1 District Judge of the Western District of Louisiana, sitting by

designation.

1 UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-8156

_____________________________________

United States of America,

Plaintiff-Appellee,

VERSUS

Jerry Don Holley,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________________________________ (March 9, 1993)

Before WISDOM, and DUHÉ, Circuit Judges and HAIK 1

, District Judge.

DUHÉ, Circuit Judge:

Defendant, Jerry D on 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 stock2

interest and served on the senior loan committee of Peoples

S avings. 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 Pla za, 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 nam e. 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 and3

the identity of the signator was unknown.

In January 1988, Holley filed for bankruptcy. Peoples Savings

filed a n 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).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."

4 Holley made no objection.

Section 3161(h)(8) of the Speedy Trial Act referred to by the

district court applie s 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 findin gs 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 retri ed 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. U nited 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 can3 Holley cites U .S. v. Ortega-Mena

, 949 F.2d 156 (5th Cir. 1991).

5 excuse non-compliance with the Speedy Trial Act. 3 We disagree.

Though it originally cite d 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 t rial within seventy days impractical.

The periods o f delay enumerated in section 3161(h) are

excluded in computing the time limitations specified n

this section.

Sec tion 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 t he case within seventy days and the court6

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 d efendant's right to

have his trial completed by a particular tribunal. C rist 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 over7

defendant's objection is not prohibited under the fifth amendment

where the court determines that the declaration of a mistrial is a

"manifest necessity." U nited 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. U nited 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 mist rial. He contends that the

circumstances did not warran t 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 acquiescen ce, the judge exercised sound discretion in

determining that manifest necessity existed for the declaration of

a mistrial.8

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 fir st appeal in this case. S ee 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 d ismissed the adversary proceeding. Because the

perjurious statements related to the dismissed claim, Holley argues

that the perjurious s tatements 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. H olley

, 942 F.2d at 923

n. 8. Therefore, reconsideration of this issue is foreclosed by

this Court's decision in the previous appeal.

A s to Holley's remaining points of error, we have carefully

reviewed all pertinent par ts 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.9

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.