United States v. Virgil Burris

MEMORANDUM *** 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. “[WJhere 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. Footnotes [***] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.