United States v. Henderson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51311
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS EARL HENDERSON, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-01-CR-100-1
--------------------
Before JOLLY, WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas Earl Henderson, Jr., appeals from his jury trial
conviction for possession with intent to distribute five grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)
and 18 U.S.C. § 2. He argues that the district court improperly
denied his motion for a new trial and that his conviction was not
supported by sufficient evidence.
*
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that this opinion should not be published and is not precedent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. 02-51311
-2-
In support of his motion for a new trial, Henderson argued
that the prosecution had improperly interfered with Karen Hare, a
potential witness, and that he had discovered evidence that a
government witness had perjured herself after the close of trial.
However, the district court properly ruled that the expected
testimony of Hare would have been speculative at best and that
the witness interference was therefore harmless. See United
States v. Weddell, 800 F.2d 1404, 1410-1411 (5th Cir. 1986). As
for the claim of newly-discovered evidence, the district court
properly ruled that the evidence was not newly-discovered because
Henderson had been alerted to the possibility of perjury before
the introduction of the relevant testimony, and that it was only
cumulative and impeaching. See United States v. Sullivan, 112
F.3d 180, 183 (5th Cir. 1997).
Henderson also argues that the prosecution failed to
introduce evidence supporting a finding of an intent to
distribute. However, as a government witness testified that
Henderson had procured the crack cocaine underlying his
conviction expressly in order to sell it, “a reasonable trier of
fact could have found that the evidence established guilt beyond
a reasonable doubt." See United States v. Mendoza, 226 F.3d 340,
343 (5th Cir. 2000); United States v. McIntosh, 280 F.3d 479, 483
(5th Cir. 2002).
AFFIRMED.