USA v. Gage, Jr. et al.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
VERSUS
LIONEL DUNCAN
CRIMINAL ACTION
NO. 24-132
SECTION “O”
ORDER AND REASONS
In April 2026, a trial jury convicted Defendant Lionel Duncan of conspiracy to
distribute and possess with intent to distribute cocaine and methamphetamine and
use of a communication facility in furtherance of the conspiracy.1 Duncan is currently
awaiting sentencing.2 Now pending before the Court are Duncan’s (1) motion3 for a
new trial based on trial errors and an insufficiency of evidence and (2) supplemental
motion4 for a new trial based on newly-discovery evidence, both filed pursuant to
Federal Rule of Criminal Procedure 33. The government opposes5 the motions.
For the following reasons, Duncan’s motions for a new trial are DENIED.
I. 	RULE 33 STANDARD
“Upon the defendant’s motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires.” F ED. R. CRIM . P. 33. “A new trial is
granted only upon demonstration of adverse effects on substantial rights of a
defendant.” United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004) (citing United
States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997)). In the Fifth Circuit, “[t]hese
1 ECF No. 372.
2 ECF No. 415.
3 ECF No. 393.
4 ECF No. 397.
5 ECF Nos. 395, 406.
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motions are disfavored and reviewed with great caution.” United States v. Erwin, 277
F.3d 727, 731 (5th Cir. 2001) (citing United States v. Bowler, 252 F.3d 741, 747 (5th
Cir. 2001)). Generally, the burden is on the defendant to show that a new trial is
warranted. United States v. Johnson, 713 F. Supp. 2d 595, 607 (E.D. La. 2010).
II. 	INITIAL MOTION FOR A NEW TRIAL
In his initial motion,6 Duncan argues for a new trial pursuant to Rule 33 on
three grounds: (1) the Court erred in denying his motion in limine to exclude the
testimony of government cooperator Earl Henry, Jr., as inadmissible Rule 404(b)
evidence; (2) the jury’s verdict is against the weight of the evidence; and (3) the
cumulative effect of errors deprived Duncan of a fair trial. None of these arguments
persuade.
A. 	Earl Henry’s Testimony Was Properly Admitted
Earl 	Henry’s 	testimony 	was 	properly 	admitted 	because 	it 	was 	evidence
intrinsic 	to 	Count 	One, 	the 	charge 	that 	Duncan 	conspired 	to 	distribute
methamphetamine and cocaine.7 Across 65 pages of trial testimony, Henry described
selling pound-quantities of methamphetamine to Duncan and Duncan’s half-brother,
coconspirator Linez Green.8 Henry testified Duncan used code words to discuss
methamphetamine, including the terms “C” and “window.” The government also
displayed Telegram messages between Duncan and Henry where they discussed
6 ECF No. 393.
7 See generally ECF No. 411.
8 In his trial testimony and in his statements to law enforcement, Henry was inconsistent in
describing how many times he sold methamphetamine to Duncan. Duncan cross-examined Henry
extensively on this inconsistency.
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methamphetamine and other drug transactions.
Rule 404(b) does not apply to other act evidence that is intrinsic to the crime
charged. United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016). “Evidence of
other acts is intrinsic when the evidence of the other act and the evidence of the crime
charged are inextricably intertwined or both acts are part of a single criminal episode
or other acts were necessary preliminaries to the crime charged.” United States v.
Lucas, 849 F.3d 638, 643 (5th Cir. 2017) (internal quotation omitted). Intrinsic
evidence is admissible to permit the jury to “evaluate all of the circumstances under
which the defendant acted.” United States v. Rice, 607 F.3d 133, 141 (5th Cir.) (citing
United States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989)).
Even though Henry was charged with a different conspiracy, the evidence
offered through Henry’s testimony was inextricably intertwined with the evidence of
Duncan’s involvement in his own charged methamphetamine conspiracy and, thus,
properly 	admitted as 	intrinsic evidence. 	The 	government 	proved that 	Duncan
purchased methamphetamine from Henry and then sold that methamphetamine in
confederation 	with 	Green 	and 	other 	coconspirators. 	Duncan’s 	purchase 	of
methamphetamine from Henry occurred during the same timeframe as Duncan’s
alleged conspiracy, which began on a date unknown and continued until June 5, 2024.
Moreover, the government alleged, and proved through its evidence at trial, that
Duncan conspired with those known and unknown to the grand jury, including
Henry.
Contrary to Duncan’s argument, Henry’s testimony should not have been
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limited by the buyer-seller rule. “The buyer-seller exception prevents a single buy-
sell agreement, which is necessarily reached in every commercial drug transaction,
from automatically becoming a conspiracy to distribute drugs.” United States v.
Delgado, 672 F.3d 320, 333 (5th Cir. 2012). “The rule shields mere acquirers and
street-level users, who would otherwise be guilty of conspiracy to distribute, from the
more severe penalties reserved for distributers.” Id. Here, the government’s evidence
against Duncan went beyond a single purchase of drugs. The government’s evidence
showed that Duncan purchased methamphetamine from Henry and then, working in
confederation with his coconspirators, sold methamphetamine and cocaine as part of
a plan to distribute drugs to others.
Even if Henry’s testimony were deemed extrinsic rather than intrinsic, it still
would have 	been 	admissible 	under Rule 	404(b). 	Evidence 	of 	prior offenses 	is
admissible if “it is (1) relevant to an issue other than the defendant’s character, and
(2) the incremental probative value of the evidence is not substantially outweighed
by the danger of unfair prejudice to the defendant.” United States v. Thomas, 348
F.3d 78, 86 (5th Cir. 2003) (quoting United States v. Peters, 283 F.3d 300, 312 (5th
Cir. 2002)). In a case involving drug-trafficking, intent is always material; and when
a defendant pleads not guilty, the issue of intent is sufficiently raised to permit the
admission of 404(b) evidence. United States v. Pompa, 434 F.3d 800, 805 (5th Cir.
2005). Here, Henry’s testimony would have been properly admitted as 404(b) evidence
to show Duncan’s intent and knowledge to conspire to distribute methamphetamine.
Moreover, Duncan cannot show undue prejudice. See United States v. Bell, 584
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F.3d 478, 486 (2d Cir. 2009) (reversing district court’s order of new trial when the
introduction of inadmissible evidence was not so clearly prejudicial that the jury
rendered “a seriously erroneous result” or that the verdict was “a miscarriage of
justice” in light of the entire record (quoting Phillips v. Bowen, 278 F.3d 103, 111 (2d
Cir. 2002))); United States v. LiCausi, 167 F.3d 36, 50 (1st Cir. 1999) (denying a
motion for new trial when witness statements, although admitted in error, did not
work such prejudice that a new trial was necessary when the weight of additional
evidence was overwhelming). The admission of Henry’s testimony, when viewed in
context of the overwhelming evidence at trial, was not substantially outweighed by a
danger of unfair prejudice to Duncan.
B. 	The Jury’s Verdict Was Not Against the Weight of Evidence
Duncan next argues that the Court should set aside the jury’s verdict because
the verdict is against the weight of the evidence and a new trial is required in the
interest of justice. A judge’s power to grant a new trial based on a different
assessment of the evidence must be “exercised with caution” and “invoked only in
exceptional cases.” United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971)
(Wisdom, J.) (quoting 2 Wright & Miller’s Federal Practice & Procedure § 553 (1969)).
The judge cannot “entirely usurp the jury’s function . . . or simply set aside a jury’s
verdict because it runs counter to result the district court believed was more
appropriate.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005). The Fifth
Circuit has articulated the standard in this way:
The judge’s ability to override the jury verdict exists only when the
evidence weighs “heavily against the verdict.” And the authority should
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be exercised only when the verdict may have resulted in a “miscarriage
of 	justice.” 	The 	“miscarriage 	of 	justice” 	requirement 	reflects 	the
common-law roots of the new-trial power as a backstop against unjust
verdicts, and the modern Rule’s limitation that new trials should be
granted only when the “interest of justice so requires[.]”
United States v. Crittenden, 46 F.4th 292, 296–97 (5th Cir. 2022) (cleaned up).
In Duncan’s case, the evidence on the whole does not weigh heavily against the
verdict—on the contrary, the government introduced ample evidence supporting the
guilty verdict. That evidence included testimony from three government cooperators:
Henry, who testified that he sold pound-quantities of methamphetamine to Duncan;
Rydelle Rounds, who testified that he sold cocaine to Duncan and conspired with
Duncan and others to obtain cocaine from Houston and distribute it in Thibodaux;
and Christopher Watson, who testified that Duncan admitted his drug-trafficking
activities while they were both incarcerated at the Plaquemines Parish Detention
Center. This cooperator testimony was corroborated by, inter alia, surveillance
footage, text and phone communications involving Duncan and his coconspirators,
agent testimony, and drug seizures of Duncan’s named and unnamed coconspirators.
The jury also heard that Duncan destroyed cell phones, a common practice for drug
dealers, and was associated with a social media account used to intimidate one of the
cooperating witnesses. This evidence, taken together, does not preponderate heavily
against the jury’s verdict.
C. 	Duncan Was Not Denied a Fair Trial Based on Cumulative Error
Duncan has not established a single trial error, much less an accumulation of
errors, warranting a new trial. Duncan’s claims of error—that agents made no
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controlled purchases of drugs from Duncan; that drugs were not seized during a
search of Duncan’s residence and car; that the government’s cooperator testimony
was unreliable; and that agents misinterpreted intercepted drug talk—are all claims
of evidence insufficiency and unreliability. These arguments were presented to, and
ultimately rejected by, the jury, and the Court finds no need to disturb the jury’s
considered judgment.
For all these reasons, the Court denies Duncan’s initial motion for new trial.
III. 	SUPPLEMENTAL MOTION FOR A NEW TRIAL
In his supplemental motion,9 Duncan introduces three newly discovered “Jail
Events Summary Reports” that, according to the defendant, materially undermine
the factual foundation of a key government witness.10 For the reasons that follow,
Duncan is not entitled to a new trial on the grounds of newly-discovered evidence.
A. 	Factual Background
In preparation for trial, the Government filed a notice of intent to use 404(b)
evidence.11 The notice did not reveal the names of any witnesses, but did disclose that
one witness had been incarcerated at Plaquemines Parish Detention Center with
Duncan and his coconspirator, John Paul Gage.12 According to the notice, this witness
would testify to overhearing Duncan and Gage boasting about the conspiracy and
plotting to “eliminate” witnesses that were cooperating with the government.13
9 ECF No. 397.
10 ECF No. 397-1 at 2–3.
11 ECF No. 343.
12 Id. at 2.
13 Id.
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Additionally, Duncan directly told this witness on a separate occasion that he was
the “muscle” for the drug trafficking organization.14 Duncan opposed the introduction
of this witness’s testimony but never denied making these statements to anyone at
Plaquemines.15 Six days before trial, the government revealed at a pre-trial hearing
that the witness was Christopher Watson, a fellow inmate at Plaquemines.16
At trial, Watson testified that he befriended Duncan while at Plaquemines.
Watson knew of Duncan’s alias (“Headbaby”) and claimed the men talked directly
three or four times. During these conversations, Duncan explained how he would
have women go to Houston to pick up product and Gage would go with them to meet
with the supplier. Watson also alleged he personally overheard Duncan boasting to
other inmates about drug trafficking and eliminating witnesses. Watson later
memorialized this information in an unsolicited letter to AUSA Stuart Theriot,17
testifying that he did not expect to receive anything in exchange for his cooperation.
The defense had an opportunity to cross-examine Watson before the jury.18 The
cross-examination included impeachment evidence of Watson’s 14 previous charges
for forgery, bank fraud, money laundering, identity theft, filing false records,
attempted auto theft, and violation of supervised release. Watson was also confronted
with the cooperation agreement he signed in connection with a 2019 plea agreement.
Finally, the defense questioned Watson’s motivation for testifying due to his post-
14 Id.
15 ECF No. 357.
16 ECF No. 363; ECF No. 406 at 4.
17 ECF No. 397-1 at 1.
18 ECF No. 397-1 at 12.
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conviction application for ineffective assistance of counsel, which Watson filed around
the same time he sent his letter to AUSA Theriot. Watson stated that “no promise
has been made” and he was not “not expecting anything from the government” in
exchange for his cooperation. Notably, the defense never questioned the foundational
premise of whether Watson directly interacted with Duncan at Plaquemines.
Shortly after the verdict,19 the defense requested “Jail Events Summary
Reports” from the Plaquemines Parish Sheriff’s Office for Duncan,20 Watson,21 and
Gage.22 	The 	Summary 	Reports 	included 	information 	about 	the 	men’s 	cell
designations, court transports, and other incidental events.23 The Reports confirm
that 	the 	three 	men 	were 	never assigned to 	the 	same 	housing 	code 	while 	at
Plaquemines.24 Because they were never housed together, Duncan alleges that he
could not have been in close enough proximity for Watson to befriend him and
overhear the inculpatory statements.25
Based on this newly discovered evidence, Duncan urges this Court to grant a
new trial under Federal Rule of Criminal Procedure 33(b)(1).26 Alternatively, Duncan
argues the Reports support relief under Brady, Giglio, and Napue.27 Defendant also
requests an evidentiary hearing on the motion.28
19 ECF No. 397-1 at 13.
20 ECF No. 397-2.
21 ECF No. 397-3.
22 ECF No. 397-4.
23 ECF No. 397-1 at 2.
24 ECF No. 397 at 2.
25 ECF No. 397-1 at 8–9, 15, 20
26 Id. at 3.
27 Id. at 15.
28 Id. at 20.
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B. 	Legal Framework
To receive a new trial under Rule 33 based on newly-discovered evidence, a
defendant must demonstrate the following elements:
(1) the evidence is newly discovered and was unknown to the defendant at
the time of trial;
(2) failure to detect the evidence was not due to a lack of diligence by the
defendant;
(3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and
(5) the evidence introduced at a new trial would probably produce an
acquittal.
Bowler, 252 F.3d at 747; see Berry v. State, 10 Ga. 511 (1851). Commonly referred to
as the Berry rule, this is a high bar to clear. United States v. Sullivan, 112 F.3d 180,
183 (5th Cir. 1997). A defendant must establish all five elements to prevail. Id. “[I]f
the defendant fails to demonstrate any one of these factors, the motion for new trial
should be denied.” Wall, 389 F.3d at 467 (citing United States v. Freeman, 77 F.3d
812, 817 (5th Cir. 1996)).
Additionally, the government has a constitutional duty to disclose evidence
that is both favorable to the defendant and material to either guilt or punishment.
Brady v. Maryland, 373 U.S. 83, 87 (1963). The government must also disclose
evidence that would materially impeach a government witness. Giglio v. United
States, 405 U.S. 150, 154 (1972). “[F]avorable evidence is material . . . ‘if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433
(1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). To receive a new
trial, a defendant must demonstrate that “(1) the prosecution suppressed evidence;
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(2) the evidence was favorable to him; and (3) the evidence was material either to
guilt or punishment.” United States v. Severns, 559 F.3d 274, 278 (5th Cir. 2009).
Finally, a conviction obtained through the prosecution’s knowing use of false
testimony must be set aside if there is any reasonable likelihood that the testimony
could have affected the jury’s judgment. Napue v. Illinois, 360 U.S. 264, 269 (1959).
The Fifth Circuit applies elements 1–3 of the Berry rule to motions for a new trial
based on false testimony. United States v. MMR Corp., 954 F.2d 1040, 1046–47 (5th
Cir. 1992). Relief on this ground also requires a showing that the testimony in
question was actually false. United States v. Chagra, 735 F.2d 870, 874 (5th Cir.
1984).
C. 	Duncan Fails to Satisfy All Five Elements of the Berry Rule
Duncan 	claims 	the 	newly 	discovered 	Summary 	Reports 	satisfy 	all 	five
elements of the Berry rule. The Court does not agree.
1. 	Berry Factor 1: The Summary Reports were unknown to Duncan at
the time of trial.
To satisfy the first Berry factor, the defendant must show that “the evidence
was newly discovered and unknown to the defendant at the time of the trial.” United
States v. Ardoin, 19 F.3d 177, 181 (5th Cir. 1994). Duncan argues that the Summary
Reports 	constitute 	new 	evidence 	because 	they 	were 	not 	in 	defense 	counsel’s
possession at trial or at any time before the verdict.29 It is uncontested that the
Sherriff’s Office did not generate the records until after Duncan’s conviction.30 But
29 Id. at 22.
30 Duncan’s trial began on April 27, 2026, and the Summary Reports were generated on May
11, 2026. Id. at 12.
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the government raises reasonable questions as to why Duncan would allow Watson
to testify without questioning whether the men even interacted at Plaquemines.31
Still, while the information contained in the Summary Reports may not be new to the
defendant, the physical reports are. See United States v. Owings, No. 18-CR-120, 2021
WL 1723544, at *3 (W.D. La. Apr. 30, 2021), aff’d, No. 21-30279, 2022 WL 414288
(5th Cir. Feb. 10, 2022) (“The Court finds that while the substance of the letters is not
new to the defense, the physical mailings, and what they could possibly implicate, is
new.”).
Therefore, because the Summary Reports did not exist at the time of trial, the
Court finds the first Berry factor satisfied.
2. 	Berry Factor 2: Duncan failed to exercise due diligence by declining
to seek a continuance or other otherwise investigate the validity of
Watson’s testimony during trial.
To satisfy the second Berry factor, the defendant must show that the failure to
detect the evidence was not due to a lack of diligence. United States v. Reedy, 304
F.3d 358, 372 (5th Cir. 2002). “When a defendant becomes aware of evidence early in
a trial, it is incumbent upon the defendant to seek a continuance or demonstrate
efforts to obtain the evidence before it will be considered newly discovered.” Wall, 389
F.3d at 469.
Duncan argues that the government’s late witness disclosure impeded the
defense’s ability to thoroughly investigate and perform due diligence on Watson’s
testimony.32 The Court accepts that, given the short timeline, Duncan could not have
31 ECF No. 406 at 2.
32 ECF No. 397-1 at 12.
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obtained the Summary Reports before trial. But this does not absolve Duncan of his
obligation to investigate the issue once he became aware of Watson’s intent to testify.
Duncan did not need the Summary Reports to tell him whether the two men ever
interacted at Plaquemines; he would have known this information as soon as Watson
was identified as the cooperating witness.
Moreover, during direct examination, Watson claimed the two became friends
at Plaquemines and that he personally overheard Duncan admit to drug trafficking.
Despite now alleging they were never “within speaking distance,”33 Duncan did not
challenge the government’s extensive pre-trial briefing, nor did he address on cross-
examination the issue of whether the men were held together. If Duncan knew he
had never spoken to Watson at Plaquemines, he should have exercised due diligence
and began investigating the issue before trial. See United States v. Mulderig, 120 F.3d
534, 546 (5th Cir. 1997) (affirming that the defendant failed to exercise due diligence
by choosing not to seek a continuance or “investigate the [] issue further” when new
evidence was introduced at trial). Instead, Duncan waited until after his conviction
to request the Summary Reports to attack the foundation of Watson’s testimony.
Because the defendant did not seek a continuance or otherwise investigate the
underlying premise of Watson’s testimony—that the two men were housed together
in pretrial detention—the Court finds that Duncan has failed to satisfy the second
Berry factor.
3. 	Berry Factors 3 and 4: The Summary Reports are not material
because their only evidentiary purpose is to impeach Watson’s trial
33 Id. at 9.
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testimony.
To satisfy the third and fourth Berry factors, the newly discovered evidence
must be material and cannot be merely cumulative or impeaching. Wall, 389 F.3d at
467. Impeachment evidence is evidence offered to discredit a witness or to reduce the
effectiveness of testimony by casting doubt on the witness’s credibility. Vaughn v.
Hobby Lobby Stores, Inc., 539 F. Supp. 3d 577, 593 (W.D. La. 2021). “Newly discovered
evidence is not material if its only evidentiary purpose is to impeach trial testimony.”
United States v. McClaren, 13 F.4th 386, 416–17 (5th Cir. 2021); see also United
States v. Sipe, 388 F.3d 471, 489 (5th Cir. 2004) (“[E]vidence which impeaches an
already impeached witness is by definition cumulative.”).
Duncan insists the Summary Reports are material because they “directly
contradict the foundational fact on which Watson’s entire testimony rested: that he
was with Duncan at Plaquemines.”34 Upon review, the Summary Reports establish—
and the defendant does not dispute35—that Watson and Duncan were both detained
at Plaquemines from September 11, 2025, through November 6, 2025.36 While the
Reports fail to conclusively place the men together at Plaquemines, they do not
“directly contradict” that possibility.
Moreover, neither Watson nor the government alleged that the men were
housed together. Watson testified that he met Duncan once he was transferred to the
federal tier of Plaquemines. Watson further explained that the men were not together
34 Id. at 13.
35 Id. at 7, 10
36 Id. at 1.
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all the time. According to Watson, he would find Duncan when he left his cell to go to
the microwave, get water, take a shower, or use the phone. The Court cannot find
anything in the Summary Reports that “directly contradict[s]” the notion that
Duncan and Watson may have communicated at Plaquemines. If anything, the
Reports confirm that the men were incarcerated at the same facility at the same time,
consistent with Watson’s testimony. See MMR Corp., 954 F.2d at 1047 (upholding
that a statement was not newly discovered evidence “because it was largely consistent
with [] trial testimony”).
Thus, the logical conclusion is that Duncan hopes to introduce the Summary
Reports to cast doubt on Watson’s testimony. But “evidence [that] only casts doubt on
the veracity of [witness] testimony . . . is merely impeachment evidence, and therefore
insufficient to entitle [defendant] to a new trial.” United States v. Holmes, 406 F.3d
337, 359–60 (5th Cir. 2005); see also United States v. Garcia–Esparza, 388 F. App’x
407, 408 (5th Cir. 2010) (per curiam) (holding that evidence introduced to show a
witness “lied extensively on the witness stand . . . is impeaching and not a basis for a
new trial”).
Moreover, Watson had already been impeached at trial. Watson admitted to
charges of forgery, bank fraud, money laundering, identity theft, and filing false
records. He was serving a sentence for attempted auto theft in violation of his
supervised release. On cross-examination, the defense introduced evidence that
Watson had signed a cooperation agreement in connection with his 2019 plea
agreement. 	The 	defense 	also 	questioned 	Watson’s 	motives 	for 	testifying 	and
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introduced the possibility of post-conviction relief in exchange for his cooperation. The
jury had the opportunity to evaluate these facts at trial and assess Watson’s
credibility. See United States v. O’Keefe, 119 F. App’x 589, 592 (5th Cir. 2004) (holding
that a witness’s newly discovered recorded conversations were not “material in the
context of the lengthy criminal trial during which [witness] was subjected to
extensive cross-examination”). The Summary Reports would therefore only serve to
impeach an already impeached witness. See Sipe, 388 F.3d at 489.
Because the Summary Reports are merely impeachment evidence and thus not
material, the Court finds that Duncan has failed to satisfy the third and fourth Berry
factors.
4. 	Berry Factor 5: The Summary Reports would probably not have
resulted in an acquittal because there was considerable evidence of
Duncan’s involvement in the drug trafficking conspiracy outside of
Watson’s testimony.
To satisfy the final Berry factor, the defendant must show that the evidence if
introduced at a new trial would probably produce an acquittal. Wall, 389 F.3d at 467.
“[T]he power to grant a new trial . . . should be invoked only in exceptional cases in
which the evidence preponderates heavily against the verdict.” United States v.
Robertson, 110 F.3d 1113, 1120 n.11 (5th Cir. 1997) (quoting United States v. Sinclair,
438 F.2d 50, 51 n.1 (5th Cir. 1971)).
Duncan 	argues 	that 	introduction 	of 	the 	Summary 	Reports 	would 	have
produced 	an 	acquittal 	because 	they 	contradict 	the 	only 	piece 	of 	first-person
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observational evidence presented by the government.37 But upon review, the Court is
convinced that there was sufficient evidence to support Duncan’s conviction even
without Watson’s testimony. At trial, the government presented testimony from two
other cooperating witnesses, wiretap calls, pole camera footage, cell phone messages,
and seized methamphetamine and cocaine associated with Duncan’s drug trafficking
activities.38 Furthermore, Watson’s credibility had already been impeached at trial.
Yet Duncan presents no explanation as to how impeachment of an already-impeached
witness would overcome the other evidence of guilt supporting the verdict. The
government 	has 	submitted 	credible, 	admissible 	evidence, 	and 	nothing 	in 	the
Summary Reports exonerates Duncan or weighs on any other issues that were before
the jury.
Due to the weight of additional evidence supporting Duncan’s conviction, the
Court finds that Duncan has failed to satisfy the fifth Berry factor. Therefore, the
Court declines to grant relief under Rule 33(b)(1).
D. 	The Summary Reports are not proper material for relief under
Brady, Giglio, or Napue.
Duncan further urges that the Summary Reports raise questions about the
government’s 	compliance 	with 	its 	Brady 	and 	Giglio 	disclosure 	obligations.39
According to Duncan, if the prosecution team had these records in their custody or
control, they would constitute material impeachment and exculpatory information
37 Id. at 14–15.
38 ECF No. 406 at 8.
39 ECF No. 397-1 at 15.
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that the government was obliged to disclose.40 But the Brady rule only extends to
evidence regarding the credibility of a witness when the testimony is material to the
case. Tassin v. Cain, 482 F. Supp. 2d 764, 770 (E.D. La. 2007), aff’d, 517 F.3d 770
(5th Cir. 2008). And the Court has already concluded that Watson’s testimony was
not 	material 	given 	the 	ample 	amount 	of 	evidence 	supporting 	Duncan’s 	guilt.
Moreover, the prosecution could not have suppressed this evidence because the
records did not exist before trial. As noted above, the Sheriff’s Office did not create
the physical reports until after the trial concluded, at the request of Duncan.
Additionally, Giglio is concerned with the disclosure of facts that would likely
affect the judgment of a jury. Giglio v. United States, 405 U.S. 150, 154 (1972). The
mandatory disclosures ensure the jury is fully informed of any incentives, such as
immunity or leniency agreements, that might motivate a witness to testify. Tassin,
482 F. Supp. 2d at 771–72. These concerns are not present here. Even assuming
arguendo that the 	Summary Reports cast doubt on Watson’s credibility, they
introduce no new motives or incentives to testify that were previously unknown to
the jury. Watson’s letter to AUSA Theriot was unpromoted and did not request any
immunity or leniency. At trial, Watson testified he was not expecting anything for his
cooperation and “no promise has been made.” The Court finds no evidence in the
Summary Reports that call into question Watson’s motivation to testify. The jury
therefore had all the information necessary to assess Watson’s credibility at trial.
Additionally, because Duncan failed to satisfy elements 2 and 3 of the Berry
40 Id.
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rule, the motion also fails for relief under Napue. See MMR Corp., 954 F.2d at 1046–
47 (applying the Berry rule factors 1–3 to a motion for new trial based on allegations
of false testimony). Even if the defendant could satisfy the Berry rule, the Summary
Reports do not show that Watson’s testimony was false. As discussed, neither the
government 	nor 	Watson 	ever 	alleged 	that 	the 	men 	were 	housed 	together 	at
Plaquemines. And nothing in the Summary Reports conclusively disproves Watson’s
testimony that the men interacted in common spaces, such as when using the phone
or getting water. At best, the Reports arguably (and feebly) cast doubt on Watson’s
testimony; but doubt does not mean his testimony was false. See United States v.
Stanford, 	823 	F.3d 	814, 	841 	(5th 	Cir. 	2016) 	(“[A]lthough 	the 	falsehoods 	that
[defendant] 	alleges 	are 	based 	on 	apparent 	evidentiary 	inconsistencies, 	it 	is
questionable whether one could describe the inconsistencies as false, let alone
material.”).
For these reasons, the Court declines to grant relief under Brady, Giglio or
Napue.
IV. 	CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s initial Rule 33 motion41 for a new trial,
arguing trial errors and the insufficiency of evidence, is DENIED.
IT 	IS 	FURTHER 	ORDERED that Defendant’s supplemental Rule 33
41 ECF No. 393.
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motion42 for a new trial based on newly-discovered evidence is DENIED.
IT IS FURTHER ORDERED that Defendant’s request43 for an evidentiary
hearing on the supplemental motion is DENIED.
New Orleans, Louisiana, this 14th day of October, 2026.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
42 ECF No. 397.
43 ECF No. 397-1 at 20.
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