United States v. Legg ( 1997 )

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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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.
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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.
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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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