                          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                                         *    [UNPUBLISHED]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,1 applying the Guidelines for cocaine base, sentenced Pryor to
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



      1
      The Honorable Michael J. Melloy, Chief Judge, United States District Judge for
the Northern District of Iowa.
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.




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