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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 4 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

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 misl eading 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 f ive hundred dollars derived from payments by the Department of Veterans Affairs in violation of 38 U.S.C. §- 2 -

6101 (Count 2). Defendant, who was represented by counsel, was tried before a jury in the District Court for the Western Districtof Oklahoma. The jury found him guilty of Counts 1 and 4 and acquitted him of C ounts 2 and 3. He was sentenced to 21 months on each count to run concurr ently, the lowest sentence in the Guidelines Range for the offenses of which he w as convicted. Defendant now challenges his conviction on the foll owing four grounds: (1) the trial court abused its discretion in denying th e 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 in dictment; (3) the Veterans Affairs field officer who testified at trial committed perjury; and (4) the prosecutor engaged in misconduct, by knowingly pres enting false and misleading grand jury testimony and by appearing on behalf of the government at the sentencing after his official retirement. Defendan t also moves for appointment of new counsel. We find that defendant’s appeal is me ritless and affirm the conviction and sentence.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 - 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 o r deny a continuance will be reversed only upon a showing of clear abuse of disc retion 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 th irty-day continuance in order to review discovery documents produced by the prosecut ion on the eve of trial. At the hearing on defendant’s motion, the defense atto rney said he could not determine whether he had already received copies of the documents in question and could not establish any prejudice from the alle ged late disclosure. The trial court denied the motion, but did permit a twenty-ho ur continuance for defense counsel to review the documents. Defendant has notshown 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 do cuments. The trial court did not abuse its discretion in denying the requested conti nuance. Defendant’s jurisdictional argument is meritless. The indictment charges that defendant made false statements to a federal a gency, the Department of- 4 -

Veterans Affairs, in violation of a federal statute , 18 U.S.C. § 1001. Prosecution for this offense properly falls under federal courtjurisdiction. Defendant presents no evidence supporting his next claim, that a prosecution witness committed perjury. Weighing th e credibility of witnesses is the province of the jury, and this court will not s econd-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 proceeding s 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. Cha llenges 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 instit ution of prosecution or indictment, other than lack of jurisdiction or fail ure 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 th at the prosecutor knowingly presented false testimony before the grand jury, fa iling to even specify what testimony constituted perjury. Finally, defendant alleges that the trial prosecuto r improperly appeared for the sentencing after the effective date of his reti rement. The Acting United States Attorney ratified this appearance nunc pro tunc by letter dated June 4, 1997.- 5 -

Defendant raises no challenge to the validity of th is ratification, and presents no argument that the prosecutor’s appearance caused hi m prejudice amounting to reversible error. Defendant’s conviction and sentence are affirmed, a nd his motion for appointment of new counsel is denied. The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge