                                                       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.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                      USDC No. 4:03-CR-5-2
                      --------------------

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this opinion should not be published and is not precedent except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
                                  -3-

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
                                  -4-

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.
