Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Kenneth Bernard Moffett, Defendant-appellant, 758 F.2d 654 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 654 (6th Cir. 1985) 2/21/85

ORDER

EFFORE: LIVELY, Chief Judge; JONES, Circuit Judge; and NEWBLATT, District Judge* .

Moffett's counsel has filed a motion to withdraw as counsel for Moffett on appeal together with an Anders brief. Anders v. California, 386 U.S. 738 (1967). The government has filed a response to the motion, and Moffett has filed a pro se brief. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Moffett's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Moffett was convicted by a jury in the United States District Court for the Western District of Kentucky of armed bank robbery. He received a twenty year sentence. The bank robber wore a ski mask and could not be identified by the bank personnel, but two co-conspirators testified against Moffett at trial and identified him as the robber.

Moffett's first three issues relating to denial of a motion to suppress and denial of a motion to require disclosure of an informant's identity are without merit. The only issue that requires discussion is the claim that Moffett was denied a speedy trial. Moffett alleges that his original defense counsel joined in a motion for a continuance even though Moffett told him not to do so. Normally, any period of delay resulting from a continuance granted on defense counsel's motion is not includable in the time limits under the speedy trial statute if the continuance is 'in the interest of justice.' 18 U.S.C. § 3161(h) (8) (A). Here defense counsel joined in the continuance in order to investigate witnesses to be called on Moffett's behalf. Moreover, Moffett did not make his opposition to this continuance known to the trial court. Therefore, this issue is also without merit.

The motion to withdraw as counsel is granted. The judgment of the district court is affirmed under rule 9(d) (3), Rules of the Sixth Circuit, since the issues are not substantial and do not require oral argument.

 *

The Honorable Stewart A. Newblatt, Judge, United States District Court for the Eastern District of Michigan, sitting by designation