The Honorable Michael J. Melloy, Chief Judge, United States District Judge for 1

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2200

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Northern District of Iowa.

James Alexander Pryor, *

 * [UNPUBLISHED]

Appellant. *

___________

 Submitted: March 25, 1998

 Filed: March 30, 1998

___________

Before FAGG, BOWMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

After a jury found James Alexander Pryor guilty of distributing crack cocaine on

two occasions, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 21 U.S.C. §

860, the district court, applying the Guidelines for cocaine base, sentenced Pryor to

1

concurrent terms of 84 months imprisonment and six years supervised release. Pryor

now appeals from the district court&s denial of his post-trial motions for a new trial

and/or dismissal of the indictment, which were based on the government&s failure to
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disclose timely exculpatory evidence pertaining to the identification of Pryor as the

person who sold crack cocaine to an undercover Iowa detective. Pryor also argues the

court erred in applying the Guidelines for crack rather than powder cocaine in

determining his sentence, because the Guidelines definition of crack is vague and the

rule of lenity thus should apply. We affirm. 

Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the government is required

to disclose any evidence that is “#favorable to an accused&” and is “#material either to

guilt or to punishment.&” See United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir.

1996). In this circuit, however, the Brady rule “is limited only to the discovery, after

trial, of information which had been known to the prosecution but unknown to the

defense. . . . Where the prosecution delays disclosure of evidence, but the evidence is

nonetheless disclosed during trial, Brady is not violated.” Id. Here, all of the purported

Brady material was disclosed before or during trial (and there is no allegation to the

contrary), and we note that Pryor declined the court&s offer to grant him a mistrial based

on the government&s late disclosure of this material. Because Pryor&s motions were

premised upon the government&s alleged violation of Brady and no such violation

occurred, the district court did not abuse its discretion in denying Pryor&s post-trial

motions. See United States v. Rabins, 63 F.3d 721, 726 (8th Cir. 1995) (standard of

review for motion for new trial based on newly discovered Brady material), cert.

denied, 516 U.S. 1153 (1996); United States v. Manthei, 979 F.2d 124, 126-27 (8th

Cir. 1992) (standard of review for motion to dismiss indictment based on prosecutorial

misconduct).

Pryor&s challenge to the use of the Guidelines for cocaine base in determining his

sentence is foreclosed by our prior decisions. See, e.g., United States v. Jackson, 64

F.3d 1213, 1219-20 (8th Cir. 1995) (rejecting vagueness challenge and challenge based

on rule of lenity), cert. denied, 516 U.S. 1137 (1996). 

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.