UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Green-
belt, 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Unpublished opinions are not binding precedent in this circuit.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 chil-
dren, 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 there-
after 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 dis-
covery. 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 vari-
ous 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 arraign-
ment 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. Correa-
Ventura, 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 origi-
nally 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, credi-
bility 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 law-
yer'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 assis-
tance 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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