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U.S. v. Hinkson, No. 065-30303 (11-5-09) (en banc). The 9th, sitting en banc, recasts its "abuse of discretion" standard of review. The test for "abuse of discretion" is now as follows:

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.

Pg. 14957.

The case arose from a prosecution to kill a federal prosecutor, agent, and judge. The key prosecution witness testified while wearing a Purple Heart medal. He lied about it. The government shrugged and said that the focus was on the fact that the defendant had believed that the witness was a Korean War vet (he was not). During trial, defense counsel moved to introduce the military records of the witness. It was unclear, at least to the court (Tallman, sitting as district judge) what the military records actually revealed. He kept out the records, and had instructed the jury to disregard the testimony about veteran status. After conviction, the defendant moved for a new trial, with new evidence that the witness had forged documents. The court denied the new trial motion, stating that the defense could have acted quicker, and that it was collateral anyway. Eventually this went en banc.

Bea, writing for the majority, delves at length into the need to clarify the "abuse of discretion" standard because there was a tension between an appellate court reversing when it formed a "definite and firm conviction that a mistake had been committed" and being denied the power to reverse if the district court's finding was "permissible." The 9th traces the definitions from Supreme Court cases, and compares the various standards for a "clearly erroneous" standard of review. The 9th upholds the preclusion of evidence and denial of new trial.

Dissenting, W. Fletcher (joined by Pregerson, Wardlaw, and Paez) argued that the trial court had abused its discretion, and that the barring of the evidence, and denial of new trial, met the new standard. The analysis is very factual, but the points made were that the witness who lied was the key prosecution witness, that he had a motive given his animosity toward the defendant, and the defense lawyer was not dilatory in his actions. The dissent used the Harrington test for the new trial analysis.

Turning back to the new test for "abuse of discretion," there is concern that this will effectively bar any review. It is true that the court has to use the correct legal standard, but the trilogy of "illogical, implausible, or without support in inferences" does seem daunting.

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