                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 98-3589
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Eastern District of Missouri.
Daniel Raymond Koehler,                   *
                                          *               [PUBLISHED]
             Appellant.                   *

                                ________________

                                Submitted: September 12, 2001
                                    Filed: September 28, 2001
                                ________________

Before HANSEN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                         ________________

PER CURIAM.

      Daniel Raymond Koehler was convicted of manufacturing in excess of 100
grams of methamphetamine, 21 U.S.C. § 841(a)(1), and of conspiring to manufacture
and distribute over 100 grams of methamphetamine, 21 U.S.C. § 846. Koehler argues
on direct appeal that he is entitled to a new trial because the prosecution's use of
allegedly false testimony violated his constitutional right to due process.

        Koehler and his codefendant, Matthew Hine, were arrested following the raid of
a trailer previously owned by Koehler. Drug Enforcement Agency (DEA) officials
organized the raid based on information received from Duane O'Shia, a confidential
informant who had worked with DEA officials on other cases. Although O'Shia had
previously been involved in manufacturing methamphetamine with Koehler, O'Shia
was never charged with any drug-related offenses.

        The government's evidence at trial against Koehler consisted largely of O'Shia's
testimony and the testimony of Koehler's codefendant Hine, who pleaded guilty and
agreed to testify against Koehler in exchange for the government's recommendation for
a downward departure at his own sentencing. On the morning of the first day of trial,
the prosecutor informed Koehler's attorney that the government had paid O'Shia $2,000
to relocate himself and his family because O'Shia had been threatened. The district
court1 ruled that evidence of the threat and the $2,000 payment were inadmissable by
the government unless Koehler opened the door, and that Koehler had ample time to
investigate the $2,000 payment as O'Shia was not scheduled to testify until the next
day.

       On cross-examination, Koehler's attorney questioned O'Shia about the $2,000
payment. O'Shia testified that he received it in exchange for information he had
supplied in relation to the raid. On redirect examination, O'Shia testified that he
received the payment after the raid, that he had not discussed any payment prior to
providing the information that led to the raid, and that he had not asked for nor
expected the payment at the time he supplied the information. The prosecution then
questioned the DEA agent to whom O'Shia provided the information, who testified that
he had used O'Shia as a confidential informant in other cases and that, although
informants were sometimes paid for supplying information, he did not pay O'Shia for
his information. Koehler did not question the DEA agent on cross-examination about
the $2,000 payment. The jurors were instructed that there was evidence that O'Shia


      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
                                           2
was a paid informant and that whether his information or testimony may have been
influenced by such payments was for them to determine.

       Koehler argues that the prosecution elicited false testimony from the DEA agent
when the agent testified that O'Shia was not paid for the information that he had
supplied and that the government has since admitted that the $2,000 was in fact paid
to O’Shia for information rather than for relocation expenses. Koehler argues that use
of the DEA agent's testimony violated his constitutional right to due process under
Brady v. Maryland, 373 U.S. 83, 86-87 (1963), which holds that the prosecutor's
suppression of material evidence favorable to the defendant or its use of known
perjured testimony violates the defendant's right to due process. We hold that there has
been no Brady violation in this case. First, Koehler has not established that the
government used false testimony. The government has not conceded in its filings with
this court, as suggested by Koehler, that the $2,000 was paid for information rather
than for relocation. Second, O'Shia himself testified that he was a paid informant, and
the jury was so instructed. "'Where the prosecution delays disclosure of evidence, but
the evidence is nonetheless disclosed during the trial, Brady is not violated.'" United
States v. Einfeldt, 138 F.3d 373, 377 (8th Cir.) (quoting United States v. Gonzales, 90
F.3d 1363, 368 (8th Cir. 1996)), cert. denied, 525 U.S. 851 (1998).

     Because further discussion would serve no precedential value, we affirm
Koehler's conviction without further opinion. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




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