                                                                           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                             NOT FOR PUBLICATION                            OCT 17 2011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.
