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.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.