Opinion
No. 10-30347 D.C. No. 2:07-cr-00179-RHW-5
10-17-2011
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VIRGIL L. BURRIS, AKA Kooka, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Idaho
Robert H. Whaley, Senior District Judge, Presiding
Submitted October 13, 2011
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Seattle, Washington
Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and COLLINS, District Judge.
The Honorable Raner C. Collins, District Judge for the U.S. District Court for Arizona, sitting by designation.
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One requirement for getting a new trial based on newly discovered evidence is that "the new evidence must not be merely cumulative or impeaching." Lindsey v. United States, 368 F.2d 633, 634 (9th Cir. 1966); see United States v. Kulczyk, 931 F.2d 542, 549 (9th Cir. 1991). Burris presents Swan's recantation, but Swan has repudiated his recantation. "[W]here the recantation has itself been repudiated, . . . the recantation becomes merely impeaching and could be used at a new trial only for the purpose of cross examining the witness, and not as substantive evidence." Lindsey, 368 F.2d at 636. This case does not present a rare exception where impeachment evidence alone might support a new trial, see United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992), because other witnesses corroborated aspects of Swan's trial testimony.
AFFIRMED.