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Prosecutors have opposed a motion for a new trial by Berman Jerry Nowlin Jr., the developer of the "Undead" series of NFTs, who was convicted of conspiracy to commit money laundering and wire fraud. In a filing on Wednesday, prosecutors argued that Discord messages cited in Nowlin's motion do not meet the legal or factual requirements to grant a new trial.

Nowlin, 21, was convicted in October by a federal jury after a three-day trial in Tampa, Florida. He argued that Discord messages between him and co-defendant Devin Rhoden, which allegedly show he was unaware of Rhoden’s fraudulent intentions, would have prevented his conviction had they been presented at trial. However, prosecutors countered that the evidence was not newly discovered, was cumulative and impeaching, and would not have altered the trial’s outcome.

"The proffered evidence fails to serve as a basis to vacate the jury's verdict and grant a new trial because the evidence is not newly discovered, it is both cumulative and impeaching, and its admission would not produce a different result at a subsequent trial," prosecutors wrote.

They added that Nowlin failed to establish he could not have discovered the Discord messages earlier with due diligence. The messages, stored in Nowlin’s own Discord account, were accessible to him prior to trial, prosecutors noted.

Nowlin claimed he could not access the account due to court restrictions on computer use, but prosecutors said the government obtained and provided records from a different account in discovery.

Prosecutors also dismissed the significance of the messages, stating that they addressed only one misrepresentation about "staking"—a process where NFT holders agree not to sell for a set period to increase value. Victims testified that staking was one of many false promises made to encourage investment in the "Undead Tombstone" NFTs.

"The argument presented here has already been considered at trial and, apparently, rejected by the jury. Allowing the proffered evidence to be presented at a subsequent trial would only serve to be cumulative and/or impeachment evidence," the filing stated.

According to prosecutors, Nowlin and Rhoden minted 632 "Undead Tombstone" NFTs before abandoning the project, deleting social media accounts, and cutting communication with investors in April 2022. They allegedly defrauded victims of nearly $400,000 in cryptocurrency.

Rhoden, 25, who handled marketing for the project, pled guilty and testified against Nowlin. He admitted the project had no definitive plans for staking, despite promoting it as a feature. Nowlin’s role reportedly included setting up staking platforms. Rhoden described Nowlin as a childhood friend but cooperated with the government immediately, helping secure Nowlin’s indictment.

Rhoden’s sentencing memorandum requested probation of one to five years due to his substantial assistance in the case, noting a "relatively low loss amount" of just over $130,800. He was sentenced to five years’ probation on Nov. 20.

Nowlin, who maintains he intended to keep the project going and was unaware of Rhoden’s fraudulent promises, is scheduled to be sentenced in January.

The government is represented by Carlton C. Gammons of the U.S. Attorney's Office for the Middle District of Florida. Nowlin is represented by J. Jervis Wise of Bjorn E. Brunvand PA.

The case is U.S. v. Rhoden et al., case number 8:24-cr-00051, in the U.S. District Court for the Middle District of Florida.