United States v. Legg

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 4, 1997
• Docket: 97-6182
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-6182 v. (D.C. No. CR-96-184-C) (Western District of Oklahoma) JERRY ALLEN LEGG,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, MCKAY and LUCERO, Circuit Judges.

Defendant-appellant Jerry Allen Legg was charged in a four-count

indictment with willfully submitting false and misleading reports to the

Department of Veterans Affairs in violation of 18 U.S.C. § 1001 (Counts 1, 3 and

4), and willfully embezzling and misappropriating five hundred dollars derived

from payments by the Department of Veterans Affairs in violation of 38 U.S.C. §

* The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 6101 (Count 2). Defendant, who was represented by counsel, was tried before a

jury in the District Court for the Western District of Oklahoma. The jury found

him guilty of Counts 1 and 4 and acquitted him of Counts 2 and 3. He was

sentenced to 21 months on each count to run concurrently, the lowest sentence in

the Guidelines Range for the offenses of which he was convicted.

Defendant now challenges his conviction on the following four grounds: (1)

the trial court abused its discretion in denying the defendant a thirty-day

continuance prior to the start of jury selection; (2) the trial court lacked

jurisdiction over the defendant’s administration of guardianship estates created by

Oklahoma state law which were the subject of the indictment; (3) the Veterans

Affairs field officer who testified at trial committed perjury; and (4) the

prosecutor engaged in misconduct, by knowingly presenting false and misleading

grand jury testimony and by appearing on behalf of the government at the

sentencing after his official retirement. Defendant also moves for appointment of

new counsel. We find that defendant’s appeal is meritless and affirm the

conviction and sentence.

-2- Defendant’s trial attorney submitted an Anders 1 brief asserting, as the sole

ground for appeal, that the district court erred in denying the defense’s motion for

a continuance. A trial court’s decision to grant or deny a continuance will be

reversed only upon a showing of clear abuse of discretion resulting in manifest

injustice. United States v. Mitchell, 765 F.2d 130, 132 (10th Cir. 1985). Prior to

jury selection, the defense filed a motion for a thirty-day continuance in order to

review discovery documents produced by the prosecution on the eve of trial. At

the hearing on defendant’s motion, the defense attorney said he could not

determine whether he had already received copies of the documents in question

and could not establish any prejudice from the alleged late disclosure. The trial

court denied the motion, but did permit a twenty-hour continuance for defense

counsel to review the documents. Defendant has not shown that the shorter

continuance prejudiced him in any way, and defense counsel states in the Anders

brief that the time was sufficient to review the documents. The trial court did not

abuse its discretion in denying the requested continuance.

Defendant’s jurisdictional argument is meritless. The indictment charges

that defendant made false statements to a federal agency, the Department of

1 Under Anders v. California, 386 U.S. 738 (1967), defense counsel who believes an appeal to be frivolous may file a motion to withdraw as counsel but must submit an accompanying brief “referring to anything in the record that might arguably support the appeal.” Id. at 744.

-3- Veterans Affairs, in violation of a federal statute, 18 U.S.C. § 1001. Prosecution

for this offense properly falls under federal court jurisdiction.

Defendant presents no evidence supporting his next claim, that a

prosecution witness committed perjury. Weighing the credibility of witnesses is

the province of the jury, and this court will not second-guess a jury’s credibility

determinations. See United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir.

1993).

Defendant’s argument that the grand jury proceedings were tainted by false

testimony is also without merit. No objections to the grand jury proceedings were

raised at any time before or during the trial. Challenges to grand jury proceedings

raised for the first time on appeal are untimely. See Fed. R. Crim. P. 12(b)

(requiring any objection based on defects in institution of prosecution or

indictment, other than lack of jurisdiction or failure to state an offense, be raised

prior to trial); United States v. Vecchiarello, 536 F.2d 420, 423 (D.C. Cir. 1976).

Defendant provides no support for his allegation that the prosecutor knowingly

presented false testimony before the grand jury, failing to even specify what

testimony constituted perjury.

Finally, defendant alleges that the trial prosecutor improperly appeared for

the sentencing after the effective date of his retirement. The Acting United States

Attorney ratified this appearance nunc pro tunc by letter dated June 4, 1997.

-4- Defendant raises no challenge to the validity of this ratification, and presents no

argument that the prosecutor’s appearance caused him prejudice amounting to

reversible error.

Defendant’s conviction and sentence are affirmed, and his motion for

appointment of new counsel is denied.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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