                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                           FILED
                                                                          April 23, 2004
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT         Charles R. Fulbruge III
                                                              Clerk


                                No. 03-60706
                              Summary Calendar


                       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

                                CARLOS OWENS,

                                                       Defendant-Appellant.



          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 5:03-CR-9-2-BrS


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          A    jury   found    Carlos   Owens     guilty    of    conspiracy             to

distribute,    and    possession    with    the    intent        to   distribute,

controlled substances.        Owens filed a motion for a new trial based

on newly discovered evidence — a police report that contradicted

the testimony of the confidential informant as to his culpability

in the offense that led to him becoming an informant.                              Owens

appeals the district court’s denial of that motion.



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
            Motions for new trials based on newly discovered evidence

are disfavored by the courts and therefore are viewed with great

caution.     See United States v. Pena, 949 F.2d 751, 758 (5th Cir.

1991).     This court has established a four-part test, known as

the “Berry Rule,” for determining whether a new trial should be

granted on the basis of newly discovered evidence.             United States

v. Sullivan, 112 F.3d 180, 183 (5th Cir. 1997).         The four factors

are whether:    (1) the evidence was newly discovered and unknown to

the defendant at the time of the trial; (2) the failure to detect

the evidence was not a result of lack of due diligence by the

defendants; (3) the evidence is material, not merely cumulative or

impeaching;    and   (4)    the   evidence   will   probably     produce    an

acquittal.     Id.   If the defendant fails to meet one of the four

factors, the motion for new trial should be denied.             Id.

            Owens argues that the “Berry Rule” ought to be “relaxed”

in his case because of the nature of the evidence not presented —

perjured testimony.        He suggests that the “alternative criteria”

set forth in the “Larrison Rule” would assist this court in

determining if he received a fair trial.

            The Larrison Rule was annunciated by the Seventh Circuit

in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).

The rule “relaxes the standard for granting a new trial when

material, false or perjured testimony is presented at trial.”              See

Sullivan, 112 F.3d at 183 n.3.       Under the rule, a new trial should



                                      2
be granted when (1) the testimony given by a material witness was

false; (2) without the false testimony, the jury might have reached

a different conclusion; and (3) the party seeking the new trial was

“taken by surprise” by the testimony and was unable to meet it or

did not know if its falsity until after the trial.           Id.

            There is “some doubt” as to whether the Larrison Rule has

ever “taken hold” in this circuit.        See id.   At least six circuits

have rejected it.    See United States v. Williams, 233 F.3d 592, 594

(D.C. Cir. 2000)(collecting cases); United States v. Huddleston,

194 F.3d 214, 219 (1st Cir. 1999).        Moreover, the Seventh Circuit

has overruled Larrison and has adopted the reasonable probability

test.    See United States v. Mitrione,              F.3d          (7th Cir.

Feb. 9, 2004), 2004 WL 231508 at *5-6.

            Given the foregoing, we decline Owens’s invitation to

apply the Larrison Rule to these facts and affirm the district

court’s denial of the motion for a new trial based upon an

application of the Berry factors.

            Owens also argues that the district court abused its

discretion in rejecting his Brady1 claim based on a determination

that the Government did not know of the report’s existence.               He

argues    that   because   of   the   close   relationship    between    the

Government and the Natchez/Adams County officers, knowledge of the

report should have been imputed to the Government.


     1
        Brady v. Maryland, 373 U.S. 83 (1963).

                                      3
          Under    Brady,   the    Government’s     failure    to   disclose

evidence violates due process where the evidence is favorable to

the defense and material to guilt or punishment.           United States v.

Brown, 303 F.3d 582, 593 (5th Cir. 2002), cert. denied, 537 U.S.

1173 (2003). Nondisclosure of evidence affecting credibility falls

within Brady’s general rule.           Giglio v. United States, 405 U.S.

150, 154 (1972).   “Materiality is present if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.”               Brown,

303 F.3d at 593.   A reasonable probability exists when suppression

of the evidence undermines confidence in the outcome of the trial.

Id.

          Owens has not shown a reasonable probability that the

jury would have voted to acquit had defense counsel had access to

the police report.   The confidential informant’s testimony clearly

reflected that he was experienced in the drug trade, and he was

effectively   cross-examined      on    his   motives   for   acting   as   an

informant.    Moreover, the testimony of the informant was not the

only evidence of guilt introduced at trial.             The judgment of the

district court is AFFIRMED.




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