United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 11, 2004
Charles R. Fulbruge III
Clerk
No. 03-60878
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMAINO MOFFITE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:03-CR-5-2
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Damaino Moffite appeals his jury-trial conviction of one
count of armed robbery and aiding and abetting. Moffite argues
that the district court erred when it denied his motion to
dismiss his indictment for a violation of the Speedy Trial Act
(See 18 U.S.C. §§ 3161-62); the prosecutor made improper comments
during closing argument; and there was insufficient evidence
presented to establish jurisdiction.
*
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this opinion should not be published and is not precedent except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.
No. 03-60878
-2-
The district court denied Moffite’s motion to dismiss his
indictment for violation of the Speedy Trial Act because it found
that Moffite’s voluntary participation in a joint motion for a
trial continuance barred him from challenging the timeliness of
his trial. The district court granted the parties’ joint motion
for a trial continuance under the “ends of justice” provision of
the Speedy Trial Act, which is one of the exemptions to the time
limit in the statute. See 18 U.S.C. § 3161(h)(8)(A). However,
because of an administrative oversight, the order granting the
motion was not entered into the record of the case until after
trial commenced. Moffite argues therefore that the order did not
comply with the requirements of the Speedy Trial Act. Unless the
time period during which the continuance was in effect is
excludable, Moffite’s trial was not timely under the Speedy Trial
Act.
In United States v. Willis, 958 F.2d 60, 64 (5th Cir. 1992),
we held that a defendant does not waive his rights under the
Speedy Trial Act “simply by asking for or agreeing to a
continuance.” Nevertheless, we cautioned that “the defendant
should not be allowed to argue one legal theory or
characterization of facts to obtain a continuance and then argue
that the district court’s ruling was erroneous to seek dismissal
under the Act.” Id. Where the defendant has sought a
continuance under an erroneous interpretation of the Act that the
district court adopts, we will “ask whether the district court
No. 03-60878
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could have granted [an 18 U.S.C.] § 3161(h)(8) continuance. If
so, we will treat the time as an excludable continuance.” Id.
Moffite seeks to take advantage of a technicality and an
apparent oversight on the part of the district court that caused
the order for continuance not to be filed into the record until
after the trial. Unlike the order at issue in Willis, which
erroneously relied upon the defendant’s purported waiver of his
rights under the Speedy Trial Act, the district court in this
case granted the order under the “ends of justice” provision of
the Speedy Trial Act based in part upon the representation by
Moffite’s counsel that he needed more time to prepare for trial.
See Willis, 958 F.2d at 62-63.
Therefore, because the district court gave its reasons for
granting a continuance under 18 U.S.C. § 3161(h)(8) and Moffite
has not shown that the district court erred, the period during
which the continuance was in effect is properly excluded, and the
district court did not err in rejecting Moffite’s claim based
upon the Speedy Trial Act. See United States v. Bieganowski, 313
F.3d 264, 283 (5th Cir. 2002), cert. denied, 538 U.S. 1014
(2003).
Moffite also argues that improper comments made by the
prosecutor during closing argument at trial warrant reversal of
his conviction. The prosecutor’s remarks were permissible even
though they may have served to bolster the Government’s case
because they responded to the defense’s attack upon the
No. 03-60878
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Government’s witness. See United States v. Washington, 44 F.3d
1271, 1278 (5th Cir. 1995). Moreover, the prosecutor’s remarks
did not involve an expression of the prosecutor’s personal
opinion. See United States v. Davis, 831 F.2d 63, 67 (5th Cir.
1987). Furthermore, Moffite has not shown that the prosecutor
manifestly intended to comment on Moffite’s choice not to testify
or that the jury necessarily would view his comments in that
light. See United States v. Johnston, 127 F.3d 380, 396 (5th
Cir. 1997). Finally, the district court’s jury instructions were
sufficient to cure any prejudice. See United States v. Ramirez-
Velasquez, 322 F.3d 868, 875 (5th Cir.), cert. denied, 124 S. Ct.
107 (2003).
Moffite also challenges the sufficiency of the evidence
establishing the jurisdictional requirement and essential element
of the statute of conviction, 18 U.S.C. § 2113(f), that the bank
was insured by the Federal Deposit Insurance Corporation (FDIC)
on the day of the robbery. A showing of the witness’s personal
knowledge about the status of the bank’s FDIC insurance was not
necessary because Moffite did not challenge the testimony offered
by the Government at trial. See United States v. Trice, 823 F.2d
80, 87 n.6 (5th Cir. 1987). Thus, the Government’s proof of
insured status provided an adequate basis for the jury to find
beyond a reasonable doubt that the bank was insured by the FDIC
on the day of the robbery. See id. at 86-87.
Accordingly, Moffite’s conviction is AFFIRMED.