* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### SEP 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JONI PAUL GOTTFRIED,

Defendant-Appellant. No. 97-6077 (W. District of Oklahoma) (D.C. No. 96-CR-171)

ORDER AND JUDGMENT *

BeforeSEYMOUR , Chief Judge, PORFILIO, and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. Joni Paul Gottfried appeals his conviction and sent ence entered in the United States District Court for the Western Distri ct of Oklahoma for felonious-2-

possession of a firearm in violation of 18 U.S.C. § § 922(g)(1). Gottfried claims that his statutory and constitutional rights to a s peedy trial were violated. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. This court addresses Gottfried’s claims in turn, and finding each to be wholly frivolous, this court DISMISSES the appeal and GRANTS counsel’s motion to withdraw pursuant to the procedures outlined in Anders v. California , 386 U.S. 738 (1967). On August 8, 1996, a criminal complaint was filed a gainst Gottfried, alleging he was in possession of a .357 caliber rev olver and that he had previously been convicted of a felony in violation of 18 U.S.C . §§ 922(g)(1). At a preliminary hearing/detention hearing on August 13, 1996, the district court found probable cause supporting the complaint and detaine d Gottfried, finding he was a danger to the community. Gottfried subsequently fi led an Unopposed Application for Order for Psychiatric Examination which was granted. The district court ordered that the time required for psychiatric exam ination be deemed excludable under the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(A). After a competency hearing on October 22, 1996, the distric t court found Gottfried did not suffer from mental disease or defect and was capable of assisting in his own defense. On November 6, 1996, a grand jury returned a one-co unt indictment against Gottfried for felonious possession of a firearm. G ottfried pleaded guilty and was-3-

sentenced to 180 months imprisonment, three years s upervised release, and assessed a $100.00 fine. Counsel, pursuant to Anders v. California , filed Gottfried’s Appellate Brief and simultaneously move d to withdraw as counsel, advising this court that counsel believes the issue s advanced on appeal are frivolous. 386 U.S. 738 (1967). Gottfried argues that his statutory and constitutio nal rights to a speedy trial were violated. The Speedy Trial Act requires a cri minal defendant’s trial to begin within 70 days, not counting “excludable time” as d efined by 18 U.S.C. § 3162(h), after the filing of the indictment, or fro m the date the defendant first appears before a judicial officer, whichever is lat er. 18 U.S.C. § 3161(c)(1). In making the claim that his trial did not begin withi n 70 non-excludable days, Gottfried erroneously counts the days which elapsedbetween the date of his arrest and the date on which he pleaded guilty. His resul t is 72 non-excludable days, in violation of the 70-day rule under the Speedy Trial Act. This measure, however, is without merit. The pre-indictment period, which Gottfried attempts to include in his calculations, is not subject to the 70-day rule. 1 8 U.S.C. §§ 3161(b) & 3161(c). The start date for purposes of the Speedy Trial Actwas the filing of the indictment which did not occur until November 6, 19 96. Gottfried entered his guilty plea on December 9. 1996, 33 days later. Th is amount of time was clearly-4-

within the 70-day rule. Thus, on its face, the Spe edy Trial Act was not violated and this court finds Gottfried’s statutory claim fr ivolous. Gottfried also argues his Sixth Amendment right to a speedy trial was violated. “‘A Sixth Amendment speedy trial claim i s assessed by balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether the delay prej udiced the defendant.’” United States v. Dirden , 38 F.3d 1131, 1137 (10th Cir. 1994) (quoting United States v. Tranakos , 911 F.2d 1422, 1427 (10th Cir. 1990)). Because this court determines the period of delay, 123 days, was not “presumptive ly prejudicial,” we need not examine each of the four factors. See Dirden . 38 F.3d at 1137. This court has determined that eight-month and thirty-month delays were not “presumptively prejudicial.” See United States v. Kalady , 941 F.2d 1090, 1095-96 (10th Cir. 1991); United States v. Bagster , 915 F.2d 607, 611 (10th Cir. 1990). Gottfried has neither presented an argument nor any facts to show how he was prejudiced by any delay. Not only does this court find that G ottfried has failed to show he was prejudiced by the 123-day delay, but we note th at much of the delay was attributable to Gottfried’s own motion and competen cy examination.-5-

Because this court finds Gottfried’s statutory and constitutional claims frivolous, this court DISMISSES the appeal and GRANTS counsel’s Motion to Withdraw. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge