           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 3, 2007

                                     No. 06-30878                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

KEITH ROMAN HENDERSON; LIONEL JOSEPH HENDERSON

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 6:05-CR-60040


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Keith Roman Henderson challenges his conviction and sentence. Lionel
Joseph Henderson challenges his sentence. Keith Henderson’s conviction and
both defendants’ sentences are AFFIRMED.
                          I. FACTS AND PROCEEDINGS
       On July 13, 2005, Keith Henderson and Lionel Henderson were indicted
on one count of violating 21 U.S.C. § 846, conspiracy to distribute cocaine, and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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two counts of violating 21 U.S.C. § 841(a)(1), distribution of cocaine base. The
government subsequently filed an information of prior conviction against Lionel
Henderson, asserting that he was subject to an enhanced penalty under 21
U.S.C. § 841(b)(1) because of two prior state felony drug convictions. In a
superseding indictment, both defendants were charged with an additional count
of cocaine distribution in violation of 21 U.S.C. § 841(a)(1), and Lionel Henderson
was charged with possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1).
      Before trial, Keith Henderson filed a motion to require the government to
reveal any deals or promises of leniency or immunity or any other consideration
provided to its informant. The government asserted that there were no promises
of leniency or plea agreements between the informant and any office or agency
of the United States.
      At trial, the jury heard that James Legarde met the Hendersons in 2003
through a drug dealer known as “B.G.” B.G. bought crack cocaine from the
Hendersons in “Friendship Alley”, a dead-end street in Amelia, Louisiana known
for drug-trafficking and hostility towards the police. Legarde began buying
drugs from the Hendersons. The transactions were typically set up in advance
over the telephone. Legarde most often dealt with Keith Henderson, but,
throughout his relationship with the Hendersons, he would call Lionel
Henderson if he could not contact Keith Henderson. Legarde began cooperating
with law enforcement, entering into a confidential source agreement with the
Drug Enforcement Administration (“DEA”). While Legarde had an extensive
criminal history, he had no pending felony charges. There were pending state
misdemeanor charges of domestic abuse against Legarde. Terrebonne Parish
Sheriff’s Office narcotics agent Bert Hanlon contacted the Terrebonne Parish
District Attorney’s Office where the charges were pending and asked that they
be continued until the DEA investigation was complete. He later sent a letter


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requesting that Legarde’s cooperation be taken into consideration by the
Terrebonne Parish District Attorney’s Office, but he did not request that the
pending misdemeanor charges be dismissed. The charges were not dismissed.
      On March 2, 2005, at the DEA’s instruction, Legarde contacted Keith
Henderson, who told him to come to Friendship Alley. When Legarde arrived
with an undercover officer, Lionel Henderson approached the vehicle and told
Legarde that Keith Henderson was not available. Legarde purchased crack
cocaine from Lionel Henderson, although the transaction was not completed in
the presence of the undercover officer. The officer was told by another individual
to stay in the vehicle, because Lionel Henderson was apprehensive about his
presence. The crack cocaine purchased by Legarde in that transaction weighed
128.3 grams. The drug transaction was recorded using a digital recorder worn
by Legarde. Keith Henderson called Legarde after the transaction and told him
not to bring the second individual with him in the future.
      On March 17, 2005, under the supervision of the DEA, Legarde contacted
Keith Henderson to arrange another drug purchase. Keith Henderson told him
that “everything was good.” When Legarde arrived at Friendship Alley, wearing
a transmitter provided by the DEA, Keith Henderson approached his car.
Shortly thereafter, agents heard over the transmitter an unknown individual
state that a “strike force” vehicle was parked across the street and comment
about a helicopter being in the area. Legarde observed Keith Henderson look
into the sky at the helicopter, get into a car, and leave the area. Agents then
observed Keith Henderson driving through the area conducting what they
believed to be counter-surveillance. Several minutes later, Keith Henderson
returned to meet Legarde and sold what was later determined to be 124.9 grams
of crack cocaine.
      On July 13, 2005, under the direction of the DEA, Legarde called Keith
Henderson about purchasing more drugs. Keith Henderson told him that Lionel


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Henderson would conduct the transaction. Legarde traveled to Friendship Alley
and purchased what was later determined to be 46.6 grams of crack cocaine from
Lionel Henderson. The transaction was recorded using a video camera. Lionel
Henderson was arrested in Friendship Alley after the transaction. After being
advised of his Miranda rights and asked if he had anything dangerous on him,
he stated that he had sold everything. Keith Henderson was arrested at his
residence, which was in a different parish than Friendship Alley. After being
advised of his Miranda rights, he was interviewed and admitted that he was
only a small-time dealer.
      During direct examination, Hanlon testified that he developed Legarde as
an informant by building a drug distribution case against him. He then offered
Legarde the option of operating as an informant, and in return he agreed not to
refer his case for prosecution. Hanlon also testified that he had contacted the
district attorney’s office to have Legarde’s misdemeanor charges continued, and
that he had written a letter to the district attorney’s office regarding Legarde’s
assistance. He acknowledged this again on cross-examination. After the defense
objected to the government’s failure to disclose the letter Hanlon wrote to the
district attorney, the district court instructed the government to locate the letter
and an email message government’s counsel had received from the DEA case
agent. The email described the DEA case agent’s attempt to determine the
status of Legarde’s cases, not to influence them. The DEA case agent was
unaware of Hanlon’s actions until Hanlon testified at trial. After his testimony,
Hanlon remained under subpoena in case he was needed for additional
testimony. He was not recalled by the government or the defense.
      Legarde testified the same day as Hanlon.             During a break, the
government produced the letter Hanlon had written to the district attorney’s
office. It was disclosed to the defense. The applicable portion of the letter was
as follows: “I am requesting any assistance available for Mr. Lagarde [sic] and

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have been in contact with [DEA] Agent Larry Johnson who also extends his
request for assistance in Mr. Lagarde’s upcoming court date.”          The court
provided the defense with an opportunity to review the one-page letter before
continuing their cross-examination of Legarde and allowed them the opportunity
to recall Hanlon. The defense resumed cross-examination of Legarde after a
short break. They did not request a continuance. Legarde was questioned about
Hanlon’s actions regarding the misdemeanor charges against him. Legarde
testified that the charges were irrelevant to his cooperation because they were
misdemeanors, and that he did not ask Hanlon to make any calls on his behalf.
Legarde was also questioned about his convictions for manslaughter, simple
robbery, burglary, distribution of cocaine, and possession of heroine. Legarde
was recalled by the government the following day to testify about drug
transactions.
      An assistant district attorney from Terrebonne Parish District Attorney’s
Office testified about the misdemeanor domestic abuse charges against Legarde.
The trial date for the first charge was continued without date because the victim
did not appear in court. The second charge was originally declined because of
insufficiency of evidence, but the charge was re-instituted when the screening
attorney saw that there was another charge pending. The victim did not appear
for the trial of the second charge either, and that charge was continued until
August 2006, over three months after the Hendersons’ trial. The assistant
district attorney testified that the charges were not continued because of any law
enforcement agency’s request. He testified that the office had a policy against
dropping domestic abuse charges and would not have dropped them for assisting
the police.
      At the close of the government’s case, the Hendersons both moved for a
judgment of acquittal. Their motion was denied as to counts one through three,
the conspiracy charge and the drug distribution charges for March 2, 2005 and


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March 17, 2005. Their motion was reserved as to counts four through six, the
drug distribution charge for July 13, 2005 and the firearm charges against
Lionel Henderson. The jury convicted both defendants of counts one and two
and convicted Keith Henderson of count three.         The jury acquitted the
defendants of the remaining counts. Keith Henderson moved for a judgment of
acquittal as to count three, asserting that there was insufficient evidence to
sustain his conviction.
      Before sentencing, Keith Henderson filed no objections to the Pre-Sentence
Report (“PSR”) which calculated that he had participated in the distribution of
11.76 kilograms of cocaine base. His base offense level was thirty-eight. Of the
11.76 kilograms of cocaine base attributable to Keith Henderson, 11.34
kilograms were determined by taking into consideration Legarde’s assertion that
he had purchased two ounces of cocaine base from Keith Henderson on
approximately 200 occasions from April 2003 to February 2005, when Legarde
began assisting law enforcement. Lionel Henderson filed two objections to his
PSR and responded to the government’s information on prior convictions by
asserting that his two prior convictions were obtained in violation of the
Constitution of the United States and were not felony drug offenses for the
purposes of 21 U.S.C. § 841. At the sentencing hearing, Lionel Henderson’s
counsel conceded that the two prior drug convictions satisfied the definition
provided in 21 U.S.C. § 802 but objected to preserve the issue for appeal. The
district court found that the 21 U.S.C. § 841 (b)(1) enhancement was applicable
to Lionel Henderson and sentenced him to two concurrent mandatory-minimum
terms of life imprisonment. The court sustained his objections to his Sentencing
Guidelines calculation, although it had no effect on his sentence.        Keith
Henderson was sentenced to 292 months each on all three counts of conviction,
to be served concurrently. The court denied his motion for judgment of acquittal
as to count three.


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      Both defendants filed timely notices of appeal. Keith Henderson claims
that the district court erred in failing to grant a new trial after the government
failed to disclose Brady material. He also claims that the district court erred in
denying his judgment of acquittal as to count two, and that it erred in adopting
the PSR, which held him accountable for 11.76 kilograms of cocaine base. Lionel
Henderson claims that the district court erred in finding that his state felony
convictions for mere possession of cocaine qualified as felony drug offenses for
the purposes of the enhancement under 21 U.S.C. § 841(b)(1)(A). He argues that
the court subsequently erred in sentencing him to life imprisonment. He
concedes this argument is foreclosed by circuit precedent and raises it to
preserve it for further review.
                                  II. DISCUSSION
A.    Failure to grant a new trial for Brady error
      “We review a district court’s Brady determinations de novo.” United States
v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002). “We review Brady determinations
using a three part test under which a defendant must show that: (1) evidence
was suppressed; (2) the suppressed evidence was favorable to the defense; and
(3) the suppressed evidence was material to either guilt or punishment.” United
States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005) (internal quotations omitted).
      Keith Henderson argues that the government suppressed a document
detailing actions it took to assist Legarde regarding his pending charges. He
does not specifically identify which document was suppressed and appears to
refer to both an email between a DEA agent and an assistant U.S. Attorney and
a letter from a Terrebonne Parish narcotics agent to the parish district
attorney’s office.
      We first look to see if the evidence was suppressed. Without deciding
whether the email was discoverable, we note that the contents of the email were
disclosed to the defense over a month before trial in a letter from the government

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to defense counsel dated March 9, 2006. All the relevant information from the
email was disclosed in the letter. Hanlon’s letter to the district attorney’s office
was disclosed at trial during a break in Legarde’s cross-examination.
      Evidence turned over during trial is not considered suppressed for Brady
purposes. United States v. Williams, 132 F.3d 1055, 1060 (5th Cir. 1998).
Therefore, neither the email nor the letter were suppressed. “Under these
circumstances, the court looks to whether [the defendant] was prejudiced by the
tardy disclosure.” Id.; see also United States v. Neal, 27 F.3d 1035, 1050 (5th Cir.
1994), United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).
      Henderson makes no argument as to how he was prejudiced by the
disclosure of the information in the email through the government’s letter four
weeks before trial. This court has previously held that there is no Brady
violation where the government disclosed evidence four weeks before trial, giving
the defense time to investigate and put information to effective use at trial.
United States v. Walters, 351 F.3d 159, 169 (5th Cir. 2003). The email describes
a DEA agent’s research into the status of misdemeanor charges against an
informant, not any attempts to influence the office prosecuting the informant.
Keith Henderson suffered no prejudice from the disclosure of the contents of the
email in a separate letter four weeks before trial.
      The existence of Hanlon’s letter, which simply “request[ed] any assistance
available,” was disclosed in front of the jury during Hanlon’s testimony. During
his testimony, Hanlon described in great detail the actions he took regarding the
pending charges against Legarde. There were no discrepancies between his
testimony and the letter, which was less detailed than his testimony. The
defense had the opportunity to review the one-page letter and hear Hanlon’s
testimony before completing its cross-examination of Legarde, the only witness
to whom the letter was relevant. After the letter was disclosed, the defense
questioned Legarde about Hanlon’s actions regarding the misdemeanor charges.

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      This court has held that the disclosure of reports after cross-examination
has begun does not violate Brady where the defense is able to review the reports
in time to conduct an effective cross-examination. United States v. O’Keefe, 128
F.3d 885, 898–99 (5th Cir. 1997). While Keith Henderson did not have the same
amount of time to review the tardily disclosed reports as the defendant in
O’Keefe, there is no reason to suggest that Keith Henderson was prejudiced by
the late disclosure. He had the opportunity to review the one page letter before
resuming cross-examination of Legarde. The most damaging information about
Hanlon’s actions had been disclosed by Hanlon on the witness stand that
morning. The defense was able to challenge Legarde on cross-examination
about Hanlon’s actions regarding the pending misdemeanor charges. Finally,
both defense attorneys conducted effective cross-examinations of Legarde,
particularly with regard to his criminal history. In light of Legarde’s lengthy
criminal history and Hanlon’s testimony that he did not refer Legarde for
prosecution in return for his cooperation, Hanlon’s letter was of minimal use to
the defense. The defense had the opportunity to seek further cross-examination
or recall Hanlon to the stand, but they did not. Keith Henderson suffered no
prejudice from the government’s tardy disclosure of Hanlon’s letter.
B.    Sufficiency of the evidence
      “We review de novo the district court’s denial of a properly preserved
motion for judgment of acquittal.” United States v. Fuchs, 467 F.3d 889, 904 (5th
Cir. 2006). “In reviewing the sufficiency of the evidence, we view the evidence
and all inferences to be drawn from it in the light most favorable to the verdict
to determine if a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Burton, 126 F.3d 666, 669
(5th Cir. 1997). Count two of the superseding indictment charged that, on or
about March 3, 2005, Keith Henderson and Lionel Henderson aided and abetted
each other in the distribution of more than fifty grams of crack cocaine in

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violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), and 18 U.S.C. § 2. “To
prove the aiding and abetting of cocaine distribution, the government must show
that (1) the defendant associated in the criminal venture, (2) participated in the
venture, and (3) sought by action to make the venture succeed.” United States
v. Roberts, 913 F.2d 211, 217 (5th Cir. 1990).
      Keith Henderson claims that there was insufficient evidence to convict him
of count two of the indictment. He argues that since he was not present during
the actual delivery of drugs which occurred between Legarde and Lionel
Henderson, he could not be convicted of the offense.
      The jury heard that Legarde contacted Keith Henderson on March 2, 2005
and that Keith Henderson told him to come to Friendship Alley. The jury also
heard that, when Legarde and an undercover officer arrived to conduct the
transaction, Lionel Henderson explained to them that Keith Henderson was
unavailable. Lionel Henderson proceeded to sell 128.3 grams of cocaine base to
Legarde. The transaction was recorded using a digital recorder. Legarde
testified that he normally contacted Keith Henderson to arrange drug
transactions and that Lionel Henderson would provide drugs for him when Keith
Henderson was unable to provide them to him.            A few minutes after the
transaction, Keith Henderson called Legarde and told him not to bring his
companion with him to future transactions because Lionel Henderson was leery
of having a new individual present.
      Keith Henderson’s presence at Friendship Alley is not required for a
conviction. A rational trier of fact could have found that Keith Henderson was
associated with the drug transaction that occurred there on March 2, 2005 and
that he participated in the venture and sought to make the venture succeed. His
telephone conversation wherein he told Legarde to come to Friendship Alley
contributed directly to the success of the transaction that day. His conversation
after the transaction indicated his participation in the transaction and a general

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interest in the success of the drug transactions with Legarde. His admission
that he was a small-time dealer was further evidence that would allow a rational
trier of fact to conclude that Keith Henderson had aided and abetted the
distribution of cocaine on March 2, 2005.1
C.     Adoption of the PSR drug quantity
      We “review the district court’s interpretation and application of the
[Sentencing] Guidelines de novo and its factual determinations for clear error.”
United States v. Rodriguez-Mesa, 443 F.3d 397, 401 (5th Cir. 2006). Any amount
of cocaine base greater than 1.5 kilograms results in a base offense level of
thirty-eight. U.S.S.G. § 2D1.1(c)(1). Keith Henderson challenges the district
court’s adoption of the PSR’s determination that he was responsible for 11.76
kilograms of cocaine base. He claims the PSR relied on the “uncorroborated
testimony of the impeached and discredited CI, James Legarde.”
      Keith Henderson made no objections to the PSR. If a defendant does not
object to portions of the PSR and provides no evidence in rebuttal, “the district
court [is] certainly free to adopt the findings of the [PSR] without more specific
inquiry or explanation.” United States v. Mueller, 902 F.2d 336, 346 (5th Cir.
1990). Furthermore, a review of the record shows that the district court did not
err in adopting the factual determinations of the PSR. Keith Henderson argues
that his acquittal on count four, which was the drug distribution charge related
to July 13, 2005, indicates that the jury questioned Legarde’s credibility.
However, the jury convicted the Hendersons of drug distribution in counts two
and three, where the net weight of the cocaine base was determined to be 128.3
grams and 124.9 grams, respectively. The most plausible explanation for the
acquittal on count four is that the net weight of the cocaine base was 46.6 grams,


      1
        The indictment charges the Hendersons with cocaine distribution on or about March
3, 2005. The discrepancy between the date in the indictment and the date in the trial
testimony was the result of a typographical error in an investigative report.

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under the fifty grams required for conviction. There is no basis in the record to
question the district court’s and the PSR’s reliance on Legarde in determining
drug quantity, particularly since the PSR’s calculated amount of 11.76 kilograms
was 10.25 kilograms more than necessary to assess Keith Henderson with the
same base offense level.
D.    Sentence enhancement under 21 U.S.C. § 841(b)(1)(A)
      Lionel Henderson argues that the district court erred in sentencing him
to life imprisonment pursuant to the enhancement provisions of 21 U.S.C. §
841(b)(1)(A) because of his two prior state felony convictions for mere possession
of cocaine. He concedes that this issue is foreclosed by circuit precedent, United
States v. Sandle, 123 F.3d 809, 812 (5th Cir. 1997), and raises it to preserve it
for further review. In light of circuit precedent, the district court did not err in
sentencing Lionel Henderson to two concurrent terms of life imprisonment.
                               III. CONCLUSION
      Keith Henderson’s conviction is AFFIRMED. Keith Henderson’s and
Lionel Henderson’s sentences are AFFIRMED.




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