U.S. v. Holley ( 1993 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-8156
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United States of America,
Plaintiff-Appellee,
VERSUS
Jerry Don Holley,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(March 9, 1993)
Before WISDOM, and DUHÉ, Circuit Judges and HAIK1, District Judge.
DUHÉ, Circuit Judge:
Defendant, Jerry Don Holley, was convicted of two counts of
perjury. He contends on appeal that his rights under the Speedy
Trial Act, 18 U.S.C. § 3161, were violated, that his double
jeopardy rights were violated, and that numerous evidentiary errors
were made by the district court. Finding no reversible error, we
affirm.
Background
Appellant, Jerry Don Holley, was a director and chairman of
the board of Peoples Savings and Loan Association of Llano, Texas
("Peoples Savings"). Holley also owned a controlling stock
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District Judge of the Western District of Louisiana, sitting by
designation.
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interest and served on the senior loan committee of Peoples
Savings. He actively solicited business on behalf of Peoples
Savings.
In 1985, Holley entered into an arrangement with Eileen Marcus
to acquire real estate. Under the arrangement, Marcus was to find
property to purchase and resell at a profit. Peoples Savings was
to provide the financing. Marcus would not provide any financing
or furnish a financial statement.
That summer, Marcus contracted to buy a shopping center,
Southwest Parkway Plaza, for $2,400,000. The contract required
that the buyer deposit with Safeco Title Company an irrevocable
letter of credit for $25,000 as earnest money. Paulette Hubbard,
an escrow agent for Safeco, received the contract and the letter of
credit issued by Peoples Savings. Some time later Hubbard noticed
that the letter of credit lacked a signature.
Hubbard spoke to Holley about this on October 11, 1985. They
agreed to meet on the following Monday in order for Holley to sign
the letter of credit. On Monday, Holley apparently told his
secretary that a woman would visit the office with a letter to be
signed and that the secretary should sign it using her mother's
maiden name. He then left the office. When Hubbard arrived,
Holley's secretary signed the letter using a fictitious name.
When Marcus did not close on the purchase of Southwest Parkway
Plaza, the seller failed to collect on the letter of credit.
People Savings refused to honor the letter of credit because it was
not entered in Peoples Savings' register of letters of credit and
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the identity of the signator was unknown.
In January 1988, Holley filed for bankruptcy. Peoples Savings
filed an adversary complaint in Holley's bankruptcy case to
establish and determine dischargeability of Holley's alleged debts
to Peoples Savings. The adversary complaint alleged that as a
shareholder, director, and chairman of the board of Peoples
Savings, Holley engaged in fraud or defalcation while acting in a
fiduciary capacity. Holley was deposed in connection with this
adversary proceeding. Based on statements he made in the course of
that deposition about the letter of credit, Holley was indicted on
two counts of perjury.
In 1990, after a jury trial, Holley was convicted on both
counts. On appeal, this Court held that the failure to give a
unanimity instruction was reversible error and vacated and remanded
the case to district court. On retrial, Holley was again convicted
on both counts. Holley appeals this conviction.
Discussion
I. Speedy Trial Act.
Holley complains that the trial court should have granted his
motion to dismiss the indictment for violation of the Speedy Trial
Act. On October 24, 1991, after remand, Chief Judge Bunton ordered
the case transferred to Judge Belew for retrial on January 21,
1992. At that time, the district court declared that the time
between the issuance of our mandate and the rescheduled trial was
excluded from the time within which the defendant must be brought
to trial under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8).
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Holley made no objection.
Section 3161(h)(8) of the Speedy Trial Act referred to by the
district court applies to continuances and not to retrials
following appeal. The Government moved for clarification of the
court's scheduling order under Federal Rule of Criminal Procedure
36.2 Specifically, the government moved the court to set forth the
basis, on the record, for its findings that the ends of justice
served by the setting of a trial date more than seventy days from
the date of the court of appeals mandate outweighed the best
interest of the public and the defendant in a speedy trial as
required by § 3161(h)(8). Alternatively, the government asked the
court to clarify and correct its order to reflect reliance on 18
U.S.C. § 3161(e), relating to cases retried following an appeal.
The judge accordingly amended his original scheduling order citing
18 U.S.C. § 3161(e). We review the facts supporting a Speedy Trial
Act ruling using the clearly erroneous standard, and the legal
conclusions, de novo. United States v. Ortega-Mena, 949 F.2d 156,
158 (5th Cir. 1991).
Holley argues that the amended order, specifying reasons for
the delay, states facts amounting to nothing more than crowded
dockets. He argues that the law is settled and that neither a
congested calendar nor the pressure of judges' other business can
2
Rule 36 states "Clerical mistakes in judgments, orders or other
parts of the record and errors in the record arising from oversight
or omission may be corrected by the court at any time and after
such notice, if any, as the court orders."
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excuse non-compliance with the Speedy Trial Act.3 We disagree.
Though it originally cited to Section 3161(h)(8), the court
corrected its order to properly cite to § 3161(e). Section 3161(e)
states
. . . If the defendant is to be tried again following an
appeal or a collateral attack, the trial shall commence
within seventy days from the date the action occasioning
the retrial becomes final, except that the court retrying
the case may extend the period for retrial not to exceed
one hundred and eighty days from the date the action
occasioning the retrial becomes final if unavailability
of witnesses or other factors resulting from passage of
time shall make trial within seventy days impractical.
The periods of delay enumerated in section 3161(h) are
excluded in computing the time limitations specified n
this section.
Section 3161(e) gives the trial court greater flexibility in
setting cases for trial following appeal than is provided in the
initial indictment-to-trial cases. The cases relied upon by Holley
discuss violations of the Speedy Trial Act under § 3161(h)(8). We
believe that those cases do not apply to this situation. As stated
in the district court's amended order, between the date the case
was originally tried and the date the case was subsequently
remanded, the trial judge became involved in a lengthy seven week
trial. Additionally, the resident judge in Waco, where the case
was to be tried, recused himself. Finally, at the time Holley was
to be retried, the Western District of Texas was four judges short
of the ten judges authorized by Congress. As a consequence of
these conditions resulting from the passage of time, there was no
practical way to try the case within seventy days and the court
3
Holley cites U.S. v. Ortega-Mena, 949 F.2d 156 (5th Cir. 1991).
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extended the trial date. Holley was tried within 180 days from the
date this Court issued its mandate. We believe that Holley was not
prejudiced by the delay, and therefore his rights under the Speedy
Trial Act were not violated.
II. Double Jeopardy Claim.
Holley next contends that his double jeopardy rights under the
Fifth Amendment were violated by the declaration of a mistrial.
One day after the jury was sworn, a juror became ill and the judge
declared a mistrial. Holley refused to continue trial with only
eleven jurors, and did not object to the mistrial order on double
jeopardy grounds. The trial judge, after a discussion with the
juror's doctor, determined that the woman would not be able to
continue. Defense counsel asked the court to wait an hour before
discharging the jury to determine whether the juror's health would
improve. The court responded that the juror's illness would not
get better, and instructed defense counsel to confer with his
client regarding whether he wished to continue the trial. The
record does not reflect Holley's response, however, a new jury was
empaneled that afternoon and there were no objections by counsel.
The double jeopardy clause protects a defendant's right to
have his trial completed by a particular tribunal. Crist v. Bretz,
437 U.S. 28, 36 (1978). Nonetheless, the double jeopardy clause is
not an absolute bar to reprosecution once the jury has been
empaneled and sworn. Without the defendant's consent, however,
reprosecution is more difficult.
A retrial following a sua sponte declaration of mistrial over
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defendant's objection is not prohibited under the fifth amendment
where the court determines that the declaration of a mistrial is a
"manifest necessity." United States v. Dinitz, 424 U.S. 600, 606-
07 (1976). For example, manifest necessity for mistrial exists
where judge or juror cannot attend because of illness or death.
Cherry v. Director, State Bd of Corrections, 635 F.2d 414, 419 (5th
Cir. Jan. 1981), cert. denied, 454 U.S. 840 (1981).
This Court will uphold the trial court's finding of "manifest
necessity" if the court exercised "sound discretion" in making that
determination. United States v. Bauman, 887 F.2d 546, 549 (5th
Cir. 1989), cert. denied, Talamas v. United States, 493 U.S. 1077
(1990). As the trial court is most familiar facts surrounding the
mistrial, the judge's mistrial order is given the "highest degree
of respect." Id. at 549.
Holley primarily argues that no manifest necessity existed for
the declaration of the mistrial. He contends that the
circumstances did not warrant a mistrial. Obviously, the court
disagreed, and so do we. A mistrial was declared only when it
became clear that the sick juror would not be able to continue.
Holley declined to continue the trial with only eleven jurors and
made no objection to the court's sua sponte declaration of a
mistrial. The clear inference from defense counsel's actions was
that he acquiesced to proceeding with the new trial. Even without
Holley's acquiescence, the judge exercised sound discretion in
determining that manifest necessity existed for the declaration of
a mistrial.
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III. Materiality.
Holley also claims that the evidence was insufficient to
support the jury's verdict because the government failed to produce
sufficient evidence of the materiality of the alleged perjury, an
essential element of the offense charged. This issue was raised by
Holley in his first appeal in this case. See United States v.
Holley, 942 F.2d 916, 923 (5th Cir. 1991). Holley argues that the
Court should overturn its previous decision regarding materiality
because of additional evidence that was adduced in this second
trial. After Holley's first trial, but prior to this Court's
decision on appeal, the FDIC dismissed it's bankruptcy claims
against Holley. He contends that the FDIC admitted that Peoples
Savings did not have a valid claim in bankruptcy when it
voluntarily dismissed the adversary proceeding. Because the
perjurious statements related to the dismissed claim, Holley argues
that the perjurious statements could not be material to Holley's
bankruptcy proceeding, and thus the government failed to prove an
essential element of perjury. At the time we rendered our decision
on Holley's first appeal, however, the fact that Peoples Savings'
claims had been dismissed was considered. Holley, 942 F.2d at 923
n. 8. Therefore, reconsideration of this issue is foreclosed by
this Court's decision in the previous appeal.
As to Holley's remaining points of error, we have carefully
reviewed all pertinent parts of the record, and given due
consideration to the briefs and arguments of counsel, but we have
found, on the particular facts before us, no reversible error.
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For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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