IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60298
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY R. WARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CR-39-6
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February 13, 1998
Before DUHE’, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Henry R. Ward appeals his conviction and sentence for
conspiracy and money laundering. Ward argues that he was
prejudiced by the district court’s denial of his motion to sever
his trial from that of Oliver Tripp because they had antagonistic
defenses. Ward has waived this issue because his motion to sever
was not based on an argument of antagonistic defenses. See Fed.
R. Crim. P. 12(b)(5) and 12(f) and United States v. Chavez-
*
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that this opinion should not be published and is not precedent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.
No. 97-60298
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Valencia, 116 F.3d 127, 29-33 (5th Cir.), cert. denied, 118
S. Ct. 325 (1997).
Ward argues that the jury verdict is against the weight of
the credible evidence. If Luther Martin’s testimony is believed,
there is sufficient evidence. The jury determines the
credibility of the witnesses. United States v. Payne, 99 F.3d
1273, 1278 (5th Cir. 1996). A guilty verdict may be supported
soley by the uncorroborated testimony of a coconspirator who has
pleaded guilty based on a promise of leniency in sentencing,
unless the testimony is incredible or insubstantial on its face.
Id. Ward does not allege that Martin’s testimony was incredible
or insubstantial on its face.
Ward argues that the district court erred in denying his
motion to dismiss based upon unnecessary preindictment delay.
“[F]or preindictment delay to violate the due process clause it
must not only cause the accused substantial, actual prejudice,
but the delay must also have been intentionally undertaken by the
government for the purpose of gaining some tactical advantage
over the accused in the contemplated prosecution or for some
other impermissible, bad faith purpose.” United States v.
Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996)(en banc), cert.
denied, 117 S. Ct. 736 (1997). Ward does not argue that the
Government intentionally delayed his indictment in bad faith.
Ward argues that the district court erred in overruling his
hearsay objection to the admission of Western Union’s records of
No. 97-60298
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the wire transfers. The district court did not abuse its
discretion in admitting these records. See United States v.
Loney, 959 F.2d 1332, 1340-41 (5th Cir. 1992).
Ward argues that the district court erred in refusing to bar
the admission of evidence produced by the Government on the day
of trial. The district court did not abuse its discretion
because Ward cannot demonstrate prejudice due to the late
disclosure of this evidence. United States v. Doucette, 979 F.2d
1042, 1044-45 (5th Cir. 1992).
Ward argues that the district court erred in admitting
evidence regarding a marijuana transaction in South Carolina.
Ward’s counsel knowingly and intentionally passed up the
opportunity to object that the district court’s limiting
instruction to the jury was inadequate to protect Ward from
prejudice due to the admission of this testimony or that the
testimony was properly admitted for the purpose stated by the
district court. This issue is waived. See Chavez-Valencia, 116
F.3d at 129.
Ward argues that the district court erred in refusing to
allow him to present testimony and evidence in support of his
motion for new trial. He contends that Greg Martin perjured
himself when he testified that he and Ira Martin transported a
vehicle to Jackson, Mississippi, for Ward to use on his return
trip as a drug courier. Ward’s conviction can be sustained on
the testimony of Luther Martin alone. Greg Martin’s testimony
No. 97-60298
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was only a minor part of the Government’s case. The alleged new
evidence does not come close to probably producing an acquittal.
The district court did not abuse its discretion in denying the
motion for new trial without a hearing. United States v. Time,
21 F.3d 635, 642-43 (5th Cir. 1994).
Ward argues that the district court erred in increasing his
offense level pursuant to U.S.S.G. § 3B1.1(c) for a leadership
role in the offense. Based on Luther’s testimony at trial that
Ward supervised other persons in Houston, the district court did
not clearly err in finding that Ward played a leadership role in
the offense warranting the two-level increase of § 3B1.1(c).
United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
AFFIRMED.