FILED
NOT FOR PUBLICATION OCT 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30347
Plaintiff - Appellee, D.C. No. 2:07-cr-00179-RHW-5
v.
MEMORANDUM *
VIRGIL L. BURRIS, AKA Kooka,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Robert H. Whaley, Senior District Judge, Presiding
Submitted October 13, 2011 **
Seattle, Washington
Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and COLLINS,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
page 2
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.