* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:96-CR-39-6

- - - - - - - - - -

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-
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.