erroneous” review. See, e.g., Cooter & Gell, 496 U.S. at 400-401, 110 S.Ct. 2447 (1990) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). Because the Supreme Court has maintained both the Yellow Cab Co. and U.S. Gypsum Co.

definitions of “clearly erroneous” review, our court currently holds that “[a] district court abuses its discretion when it makes an error of law, rests its decision on clearly erroneous findings of fact, or when we are left with ‘a definite and firm conviction that the district court committed a clear error of judgment.’ ” United States v. 4.85 Acres of Land, More or Less, Situated in Lincoln County, Mont., 546 F.3d 613, 617 (9th Cir.2008).

This present standard, particularly given the final clause, is so broad as to provide us with little effective direction as to when we can exercise our power to reverse a district court’s factual finding. Despite the wide latitude seemingly provided to appellate courts by U.S. Gypsum Co.’s “definite and firm conviction” definition of clear error, we know from Yellow Cab Co. and its progeny that our review of a factual finding may not look to what we would have done had we been in the trial court’s place in the first instance, because that review would be de novo and without deference.

Rather, the scope of our review limits us to determining whether the trial court reached a decision that falls within any of the permissible choices the court could have made. In other words, the Supreme Court’s precedent convinces us that any “definite and firm conviction” of the reviewing court must still include some measure of deference to the trial court’s factual determinations. This principle is illustrated in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

In Anderson, the trial court had made a series of factual findings from which it concluded the female candidate for Recreation Director was skipped over for the job due to her gender, all in violation of Title VII of the Civil Rights Act of 1964.

On appeal, the Fourth Circuit, after giving “close scrutiny of the record,” Anderson, 470 U.S. at 571, 105 S.Ct. 1504, made findings contrary to those of the trial court: the court of appeals found that the female candidate was not, in fact, the most qualified candidate, and that, according to its own weighing of the evidence, the selection committee had not been biased against the candidate because she was a woman. Thus, the appellate court held the district court’s factual findings were clearly erroneous, and reversed.

Considering the analyses of both the trial court and the appellate court, the Supreme Court concluded that “[ejach has support in inferences that may be drawn from the facts in the record” and neither was “illogical or implausible.” Id. at 577, 105 S.Ct. 1504.

Because all the reasons for appellate court deference to trial court factual findings frame the proper issue as whether the trial court’s findings — not the appellate court’s — were clearly erroneous, the Court held the court of appeals had erred in concluding the trial court’s findings were clearly erroneous; the appellate court’s contrary findings were just as much a “permissible” view of the evidence as the trial court’s. See id. at 574, 105 S.Ct. 1504.

Thus, in Anderson, the Court held a trial court’s findings were not clearly erroneous even though the court of appeals had developed a “definite and firm conviction that a mistake has been committed,” id. at 573, 105 S.Ct. 1504, because the trial court’s “permissible” findings were not “illogical or implausible” and had “support in inferences that may be drawn from the facts in the record.” Id. at 577, 105 S.Ct. 1504. It follows that even when a court of appeals determines a trial court’s findings are “permissible” (Yellow Cab Co.) or not a “mistake” (U.S.

Gypsum Co.), the court of appeals must reverse if the district court’s determination is “illogical or implausible” or lacks “support in inferences that may be drawn from facts in the record.” In sum, this analysis leads us to conclude that, by way of the Anderson case, we can create an objective abuse of discretion test that brings the Yellow Cab Co. and U.S. Gypsum Co. lines of cases together. Our Abuse of Discretion Test We adopt a two-part test to determine objectively whether a district court has abused its discretion in denying a motion for a new trial.

The Supreme Court has held that a district court abuses its discretion when it makes an error of law. Cooter & Gell, 496 U.S. at 405, 110 S.Ct. 2447 (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law....”). Thus, the first step of our abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, we must conclude it abused its discretion.

If the trial court identified the correct legal rule, we move to the second step of our abuse of discretion test. This step deals with the tension between the Supreme Court’s holding that we may reverse a discretionary trial court factual finding if we are “left with the definite and firm conviction that a mistake has been committed,” U.S. Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525, and its holding that we may not simply substitute our view for that of the district court, but rather must give the district court’s findings deference, see Nat’l Hockey League, 427 U.S. at 642, 96 S.Ct. 2778.

Resolving that tension by reference to Anderson, we hold that the second step of our abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson, 470 U.S. at 577, 105 S.Ct. 1504.

If any of these three apply, only then are we able to have a “definite and firm conviction” that the district court reached a conclusion that was a “mistake” or was not among its “permissible” options, and thus that it abused its discretion by making a clearly erroneous finding of fact. A significantly deferential test that looks to whether the district court reaches a result that is illogical, implausible, or without support in inferences that may be drawn from the record makes particularly good sense in the context of a motion for new trial. See United States v.

Heath, 260 F.2d 623, 626 (9th Cir.1958) (“To prevent possible prejudice on trial beyond the general atmosphere of impartiality which traditionally pervades the courtroom, trial judges have wide discretion to methods of control. Among these are ... grant of new trial.”); Freund v. Nycomed Arnersham, 347 F.3d 752, 765 (9th Cir.2003) (“The district court is most familiar with the context of the trial, and enjoys broad discretion with regard to a new trial motion.”); see also Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (“The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.”). Accordingly, we hold that when we review for abuse of discretion a district court’s denial of a motion for a new trial, we first look to whether the trial court identified and applied the correct legal rule to the relief requested.

Second, we look to whether the trial court’s resolution of the motion resulted from a factual finding that was illogical, implausible,., or without support in inferences that may be drawn from the facts in the record.

In other words, our abuse of discretion test means that we do not automatically affirm, a district court’s factual finding if we decide it is “permissible,” and we do not automatically reverse a district court’s factual finding if we decide a “mistake has been committed.” Rather, in either case, we will affirm a district court’s factual finding unless that finding is illogical, implausible, or without support in inferences that may be drawn from the record.

Application of Our Abuse of Discretion Test Applying this test to the case at bar, we conclude the district court did not abuse its discretion in denying Hinkson’s motion for a new trial based on “newly discovered” evidence of the Miller affidavit (which averred Swisher was never awarded any of the medals he claimed, that he was injured in a private motor vehicle accident in Washington state, and that the purported “Replacement DD-214” form Swisher produced on the stand was forged) and the Woodring affidavit (which averred Col.

Woodring never signed the letter in Swisher’s file that Swisher provided Keeley when seeking veterans benefits, and that Col. Woodring never signed Swisher’s purported “Replacement DD-214” form, which Swisher produced on the witness stand). First, we look to whether the district court identified the correct legal standard. Here, the district court accurately identified the correct five-part legal test outlined in United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005), to analyze Hinkson’s motion for a new trial brought on the basis of newly discovered evidence.

The Harrington test requires a party seeking a new trial to prove each of the following: (1) the evidence is newly discovered; (2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (

a) cumulative or (

b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial. Id.

Second, because the Harrington test is essentially factual, requiring considerations that are “founded on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,” rather than requiring “consideration of abstract legal principles,” McConney, 728 F.2d at 1202, we look to whether the district court’s findings of fact, and its application of those findings of fact to the Harrington factors, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Under the initial step of the Harrington test, the district court found the Miller and Woodring affidavits did not contain “newly discovered” evidence because the substance of the affidavits was simply not “newly discovered.” The district court found that the information contained in the Miller and Woodring affidavits, while newly written, did not provide any new information that was not already considered and rejected from evidentiary admission by the court: the affidavits merely supported the previously proffered evidence that Swisher’s purported “Replacement DD-214” form was phoney and that he had not earned any medals.

The district court’s determination the proffered affidavit evidence was not “newly discovered” was logical and plausible, based on the facts in the record. Thus, the court’s conclusion did not constitute a clearly erroneous factual finding nor an abuse of discretion.

Second, the district court found Hinkson’s counsel was not diligent in seeking the purported newly discovered evidence, as required by the second Harrington step, because, before his re-opened cross-examination of Swisher at trial on January 14, 2005, counsel told the court he had been investigating Swisher’s military record for “quite some time.” In fact, three months before trial, the same counsel had represented Hinkson in a civil action in which Hinkson and Swisher were bitter adversaries, and had deposed Swisher.

At his deposition, Swisher claimed battlefield injuries from grenade explosions and that he was born in 1937, putting him at age 13-16 during the 1950-53 Korean War. (The government also disclosed Swisher’s grand jury testimony a week before trial, in which Swisher made the same claims.) Yet, counsel still did not procure the Miller and Woodring affidavits (much less Miller and Woodring’s presence as witnesses) until February 24 and 27, more than a month after the first cross-examination of Swisher and nearly four months after suspicions first should have been raised by Swisher’s deposition testimony in the civil action.

Nor did Hinkson’s counsel request a continuance during trial to seek out the proof contained in the Miller and Woodring affidavits, which was precisely the evidence the district court said might help it understand Swisher’s true military record. Based on these facts, the district court’s finding that Hinkson’s attorney did not exercise due diligence in seeking authoritative evidence of Swisher’s true military past was logical, plausible, and based on inferences drawn from the facts in the record. Thus, it was not a clearly erroneous finding nor an abuse of discretion.

Third, the district court found the Woodring and Miller affidavits were not material to the case in any event, as required by the next Harrington step, because they related evidence that would be inadmissible under Federal Rule of Evidence 403. The district court found the probative value of the evidence described in the Miller and Woodring affidavits was substantially outweighed by the danger of confusion of the issues, misleading the jury, undue delay, and waste of time.

After all, the material point was whether Swisher told Hinkson he had killed men in battle, not whether he had actually done so; the relevancy was to whether Hinkson offered Swisher money to kill three targets of Hinkson’s ire. The district court con-eluded that substantial time waste and confusion would result from proof of authentication and explanation of the documents, and all for a tangential issue unrelated to the factual issues to be resolved by the jury.

This conclusion, which rests within the traditional powers given to trial judges to conduct trials, was based on plausible inferences from facts in the record, especially given the district court’s advantage in determining how to run its courtroom efficiently. Thus, it was not a clearly erroneous finding nor an abuse of the court’s discretion.

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

Thus, the court found a new trial unnecessary under the fourth Harrington step, which requires the “newly discovered” evidence not be “cumulative.” The only new fact revealed by the Miller and Woodring affidavits was that the Woodring signature on the Swisher-produced “Replacement DD-214” form was a forgery. However, Hinkson’s attorney had already proffered evidence that such “Replacement DD-214” form was a forgery, in the form of the Tolbert and Dowling letters.

Accordingly, the district court’s conclusion that, based on the facts in the record, the information contained in the Miller and Woodring affidavits was cumulative of information in previously proffered evidence, was not illogical or implausible. Further, the district court found the evidence served no purpose other than to impeach Swisher, which also doomed Hinkson’s new trial motion under the fourth step of the Harrington test. Hinkson contends Swisher was a critical witness for the government’s case, so any impeachment of his credibility would have undermined the government’s entire case.

But, even if Hinkson’s contention were not post-hoc speculation, it does not change the fact that evidentiary admission of the extrinsic Miller and Woodring affidavits would serve no purpose other than to impeach Swisher’s testimony as to his military record rather than his testimony as to Hinkson’s solicitations.

It is not material whether Swisher’s wearing of a miniature Purple Heart when he testified constituted a statement regarding his military service, because the Miller and Woodring affidavits would serve only to impeach that statement, and thus still not constitute evidence that Swisher did not portray himself as a grizzled combat killer to Hinkson or that Hinkson did not solicit Swisher to kill the three targeted individuals. Thus, the district court’s finding that the “newly discovered” evidence served only to impeach Swisher’s testimony was logical, plausible, and based entirely on the facts in the record.

Consequently, it was not a clearly erroneous finding nor an abuse of discretion. Finally, the district court found that because the government’s theory of the case was simply that Hinkson believed Swisher was a battlefield veteran, and not that Swisher actually was one, the evidence described in the Woodring and Miller affidavits did not make it probable the jury would acquit on retrial, as required by the fifth step of the Harrington test. At most, the affidavits related evidence that Swisher was a liar with regard to his military past.

But extrinsic evidence that someone lied about a particular event in his past — such as the extent of his military service — is, as discussed, excludable under Rule 403. So, what effect on a jury could excluded evidence have? None. Thus, the district court’s finding that the “newly discovered” evidence was not likely to change the result in a re-trial was logical based on its evidentiary ruling and its plausible

interpretation of the facts in the record. Therefore, it was not a clearly erroneous finding nor an abuse of discretion. Accordingly, the district court (1) identified the correct legal standard to analyze Hinkson’s motion for a new trial, and (2) the court’s findings of fact, and its application of those findings of fact to the correct legal standard, were not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. Therefore, the district court did not abuse its discretion in denying Hinkson’s new trial motion.

Exclusion of Evidence at Trial Hinkson also contends the district court violated his constitutional rights to present a defense, to confront witnesses against him, and to a fair trial because the district court incorrectly refused to admit into evidence the Dowling letter (which stated Swisher’s “Replacement DD-214” form was not in Swisher’s official military file) and Swisher’s official military file itself, which the district court found to be unauthenticated and indecipherable. The district court found this evidence inadmissible under Federal Rules of Evidence 403 and 608(b).

Because we hold the district court did not abuse its discretion when it excluded the evidence under Rule 403, we need not reach the issue raised under Rule 608(b). Hinkson contends the district court erred by excluding the Dowling letter and Swisher’s military file from evidence under Rule 403. A district court’s Rule 403 determination is subject to great deference, because “the considerations arising under Rule 403 are ‘susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues.’ ” R.B. Matthews, Inc. v. Transamerica Transp.

Serv., Inc., 945 F.2d 269, 272 (9th Cir.1991).s Here, the district court weighed the limited probative value of the evidence — to impeach testimony by Swisher about his Purple Heart medal, which testimony the jury had already been instructed to disregard — against the time it would take to authenticate and explain the military file (which the court found facially indecipherable) and the risk of confusing the jury with the tangential evidence.

The court concluded the risk substantially outweighed the reward, and this conclusion, which was not illogical nor implausible based on the record, did not exceed the bounds of the district court’s discretion in applying Rule 403. Error in Closing Argument Hinkson contends the district court erred by failing to order a new trial sua sponte after the government’s closing argument because the prosecutor, knowing that Swisher likely was not a combat veteran, argued to the jury that Swisher told Hinkson he was a combat veteran, and that is why Hinkson solicited Swisher to murder Cook, Hines, and Lodge.

Review is for plain error because Hinkson failed to object below. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A plain error is (1) an error (2) that is plain, (3) that affects “substantial rights,” and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.2009). Hinkson’s contention lacks merit.

The government’s only references to Swisher’s military background in its closing argument were to point out that Swisher had told Hinkson he was a combat veteran— not that Swisher necessarily was one. Even if Swisher had never served in the military at all, it was enough that the jury found Hinkson believed he did. The government did not argue in closing that Swisher should be deemed more credible or believable on account of his purported military heroism, or that he was more likely to be a murderer-for-hire because of his military record.

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

We also hold the district court did not err by excluding the Dowling letter and Swisher’s military file from evidentiary admission under Rule 403. Finally, we hold the district court did not plainly err by failing to order a new trial sua sponte after the government’s closing argument. AFFIRMED. . The government eventually indicted and convicted Hinkson on tax evasion and related charges. United States v.

Hinkson, 281 Fed.Appx. 651, 653 (9th Cir.2008). . 18 U.S.C. § 373(a): "Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force ... against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or ... fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.” .

The jury would eventually acquit Hinkson on these counts. . The jury would eventually deadlock on these counts. . The jury would eventually convict Hinkson on these counts. . 18 U.S.C. § 115(a)(1)(A) (Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member): "Whoever ... threatens to assault, kidnap or murder a member of the immediate family of a United States official, a United States judge, [or] a Federal law enforcement officer ... [shall be imprisoned for a maximum of] six years.” . The jury would eventually acquit Hinkson on these counts. .

Hinkson neither objected to, nor moved to strike, this statement. The trial judge instructed the jury statements of counsel were not evidence of their content. The prosecutor did not repeat this claim in opening or closing argument. Hinkson does not assign this statement error on appeal. . Indeed, Hinkson's counsel had learned of Swisher’s claims of martial glory at Swisher’s deposition three months earlier in the Water-Oz case, and again with the recent delivery of the transcript of Swisher’s testimony before the Grand Jury that had indicted Hinkson for the charges on trial.

For more details, see infra at 1257. . A DD-214 form is the military’s official discharge form, which lists final rank and injuries or decorations, if any. . The only decoration before the jury was the Purple Heart, as to which the trial judge ordered all such testimony stricken and to be disregarded. The other decorations mentioned in the DD-214 were never mentioned to the jury. The DD-214 was not admitted into evidence; its content was not read to the jury. .

Hinkson makes no claim on appeal the “Replacement DD-214” produced by Swisher at trial, a copy of which was in the prosecutor’s file, constituted exonerating evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1s963). . As part of this appeal, the government sought and received judicial notice of documents that were not before the district court and that show the prosecutor received the Dowling letter on January 19, 2005. Hinkson makes no Brady claim on appeal as to the Dowling letter. .

Fed.R.Evid. 608(b): "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness ... 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.” .

Hinkson makes no claim the government produced testimony it knew was perjured. See Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). . Based on this evidence, on August 30, 2007, a jury convicted Swisher of wearing an unearned medal in violation of 18 U.S.C. § 704(

a) and other related offenses. . Hinkson appeals the district court's denial of his motion for a new trial solely based on Hinkson’s contention the district court erred in its consideration of his claimed “newly discovered” evidence of the Miller and Woodring affidavits. . Here, for instance, the correct legal rule for analyzing a motion for a new trial based on "newly discovered” evidence is found in the Hanington test. . Or "essentially factual” application of fact to law. See McConney, 728 F.2d at 1202. .

We do not think this test is redundant of the previous, conflicting explanations of clearly erroneous review: that the court of appeals must affirm a district court factual finding that is "permissible” (Yellow Cab Co.), but that the court of appeals must reverse a district court’s factual finding any time it "has a definite and firm conviction that a mistake has been made” (U.S. Gypsum Co.). First, according to Merriam-Webster, the word "permissible” simply means "allowable.” Merriam-Webster's Collegiate Dictionary, "permissible” (11th ed. 2008). But: what kind of a district court determination is "allowable”?

The word itself provides no objective answer, and thus a court of appeals might be bound to affirm a trial court’s finding that reflected the trial court’s subjective determination or whim. Our invocation of Anderson at the second step of our abuse of discretion test removes this risk by providing a more firm, objective guide to determine what kind of factual finding should be affirmed. Second, the "definite and firm conviction” standard essentially requires the court of appeals to decide with "conviction” that "a mistake has been made.” But: how is the court of appeals to know what constitutes a "mistake”?

Again, the answer is: a determination that is illogical, implausible, or without basis in the record. Once more, this test gives body to the otherwise totally open-ended standard that a court of appeals may reverse a district court’s “mistake.” Finally, we must remember the Supreme Court itself used the factors outlined in our abuse of discretion test to formulate its analysis in Anderson, and used those factors in a fashion that was not redundant or cumulative of the other explanations the Court gave for the clearly erroneous standard of review. .

This view of our test for abuse of discretion review — one that looks to whether the district court reaches a result that is illogical, implausible, or without support in inferences that may be drawn from the facts in the record — is one that already has partial support in a number of our cases and in those of other circuits. See, e.g., Wilderness Soc’y v. Babbitt, 5 F.3d 383, 387 (9th Cir.1993) ("The court’s decision ... is not implausible and, based upon this factor alone, the court’s decision would not be considered an abuse of discretion.”); see also Savic v.

United States, 918 F.2d 696, 700 (7th Cir.1990) ("A finding is clearly erroneous when, although there may be some evidence to support it, 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ We may have such a conviction if the trial judge's

interpretation of the facts is implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence.' ") (citations omitted), cert. den., 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 38 (1991); United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.2001) ("A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.”); Conte v. Gen. Housewares Corp., 215 F.3d 628, 634 (6th Cir.2000) ("[W]e cannot conclude that the district court’s decision was so unreasonable, illogical, or arbitrary as to constitute an abuse of discretion.”). .

Or "essentially factual” application of fact to law. See McConney, 728 F.2d at 1202. . Appellate review of a district court's decision to abstain from exercising jurisdiction over a case is not altered by our opinion today. A district court’s decision to abstain from exercising jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is reviewed de novo in this circuit. World Famous Drinking Emporium Inc. v. Tempe, 820 F.2d 1079, 1081 (9th Cir.1987). Moreover, in abstention cases arising under Railroad Commission v.

Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), "abuse of discretion” is a phrase used exclusively to perform a legal question analysis, not an analysis of factual findings. For example, in Pullman, the Supreme Court held, sua sponte, that the district court "should have exercised its wise discretion” to abstain from exercising jurisdiction, because a state statute could potentially decide the issue, a state court had not yet interpreted that state statute, and the application of that state statute could avoid the federal constitutional question in the case.

These were all legal, not factual, issues. In the rare case in which a district court's factual findings do affect its decision to apply the abstention doctrine, those factual findings would be reviewed for abuse of discretion as we clarify that standard today. For example, in Pullman, suppose a porter sues the Texas Railroad Commission in district court, and in its first response to the complaint, the Commission moves to dismiss on grounds the plaintiff is not actually a certified porter and has no standing to sue. The porter submits a certification document which the Commission claims is bogus.

The district court's ruling on the authenticity of the document, crucial to its decision on standing, would be reviewed for abuse of discretion. It would make no sense to review the district court's factual finding under a standard other than the abuse of discretion standard we announce today. If we attempted a de novo review of that factual finding, we would be straying far from our role as an appellate court. Rather, the sensible approach is to uphold the trial court’s finding of fact, provided that finding is not illogical, implausible, or without any support in the record. .

The district court cited to United States v. Waggoner, 339 F.3d 915, 919 (9th Cir.2003), which used the same test as did Harrington. . The minimum age for enlistment in the Armed Forces during the Korean War was 18, or 17 with parental consent. See 10 U.S.C. §§ 628, 634 (1952). . The dissent confuses the issue by stating that it was the government that was not diligent in investigating the record of its star witness at trial.

The issue is not what the government should or should not have done to assist defense counsel in determining whether Swisher was lying about his military record (a fact that is not material to the underlying issue at trial). Harrington asks this: did defense counsel act diligently in pursuing the evidence it wishes to proffer at a new trial? Harrington, 410 F.3d at 601. Defense counsel waited months after being put on notice Swisher's military service claims could be bogus before procuring the Woodring and Miller affidavits and failed to even request a continuance from the district court in the interim.

The district court correctly found that defense counsel was not diligent. . This is a similar issue to that which arises in cases where undercover police officers sell cocaine-labeled powdered sugar to unsuspecting purchasers, who are then charged with attempted purchase of a controlled substance; the only relevant question is whether the purchaser thought he was buying cocaine, not whether it was indeed cocaine that was purchased. United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir.1978). .

It is speculation to conclude acknowledgment of Swisher's routine, rather than heroic, military history would cause the government to keep him off the stand on a retrial. Prosecutors are accustomed to proving their cases through unsavory individuals, and a timely pre-trial motion would limit questioning about Swisher's military history other than as told to Hinkson. As the dissent states at length, Swisher's credibility could now be impeached additionally by proof of his conviction for wearing an unearned medal. But that conviction had not occurred at the time of Hinkson’s new trial motion and could play no

part in the trial judge’s estimation of the probable result of a new trial. The trial judge did not err.