United States v. Larry Donald Verse

Seventh Circuit

United States v. Larry Donald Verse

490 F.2d 280, 1973 U.S. App. LEXIS 6286

CourtCourt of Appeals for the Seventh Circuit

DecidedDecember 27, 1973

Docket73-1301

StatusPublished

Cited by10 cases

This text of 490 F.2d 280 (United States v. Larry Donald Verse) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Larry Donald Verse, 490 F.2d 280, 1973 U.S. App. LEXIS 6286 (7th Cir. 1973).

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SPRECHER, Circuit Judge.

Defendant Larry Donald Verse was indicted for assaulting an employee of a United States penal institution in violation of 18 U.S.C. §§ 111 and 1114. Having been found guilty by a jury, he was sentenced to two years’ imprisonment to run consecutive to a current sentence being served.

Defendant appealed on three grounds: (1) erroneous denial of defendant’s motion for a bill of particulars; (2) erroneous denial of parts of defendant’s motion for discovery and inspection; and (3) prejudicial conduct of the prosecutor in cross-examination and in final argument to the jury.

Defendant contended that the indictment did not apprise him “of the time, place or the acts complained of” and that it was error to deny his motion for particulars in that regard. Rule 7(f) Fed.R.Crim.P. provides that the court “may direct the filing of a bill of particulars”. The granting of a bill of particulars is in the discretion of the trial judge. United States v. Rimanich, 422 F.2d 817 (7th Cir. 1970).

The indictment charged in part that “on or about the 31st day of March, 1972, in the Southern District of Indiana, . . . [defendant] wilfully and knowingly did forcibly assault, resist, oppose and interfere with Donald P. Turpén, an employee of the United States penal institution at Terre Haute, Indiana, knowing him to be such employee, while the said Donald P. Turpén was engaged in the performance of his official duty.” The indictment alleged the date, the name of the victim and the fact that he was an employee on duty of the federal penitentiary at Terre Haute, where the defendant was then an inmate. The description of the acts complained of was also adequate. See Cunningham v. United States, 356 F.2d 454, 455-456 (5th Cir. 1966). With such specificity in the indictment, we cannot say that the district court abused its discretion in denying the motion for further particulars.

Defendant next contended that the district court erred in not granting all of the discovery sought by defendant. Actually, the court granted a sizeable portion of the discovery requested and framed his denial in large part upon the language of Rule 16(b) Fed.R.Crim.P. which expressly excludes certain categories of discovery from the defendant. The court also denied the request for the [282]*282names and addresses of potential government witnesses. “A defendant still has no absolute right to obtain the names of government witnesses in advance of trial, except in capital cases.” 8 Moore’s Federal Practice ¶ 16.03 [3], at 16-25 (2nd ed.). The trial court did not abuse its discretion and did not prejudicially err in any of its rulings. United States v. Pope, 409 F.2d 371, 374 (7th Cir. 1969).

Finally, defendant complained of the prosecutor’s conduct in cross-examination and final argument. In cross-examining some of defendant’s inmate witnesses, the prosecutor asked whether they had been coached by the defendant. This was followed up by the introduction of government Exhibit 2, which defendant identified as “written for me by another inmate, what they would call a jailhouse lawyer” (Tr. 56) and which contained a statement of defendant’s version of the incident leading to his indictment (Tr. 45-46). One of the defense inmate witnesses testified (Tr. 44):

“I found that in the legal room, and I brought it to the defendant, asked him about it, defendant. When I told him I would be a witness, I said that this doesn’t pertain to me, because I did not see the initial confrontation.”

Inasmuch as other inmate witnesses testified to the incident in almost the exact verbiage of government Exhibit 2, the prosecutor was justified in cross-examining them as to whether they had seen the paper or been coached by the defendant.

Upon final argument, the prosecutor urged the jury to believe the government witnesses. This did. not constitute a personal vouching for the credibility of the witnesses nor an indication of the prosecutor’s personal belief or opinion as to guilt of the defendant and was not improper.

The conviction is affirmed.

Affirmed.

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SPRECHER, Circuit Judge.

Defendant Larry Donald Verse was indicted for assaulting an employee of a United States penal institution in violation of 18 U.S.C. §§ 111 and 1114. Having been found guilty by a jury, he was sentenced to two years’ imprisonment to run consecutive to a current sentence being served.

Defendant appealed on three grounds: (1) erroneous denial of defendant’s motion for a bill of particulars; (2) erroneous denial of parts of defendant’s motion for discovery and inspection; and (3) prejudicial conduct of the prosecutor in cross-examination and in final argument to the jury.

Defendant contended that the indictment did not apprise him “of the time, place or the acts complained of” and that it was error to deny his motion for particulars in that regard. Rule 7(f) Fed.R.Crim.P. provides that the court “may direct the filing of a bill of particulars”. The granting of a bill of particulars is in the discretion of the trial judge. United States v. Rimanich, 422 F.2d 817 (7th Cir. 1970).

The indictment charged in part that “on or about the 31st day of March, 1972, in the Southern District of Indiana, . . . [defendant] wilfully and knowingly did forcibly assault, resist, oppose and interfere with Donald P. Turpén, an employee of the United States penal institution at Terre Haute, Indiana, knowing him to be such employee, while the said Donald P. Turpén was engaged in the performance of his official duty.” The indictment alleged the date, the name of the victim and the fact that he was an employee on duty of the federal penitentiary at Terre Haute, where the defendant was then an inmate. The description of the acts complained of was also adequate. See Cunningham v. United States, 356 F.2d 454, 455-456 (5th Cir. 1966). With such specificity in the indictment, we cannot say that the district court abused its discretion in denying the motion for further particulars.

Defendant next contended that the district court erred in not granting all of the discovery sought by defendant. Actually, the court granted a sizeable portion of the discovery requested and framed his denial in large part upon the language of Rule 16(b) Fed.R.Crim.P. which expressly excludes certain categories of discovery from the defendant. The court also denied the request for the [282]*282names and addresses of potential government witnesses. “A defendant still has no absolute right to obtain the names of government witnesses in advance of trial, except in capital cases.” 8 Moore’s Federal Practice ¶ 16.03 [3], at 16-25 (2nd ed.). The trial court did not abuse its discretion and did not prejudicially err in any of its rulings. United States v. Pope, 409 F.2d 371, 374 (7th Cir. 1969).

Finally, defendant complained of the prosecutor’s conduct in cross-examination and final argument. In cross-examining some of defendant’s inmate witnesses, the prosecutor asked whether they had been coached by the defendant. This was followed up by the introduction of government Exhibit 2, which defendant identified as “written for me by another inmate, what they would call a jailhouse lawyer” (Tr. 56) and which contained a statement of defendant’s version of the incident leading to his indictment (Tr. 45-46). One of the defense inmate witnesses testified (Tr. 44):

“I found that in the legal room, and I brought it to the defendant, asked him about it, defendant. When I told him I would be a witness, I said that this doesn’t pertain to me, because I did not see the initial confrontation.”

Inasmuch as other inmate witnesses testified to the incident in almost the exact verbiage of government Exhibit 2, the prosecutor was justified in cross-examining them as to whether they had seen the paper or been coached by the defendant.

Upon final argument, the prosecutor urged the jury to believe the government witnesses. This did. not constitute a personal vouching for the credibility of the witnesses nor an indication of the prosecutor’s personal belief or opinion as to guilt of the defendant and was not improper.

The conviction is affirmed.

Affirmed.

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490 F.2d 280, 1973 U.S. App. LEXIS 6286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-larry-donald-verse-ca7-1973.

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