UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4756

DAMON EMANUEL ELLIOTT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CR-97-53)

Submitted: June 30, 1998

Decided: August 5, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard I. Kovelant, Laurel, Maryland; Douglas Clark Hollmann,

Annapolis, Maryland, for Appellant. Lynne A. Battaglia, United

States Attorney, John V. Geise, Assistant United States Attorney,

Ranganath Manthripragada, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Damon Elliott was convicted of attempted aggravated sexual abuse

in violation of 18 U.S.C. § 2241 (1994), and sentenced to 189

months' imprisonment. On appeal, he alleges a violation of the

Speedy Trial Act and insufficiency of evidence to support the jury's

verdict. He further maintains that he was prejudiced because he was

not arraigned until the first day of his trial. Finding no reversible

error, we affirm.

The evidence at trial disclosed that Elliott was a casual friend of

the victim, Yolanda Clark, who was 16 at the time of the offense.

Clark lived with her aunt, Barbara Hughes, and Ms. Hughes' two children, Derrick, 11, and Christy, 23. On January 21, 1997, Elliott called

Clark, who was alone with Derrick, and indicated that he was going

to come to Hughes' residence. Clark replied, "whatever." Later that

evening, Derrick unexpectedly found Elliott in Clark's bedroom. At

his request, Clark prepared Elliott something to eat, and shortly thereafter Clark and Derrick followed Elliott upstairs into her bedroom. At

Elliott's direction, Derrick went downstairs.

Alone with Clark in her bedroom, Elliott began yelling at Clark for

"disrespecting" him and striking her with a closed fist. He then

pushed her onto the bed and began removing her clothes, despite her

pleas to stop. He then pulled down his pants and placed his penis in

her vagina. At this time the phone rang. Pushing Elliott off of her,

Clark answered the phone, and crying, told her cousin, Christy, who

was on the phone, to come home. Elliott grabbed the phone and

pulled the cord out of the wall. He then pushed Clark's head into the

wall and began choking her with a pillow over her face. Elliott then

exited through the bedroom window. Within minutes, Clark's cousin

Christy, the paramedics, and the police arrived. Clark was then taken

to the hospital. Several witnesses testified consistently with Clark's

testimony.

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Elliott was indicted on February 24, 1997, on one count of forcibly

causing another person to engage in a sexual act in violation of 18

U.S.C. § 2241 (1994) and was later arraigned. On March 31, 1997,

the grand jury returned a superseding indictment charging him with

two additional counts, attempting to commit the offense charged in

the first count, also in violation of 18 U.S.C.§ 2241, and knowingly

engaging in sexual conduct with another person by the use of force

in violation of 18 U.S.C. § 2241(a)(1) (1994). Trial was initially set

for May 20, 1997. On the government's motion, however, the court

continued the trial to July 22, 1997, to allow time for DNA tests of

fluid and hair samples taken from Elliott and Clark. By order dated

April 22, 1997, the court directed that the period of time between the

Government's motion and the new trial date be excluded for speedy

trial purposes. On July 17, 1997, the court again reset the trial to

August 26, 1997. On July 29, 1997, the Government moved for discovery. Trial commenced on August 26, 1997, at which time Elliott

was arraigned on the superseding indictment. The jury found Elliott

guilty on count two, attempting to forcibly cause another person to

engage in a sexual act.

Elliott first alleges that the court failed to try him within seventy

days of his indictment in violation of the Speedy Trial Act, 18 U.S.C.

§ 3161 (1994). This claim lacks merit, however, because the failure

to move for dismissal on this basis prior to trial or a plea of guilty

constitutes a waiver of that right under the Act. See 18 U.S.C.

§ 3162(a)(2) (1994). In any event, our computation of the number of

days that elapsed between indictment and trial, allowing for the various exclusions allowed under the Act, reveals that Elliott was brought

to trial within the requisite period of time. Accordingly, we find no

plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).

Elliott further claims that he was prejudiced because he was not

arraigned on the superseding indictment until the first day of his trial.

Although Fed. R. Crim. P. 10 provides rules regarding the arraignment of a defendant, it does not, nor does any other authority that we

can find, suggest that it has to take place at a certain time. In fact,

even where there is a failure to arraign a defendant on a superseding

indictment, there is no reversible error absent a showing that the

defendant was in some way prejudiced. See United States v. CorreaVentura, 6 F.3d 1070, 1073 (5th Cir. 1993). Given defense counsel's

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own admission that the superseding indictment did not change the

defense in any way and the fact that a jury could have found Elliott

guilty of attempted rape, a lesser included offense of the offense originally charged, see Fed. R. Crim. P. 31(c), we find that Elliott was not

prejudiced by the court's failure to arraign him on the superseding

indictment until immediately before the trial. Hence, we find no

reversible error.*

Lastly, Elliott asserts that the evidence was insufficient to support

the jury's guilty verdict. On direct appeal of a criminal conviction, a

verdict must be sustained if there is substantial evidence, viewed in

the light most favorable to the Government, to support it. See Glasser

v. United States, 315 U.S. 60, 80 (1942). As a threshold matter, credibility determinations are solely within the jury's province and are not

subject to appellate review. See United States v. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996), cert. denied, #6D 6D6D# U.S. ___, 65 U.S.L.W. 3586

(U.S. Feb. 24, 1997) (No. 96-6868). After reviewing the record and

the testimony of the victim and the other witnesses, we find ample

evidence to support the jury's verdict. Accordingly, we affirm

Elliott's conviction and sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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*Elliott also alleges ineffective assistance of counsel based on his lawyer's failure to move for dismissal under the Speedy Trial Act and his

acknowledgement of the lack of prejudice from the late arraignment.

Because the record does not conclusively demonstrate ineffective assistance of counsel, we leave this claim to factual development on collateral

review. See United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).

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