IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 94-10922

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH GROSZ,

Defendant-Appellant.

_______________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

_______________________________________________________________

February 22, 1996

Before REAVLEY, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case, involving crimes of bank fraud, we primarily

consider Joseph Grosz's contention that the district court violated

the Speedy Trial Act, 18 U.S.C. § 3161-3174, by allowing 354 nonexcludable days to elapse between the final disposition of Grosz's

interlocutory appeal and the filing of his motion to dismiss. The

crucial question is whether the proceeding conducted four days

before trial, relating to Grosz's pending motion in limine,

constituted a hearing within the meaning of the Act. We hold that

the court did in fact conduct a hearing. Thus, the 354 days in

question are properly excludable from calculation under the Speedy

Trial Act. As to the other issues raised by Grosz, including that
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various instances of prosecutorial misconduct deprived him of a

fair trial and that his conspiracy conviction is barred by double

jeopardy, we find them meritless. Accordingly, we affirm Grosz's

convictions.

I

Grosz was a commercial lending officer for San Jacinto Savings

Association ("San Jacinto"), located in Houston, Texas. James P.

McClain was a Texas businessman involved in real estate. In late

1984 or early 1985, during a flight to Chicago on McClain's private

plane, Grosz and McClain devised a scheme jointly to purchase

control of a Chicago savings and loan.

In order to generate funds to purchase the savings and loan in

accordance with their plan, Grosz helped McClain to obtain a loan

from People's Heritage Federal Savings and Loan Association

("People's") through a series of related transactions

("Plano/Flower Mound II Transactions"). In pertinent part, Grosz,

acting in his capacity as a lending officer for San Jacinto,

arranged for San Jacinto to release a second lien it held on fortythree acres of undeveloped land in Plano, Texas, to subordinate a

lien it held to a People's lien, and to waive its rights under an

agreement that would have entitled San Jacinto to receive $1.5

million from McClain at the closing of one of the transactions.

San Jacinto did not receive any consideration in return for these

actions. Grosz, however, received from McClain $1 million of the

proceeds of People's loan. McClain also provided to Grosz $600,000
 

1See United States v. Sallee, 984 F.2d 643, 644 (5th Cir.

1993) (describing land flips).

 

2The second check was made payable to Sharon Mains, who was

then McClain's girlfriend.

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of his profits from two "land flip" transactions1 involving San

Jacinto ("Bedford and Flower Mound I Transactions"). 

Shortly after the Plano/Flower Mound II Transactions, McClain

decided that he no longer wanted to own or control a savings and

loan. McClain asked Grosz to return half of the money. The two

men ultimately agreed that Grosz would return $600,000 of the $1.6

million diverted to Grosz. Grosz actually paid McClain only

$360,000 of this amount through two checks, one for $210,000 dated

September 26, 1986, and the other for $150,000 dated December 9,

1987.2

II

Grosz was charged on December 11, 1991 in a twelve-count

indictment for the offenses of conspiracy to commit bank fraud,

bank fraud, unlawful receipt of gifts for procuring loans,

misapplication of loan funds, wire fraud, and aiding and abetting

the commission of these offenses. He was arraigned on January 16,

1992. Grosz's counsel filed seventeen pretrial motions on

January 27, including a motion to dismiss on double jeopardy

grounds and a motion in limine to exclude evidence of subsequent

financial conditions and events. The government responded to these

motions on February 3. On May 7, the district court held the first
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pretrial conference. The court ruled orally on seven of Grosz's

motions. The court also entered an order denying Grosz's double

jeopardy motion and one other motion. Finally, the court stated

that it was going to keep the remaining motions, including the

motion in limine, "under advisement" pending resolution of Grosz's

interlocutory appeal from the denial of his double jeopardy motion.

This court affirmed the district court's denial of Grosz's

double jeopardy motion in an unpublished opinion. United States v.

Grosz, 977 F.2d 577 (5th Cir. 1992), cert. denied, ___ U.S. ___,

113 S.Ct. 1284, 122 L.Ed.2d 676 (1993). The interlocutory appeal

formally concluded on March 4, 1993. The district court next took

action on November 15, 1993, more than eight months later, when it

denied one of seven pending motions without a hearing. Between

that day and March 2, 1994, the court ruled on five of the

remaining six motions without conducting a hearing on any of them.

Grosz filed a motion to dismiss the indictment for pre-indictment

delay on February 22, 1994. On March 3, the district court held

the second pretrial conference, at which it granted Grosz's pending

motion in limine after a brief exchange with an attorney for the

government. Although present in the court at that time, Grosz's

counsel was not addressed by the district court until after the

court had ruled on the motion in limine. Grosz filed a motion to

dismiss for a violation of the Speedy Trial Act on March 8. The

court denied this motion on March 11.
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Grosz chose not to testify at trial. Grosz's counsel

suggested that McClain, who was testifying under a plea agreement,

was fabricating his testimony to assist the government. In opening

and closing arguments, Grosz's counsel maintained that the $600,000

that Grosz received from McClain was a loan made "in connection

with investments that Mr. McClain wanted to do with Mr. Grosz."

When the "investments" failed to materialize, counsel argued, Grosz

returned a substantial portion of the money to McClain.

Grosz's counsel also argued that the $1 million payment was

for "consulting work" that Mr Grosz did "in connection with a real

estate transaction involving Mr. McClain." Grosz's counsel did not

introduce any evidence of a consulting agreement. An accountant

testified on behalf of Grosz that he entered the money on the books

of Mortgage & Equity Resources, a Chicago real estate brokerage

owned by Grosz and his wife, as a "commission." Grosz also denied

that San Jacinto received no benefit in return for the various

rights it waived in connection with the Plano/Flower Mound II

Transactions. He produced witnesses to testify to that effect.

Grosz was convicted of conspiring to commit bank fraud (Count

1); bank fraud (Count 10); and unlawful receipt of gifts for

procuring loans (Counts 11 and 12). Counts 10 through 12 involved

the Plano/Flower Mound II Transactions. Grosz was acquitted of the

other eight counts on which he was indicted, all relating to the

Bedford and Flower Mound I Transactions. The court sentenced him

to five years' imprisonment on the conspiracy count, to be followed
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by concurrent five-year terms of probation on the remaining three

counts of conviction. Grosz was also ordered to pay restitution in

the amount of $1,600,000 and special assessments. 

III

Grosz first contends that the district court should have

dismissed his indictment based on a violation of the Speedy Trial

Act because 354 non-excludable days elapsed between the final

disposition of his interlocutory appeal and the filing of his

motion to dismiss (March 5, 1993, to February 21, 1994).

Specifically, Grosz asserts that an exchange in open court, shortly

before trial, between the district judge and a government attorney

concerning Grosz's pending motion in limine did not constitute a

hearing triggering an exclusion of the 354 days under 18 U.S.C. §

3161(h)(1)(F). This court reviews the factual findings supporting

a Speedy Trial Act ruling using the clearly erroneous standard and

the legal conclusions de novo. United States v. Tannehill, 49 F.3d

1049, 1051 (5th Cir.) (citation omitted), cert. denied, ___ U.S.

___, 116 S.Ct. 167, 133 L.Ed.2d 109 (1995). 

A

"The Speedy Trial Act is designed to ensure a federal

defendant's Sixth Amendment right to a speedy trial, and to reduce

the danger to the public from prolonged periods of the defendant's

release on bail." United States v. Johnson, 29 F.3d 940, 942 (5th

Cir. 1994). It requires that a defendant be tried within seventy

days of indictment or of the day the defendant first appears before
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the judge or magistrate, whichever is later. 18 U.S.C. §

3161(c)(1) (1994). If more than seventy days pass between this

date and the trial, the "indictment shall be dismissed on motion of

the defendant." 18 U.S.C. § 3162(a)(2) (1994). 

Certain delays are excluded from this calculation under

section 3161(h). Section 3161(h)(1)(F) ("Subsection F") excludes

"delay resulting from any pretrial motion, from the filing of the

motion through the conclusion of the hearing on, or other prompt

disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F) (1994).

"Once a hearing has been held on a motion and all necessary

additional materials submitted to the court, or once a motion not

requiring a hearing is filed along with necessary supporting

materials, § 3161(h)(1)(J) limits the excluded period to thirty

days." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir. 1994)

(citing Henderson v. United States, 476 U.S. 321, 329, 106 S.Ct.

1871, 1876, 90 L.Ed.2d 299 (1986)), cert. denied sub nom.,

Rodriguez v. United States, ___ U.S. ___, 115 S.Ct. 1113, 130

L.Ed.2d 1077 (1995), and cert. denied sub nom., Garza v. United

States, ___ U.S. ___, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1995).

The Supreme Court has established that Subsection F excludes

"all time between the filing of a motion and the conclusion of the

hearing on that motion, whether or not a delay in holding that

hearing is `reasonably necessary.'" Henderson, 476 U.S. at 330,

106 S.Ct. at 1877. The Supreme Court observed that although

Congress recognized the potential for abuse of the exclusion
 

3The court in Bermea concluded that pending James motions do

toll the speedy trial clock when they are heard and ruled upon at

trial. 30 F.3d at 1568.

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provided by Subsection F, "Congress clearly envisioned that any

limitations should be imposed by circuit or district court rules

rather than by the statute itself." Id. at 327-28, 106 S.Ct. at

1875-76.

The crucial question under Subsection F is whether a hearing

was held on a motion. Clarifying prior Fifth Circuit precedent,

the court in Johnson held that the speedy trial clock is not tolled

simply because a pretrial motion is pending. "Instead, a court

must look more closely into the particular circumstances of that

motion, e.g., whether there was a hearing on the motion, or whether

the motion was taken under advisement, to determine whether certain

days are excludable." Johnson, 29 F.3d at 943 & n.3 (citation

omitted). The court focused specifically on the question whether

a hearing was held on each of the four motions at issue in Johnson.

Id. at 943-45. For example, it concluded that "because no hearing

of any sort preceded the court's ruling, we consider the

[defendant's motion in limine] to have been under advisement

beginning on . . . the date the motion was filed." Id. at 944.

The court noted that "[t]he result we reach in this case might well

be different had the trial court held a hearing immediately before

or during trial on the motion in limine or the James motion,

typically a motion postponed until trial." Id. at 944 n.8.3 
 

4The district court held the second pretrial conference four

days prior to the beginning of the trial.

 

5The following exchange occurred at the second pretrial

conference:

THE COURT: 91-390, United States versus Grosz. It

appears we have two motions currently pending. One of

them is the defendant's motion in limine to exclude

evidence of subsequent financial conditions, and then

defendant's motion to dismiss the indictment based on

preindictment delay.

All right. Does the government oppose the

defendant's motion in limine? 

MR. FRANK: Yes, sir.

THE COURT: On what basis?

MR. FRANK: We believe that the evidence of loss

occasioned by the transactions in which this defendant

participated in shows evidence of intent and also a

pattern of dealings with these institutions. And the

jury should be able to consider this evidence to fully

appreciate the extent of the defendant's conduct in this

particular series of transactions which resulted in

substantial losses for two different financial

institutions.

THE COURT: Would your agreement [sic] be the same if

the properties had sold at a profit?

MR. FRANK: I believe the jury should be entitled to

understand exactly what did happen to the properties as

to whether they were profitable or sold at a loss.

It's important to know how this defendant's

activities and arrangements for these loans and approving

these loans played into the overall financial structure

of the institutions and what ultimately happened to these

entities.

THE COURT: I'm going to grant the motion in limine.

The government shall not refer to any losses on the

properties in the presence of the jury without first

approaching the court and obtaining a ruling from the

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B 

This case presents the question whether, within the meaning of

the Speedy Trial Act, the proceeding at the second pretrial

conference4 constituted a hearing on Grosz's pretrial motion in

limine.5 If it constituted a hearing, there will have been no
court if you intend to offer such evidence.

All right. Defendant's motion to dismiss the

indictment.

Is this motion going to require a hearing?

MR. SAMUELS: Good morning, Your Honor, Elliott Samuels

on behalf of Mr. Grosz.

 

6In its order denying Grosz's motion to dismiss, the district

court ruled that the pendency of the motions held "under

advisement" from the first pretrial conference tolled the speedy

trial clock under Subsection F without reaching the "hearing"

question. This rationale was plainly incorrect. Nevertheless, we

may affirm the judgment of the district court on any basis

supported by the record. Soujourner T. v. Edwards, 974 F.2d 27, 30

(5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1414, 122

L.Ed.2d 785 (1993), and cert. denied sub. nom., Connick v.

Soujourner T., ___ U.S. ___, 113 S.Ct. 1414, 122 L.Ed.2d 785

(1993). 

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violation of the Speedy Trial Act because the clock would have been

tolled at least until the hearing. If it did not constitute a

hearing, the Speedy Trial Act will have been violated because the

clock would have started running again after completion of Grosz's

interlocutory appeal on March 4, 1993.6 See 18 U.S.C. §

3161(h)(1)(E) (1994).

The Fifth Circuit observed in a recent case that the Speedy

Trial Act itself does not define "hearing" and noted that it could

not find any authorities addressing the issue. Tannehill, 49 F.3d

at 1053. Emphasizing the importance of interpreting the term in

the context of the Speedy Trial Act, id. (citations omitted), the

court declared that because Congress was addressing preliminary

motions in Subsection F, it could not have meant to require the

presentation of testimony or other evidence for there to be a

"hearing." Id. It did not determine the "precise parameters" of
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a "hearing" because it concluded that the term "includes a

situation in which the district court hears argument of counsel and

considers it prior to making its ruling, as was done in this case."

Id.

Tannehill's approach to the problem of interpreting "hearing"

plainly indicates that Grosz's reliance on due process cases to

define "hearing" for purposes of Subsection F is misplaced. See,

e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532,

542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Instead, we must

look to the Speedy Trial Act itself. In holding that the Speedy

Trial Act excludes time after a hearing to await additional filings

from the parties, the Supreme Court emphasized that "[t]he

provisions of the Act are designed to exclude all time that is

consumed in placing the trial court in a position to dispose of a

motion." Henderson, 476 U.S. at 331, 106 S.Ct. at 1877 (citing

S.Rep. No. 96-212, pp. 9-10 (1979)). This purpose identified by

the Supreme Court suggests that a relatively broad definition of

"hearing" is appropriate.

A review of the transcript from the second pretrial conference

convinces us that the exchange between the district court and the

government constituted a "hearing" for purposes of the Speedy Trial

Act. As in Tannehill, we need not determine the precise parameters

for a "hearing" in this context because the term includes a

situation, as here, in which the district court hears the argument
 

7We acknowledge that we would not recognize the exchange as a

"hearing" if the record demonstrated an attempt on the part of the

district court or the government to manufacture a "hearing" to

avoid the operation of the Speedy Trial Act. See United States v.

Walker, 960 F.2d 409, 413 (5th Cir.), cert. denied, ___ U.S. ___,

113 S.Ct. 443, 121 L.Ed.2d 362 (1992). Such is not the case here.

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of, and questions, counsel for the party against whom the ruling on

the motion is made.

The district court's disposition of other pretrial motions

supports our conclusion that this was a "hearing" for purposes of

Subsection F. On the day before the second pretrial conference,

the district court ruled on four other motions (which similarly had

been pending since the first pretrial conference) based only on the

filings of the parties. That the district court chose not to rule

on the motion in limine at the same time indicates that the

district court needed additional information or clarification in

order to dispose of the motion, which it obtained through its

questioning of the government attorney the next day.7

Grosz, arguing for a different application of the statute,

points out that 18 U.S.C. § 3161(h)(1)(J) (Subsection J) applies to

motions "actually under advisement by the court." Grosz then

argues that the district court's statement at the first pretrial

conference that he was taking the motion "under advisement" when

describing the status of the motion in limine establishes that it

was a non-hearing motion for which only thirty days were excludable

pursuant to Subsection J. Henderson, 476 U.S. at 329, 106 S.Ct. at

1876. Grosz also contends that this motion was a non-hearing
 

8Nor do our cases suggest such a requirement. See, e.g.,

Tannehill; Johnson.

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motion because the parties never requested and the district court

never formally set a hearing on it. We are not persuaded by these

arguments.

The plain language of neither Subsection F nor Subsection J

requires a court to make any on-the-record finding as to the status

of a motion.8 The exclusion for a continuance provided by section

3161(h)(8), in contrast, requires a court to "set[] forth, in the

record of the case, either orally or in writing, its

reasons . . . ." 18 U.S.C. § 3161(h)(8). This difference in

statutory language in the same section leads us to the conclusion

that a court's description of the status of a motion cannot be

dispositive of the question whether a motion is "actually under

advisement" for purposes of Subsection J. Similarly, the language

of Subsection F does not impose a requirement that the court

formally set a motion for hearing. As indicated above, the crucial

question concerning the exclusions provided by Subsection F and

Subsection J is whether the court actually holds a hearing on a

motion. 

C

We thus conclude that the district court properly excluded the

time between the end of Grosz's interlocutory appeal and the

hearing on the motion in limine under Subsection F. The trial

having commenced within seventy non-excludable days of Grosz's
 

9After a review of the briefs of the parties and the record,

we hold that the following instances of alleged prosecutorial

misconduct are lacking in any merit and do not require discussion:

(1) the alleged false testimony of Jerry Nicholson and (2) the

alleged improper cross-examination of a defense handwriting expert.

 

10Grosz points to the following remarks by the government:

 

(1) "There is no evidence in this case of the plane ride that

he discussed with Mr. Grosz did not happen --"

(2) "The only testimony that's out there is he went on this

plane ride --"

(3) "With respect to why Joe Grosz received the $1 million

through Mortgage and Equity Resources, the only explanation

that has been offered in this case for why that money was paid

is --"

(4) "Ladies and gentlemen, the only explanation that has come

from that witness stand as to why this money was paid, the $1

million, is the testimony of James P. McClain . . . ."

(5) "McClain's statement stands alone . . . ."

(6) "Ladies and Gentlemen, there is simply no other explanation that I have heard other than Mr. McClain's as to why this

money has been paid --"

(7) "Well, McClain has given you the only explanation that has

ever been offered, and that was to further the stock purchase

agreement . . . ."

(8) "That's why Mr. Grosz has been hesitant to come forward

with information that, oh yeah, I brokered the deal."

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first appearance before the court, there was no violation of the

Speedy Trial Act in this case.

IV

Grosz next raises a number of claims concerning alleged

prosecutorial misconduct that supposedly deprived Grosz of a fair

trial. We address three of those claims below.9

A

Grosz asserts that the government persistently and

"impermissibly invited the jury to infer Mr. Grosz's guilt from his

constitutionally protected silence" in its closing argument.10 It
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is, of course, improper for a prosecutor to comment on a

defendant's exercise of his Fifth Amendment rights. Griffin v.

California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106

(1965). The government is not prohibited, however, from commenting

on the defense's failure to counter or explain the evidence as

opposed to the defendant's failure to testify. United States v.

Guzman, 781 F.2d 428, 434 (5th Cir.), cert. denied, 475 U.S. 1143,

106 S.Ct. 1798, 90 L.Ed.2d 343 (1986); United States v. Bright, 630

F.2d 804, 825 (5th Cir. 1980). 

This court applies a two-tiered test to Grosz's claim. The

court first must determine whether the remarks were

constitutionally impermissible. If the court finds them to be

impermissible, the court must consider whether they were harmless

beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967). The test for determining whether

the prosecutor's remarks were constitutionally impermissible is:

"(1) whether the prosecutor's manifest intent was to comment on the

defendant's silence or (2) whether the character of the remark was

such that the jury would naturally and necessarily construe it as

a comment on the defendant's silence." United States v. Collins,

972 F.2d 1385, 1406 (5th Cir. 1992) (internal quotation and

citation omitted), cert. denied, ___ U.S. ___, 113 S.Ct. 1812, 123

L.Ed.2d 444 (1993), and cert. denied sub nom., Ross v. United
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States, ___ U.S. ___, 113 S.Ct. 1812, 123 L.Ed.2d 444. The

prosecutor's intent is not manifest if there is some other, equally

plausible explanation for the remark. Id. As for the second

possibility, "`the question is not whether the jury possibly or

even probably would view the challenged remark in this manner, but

whether the jury necessarily would have done so.'" Id. (quoting

United States v. Carrodeguas, 747 F.2d 1390, 1395 (11th Cir. 1984),

cert. denied sub nom., Hernandez-Cartaya v. United States, 474 U.S.

816, 106 S.Ct. 60, 88 L.Ed.2d 49 (1985)). Both inquiries are

properly conducted by reviewing the challenged remarks in context.

United States v. Jones, 648 F.2d 215, 218 (5th Cir. 1981). 

In the context of the case, the first seven of eight remarks

challenged by Grosz clearly focused on the defense's failure to

counter the government's evidence. As such, they are not

constitutionally impermissible comments on Grosz's decision not to

testify. Guzman, 781 F.2d at 434. The remark that appears on its

face to be most damaging is the one in which the government uses

Grosz's name. The immediate context illuminates the meaning of

this remark: 

If Mr. Grosz is pretending or suggesting to you that

he could on the one hand release this lien on the Plano

property and then turn around and accept a million dollar

brokerage commission from the sale of that property from

McClain to Nicholson, I would suggest to you that you

read again Government's Exhibit Number 23, the conflict

of interest policy of San Jacinto Savings and Southmark

Corporation, which tells you point blank that you can't

do that.
 

11From its opening statement, the defense attempted

unsuccessfully to establish a "consulting agreement" theory for the

receipt of the $1 million from McClain. 

 

12The following exchange occurred near the conclusion of

McClain's testimony on direct:

Q. Mr. McClain, is there something unusual about this

check, other than it's made payable to your girlfriend?

A. Well, it's like about every other document that's in

here.

Q. What's unusual about this check?

A. If you notice the check is made out in handwriting.

The -- this represents final payment by which note for

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That's why Mr. Grosz has been hesitant to come

forward with information that, oh yeah, I brokered that

deal.

 We hold that this statement, when read in context, does not

manifest the government's intent to comment on Grosz's failure to

testify. Instead, it offers to the jury a reason why the defense

failed to show clearly that Grosz brokered the deal:11 such a

contention would have been contrary to the express conflict of

interest policies of San Jacinto and Southmark. Thus, we are

persuaded that the jury would not "naturally and necessarily" have

construed it as a comment on his failure to testify.

B

 Grosz next argues that the government intentionally elicited

false testimony from McClain. The testimony concerned the $150,000

check drawn on a bank account of Mortgage & Equity Resources,

Grosz's Chicago real estate brokerage firm, made out to Sharon

Mains. Through the witness' testimony, the government suggested

that the check had been altered, which was false.12 Grosz asserts
$600,000.00 is paid in full, was typed on -- with a

typewriter.

Q. You're referring to a note that appears directly

below the handwritten name of Sharon Mains on the check?

A. Yes, that's correct.

Q. What is suggested to you by the fact that part of

the document is completed in handwriting and part of it is

completed in typewriting?

A. I would assume, as most of these other documents,

that this was done at a later time.

Q. Do you know of your own personal knowledge as to

whether or not this typewritten note was on the document at

the time it was received by Sharon Mains?

A. No, because I was not in the city in which Sharon

received the check at the time.

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that the government knew that the check had not been altered after

McClain received it when it engaged in this line of questioning.

He contends that the bank had provided the government with a

microfiche copy of the check years before the trial in response to

a subpoena, which revealed that the check had cleared two days

after it was issued with the typewritten notation on it.

Grosz must show that the following to obtain reversal of his

conviction on the grounds that the government elicited false

testimony: (1) the testimony was false, (2) the prosecution knew

it was false, and (3) it was material. United States v. Scott, 48

F.3d 1389, 1394 (5th Cir.) (citation omitted), cert. denied, ___

U.S. ___, 116 S.Ct. 264, 133 L.Ed.2d 187 (1995). The false

testimony is material if there is "any reasonable likelihood" that

it could have "affected the judgment of the jury." Giglio v.

United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104

(1972). 
 

13The government argues in its brief that the relevant

subpoenas show that the check in question was outside the scope of

the government's request for documents. We do not address this

contention because the subpoenas are not part of the appellate

record.

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Grosz's claim fails because the record contains insufficient

evidence to prove that the government elicited this testimony

knowing it to be false. Grosz argues that the government had been

furnished a microfiche copy of the check from the bank. He relies

solely on the testimony of an FBI agent involved in subpoenaing

documents from the bank:

Q: All right. Would you -- by the way, when you

subpoenaed the Boulevard Bank records you got a

microfiche copy of the check, did you not?

A. Yes, they would have been microfiche.

(Emphasis added). Since the agent had already testified that he

had not reviewed the documents subpoenaed from the bank and had

never seen a copy of the check, this answer cannot be viewed as a

clear admission that the government had obtained a microfiche copy

of the check in question; more likely, the statement is only an

acknowledgement that the subpoenaed documents would have been

microfiched copies.13

Even if the record showed that the government knowingly

elicited this testimony, Grosz's claim would still fail because the

testimony was not material. This is not a case in which the false

testimony remained uncorrected throughout the trial. Instead,

Grosz conclusively refuted McClain's testimony by the introduction

of the microfiche copy of the check and by his examination of the
 

14McBirney was the former head of Sunbelt Savings. He

testified about his role in the Plano/Flower Mound II Transactions.

He was testifying pursuant to a plea bargain upon which he was

sentenced to fifteen years in prison.

 

15Grosz excerpts the following portion of his defense counsel's

cross-examination of McBirney:

Q. And as a result of that, since then you have been

doing everything you possibly can to get the sentence

reduced, have you not?

A. Since then I have been cooperating as did I before

the sentence was handed down with the government, yes.

Q. But you have taken legal steps in an effort to

obtain a reduction in your sentence, have you not?

A. Legal steps in what way?

As far as what --

Q. Well, have you or your lawyers on your behalf filed

motions with the court requesting that the sentence be

reduced after you were sentenced?

A. No, not yet.

Q. You have not filed a motion?

A. Rule 35?

Q. Yes.

A. No.

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FBI agent concerning this copy of the check. The jury therefore

could not have relied on this testimony to draw any adverse

inference against Grosz. This testimony and its refutation also

allowed Grosz to assert in his closing argument that he was the

victim of a "very overzealous prosecution." In the light of the

foregoing, we cannot say that there was "any reasonable likelihood"

that the jury's judgment was affected by this false testimony. 

C

Grosz also argues that the government knowingly allowed the

false testimony of a government witness to stand uncorrected.

According to Grosz, Edwin T. McBirney14 falsely testified that his

lawyers had not filed a Rule 35 motion to reduce his sentence.15
Q. When is the last time that you spoke with any of

your attorneys concerning whether or not they have filed

a rule 35 motion requesting a reduction of your sentence?

A. Yesterday.

Q. They're telling you that you have not filed such a

motion?

A. We have not filed a rule 35, no, sir.

Q. Let me ask this pointedly, Mr. McBirney.

If a hearing on your rule 35 motion wasn't set

Tuesday of this week?

A. I don't know if it was set Tuesday of this week, but

I'm saying to you that we have not filed a rule 35.

We filed extensions to -- we have continued to file

extensions, but we have not filed a rule 35.

Q. All right. Was a hearing set to be conducted on

that, whatever it is you filed, on Tuesday of this week?

A. No, sir.

Q. So tell me again what it is your understanding is

that your lawyers have filed trying to get a lower

sentence?

A. Nothing yet. 

 

16Grosz's assertion that a side deal existed with the

government in exchange for his testimony is based on unfounded

speculation and is thus similarly meritless.

-21-

Because of this denial, Grosz claims that the jury was left with

the impression that no remedial action was pending with respect to

McBirney's fifteen-year sentence, which "obviously went directly to

McBirney's motive, interest and bias as a government witness." 

A thorough review of all of the relevant testimony convinces

us that Grosz's claim is meritless.16 Immediately following the

excerpt cited by Grosz, the following exchange occurred: 

Q. And I'll ask you one more time: Did those lawyers

file the required motion within that 120-day period.

A. You asked me if they filed a rule 35 or filed a

motion to extend the deadline for the filing?

I'm not trying to argue. I'm trying to understand

what you're asking me for.
-22-

If you ask me if they extended the deadline, that's

correct.

Q. That's your understanding of it?

A. Yes.

Q. Now, have the attorneys -- your attorneys told you

when you might expect a hearing on the motion?

A. No.

Q. Concerning the motion to reduce your sentence, you

understood in the plea agreement the government reserved

the right to oppose that, did they not?

A. That's correct.

Q. So they are holding that over you, so to speak, are

they not?

A. We haven't really discussed it.

Q. You and your lawyers have not talked to the

prosecution as to whether or not the U.S. Attorney's

Office is going to oppose your request for a lower

sentence?

A. We haven't discussed what they're going to say about

any lower sentence. We have not discussed it with them.

* * *

Q. Now, you understand, do you not, under that plea

agreement, Mr. McBirney, that it is the prosecution over

here that is going to decide whether or not you have told

the truth. The defense has got nothing to do with it.

You understand that?

A. Whether it's the defense or prosecution, I still

have to tell the truth.

Q. I understand. But concerning your request for a

lower sentence, you realize that it's the [prosecution]

that's going to decide that?

A. To my understanding, that is correct.

The transcript shows that at best McBirney's denial was based

on a technicality of seeking a sentence reduction. He was

obviously confused about the specific legal steps taken by his

lawyers to secure a lower sentence. The testimony nevertheless

clearly indicates that some sort of effort at sentence reduction

was in process and that McBirney was beholden to the government at

the time he was testifying. Based on all of the relevant testimony

we must reject Grosz's contention that the jury was left with the
-23-

impression that no remedial action was pending over which the

government would have some influence. 

V

Grosz's final claim is that his conspiracy conviction is

barred by the Fifth Amendment's double jeopardy clause because it

was part of a larger conspiracy for which he had been acquitted

previously in Kansas. We have considered and denied Grosz's double

jeopardy claim on interlocutory appeal in an unpublished opinion.

United States v. Grosz, 977 F.2d 577 (5th Cir. 1992), cert. denied,

___ U.S. ___, 113 S.Ct. 1284, 122 L.Ed.2d 676 (1993). 

"The `law of the case' doctrine, a restriction self-imposed by

the courts on themselves in the interests of judicial efficiency,

generally operates to preclude a reexamination of issues decided on

appeal either by the district court on remand or by the appellate

court itself upon subsequent appeal." Conway v. Chemical Leaman

Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981) (citation

omitted). In the criminal context, the law of the case doctrine

prohibits this court from reconsidering an earlier decision denying

a double jeopardy claim raised during an interlocutory appeal.

United States v. Singleton, 49 F.3d 129, 134 (5th Cir.), cert.

denied, ___ U.S. ___, 116 S.Ct. 324, 133 L.Ed.2d 225 (1995). An

exception to this bar exists if the "evidence on a subsequent trial

was substantially different." Young v. Herring, 938 F.2d 543, 547

(5th Cir. 1991) (citation omitted), cert. denied, 503 U.S. 940, 112

S.Ct. 1485, 117 L.Ed.2d 627 (1992). That is not the case here. 
-24-

We thus conclude that the "law of the case" doctrine precludes

reconsideration of our previous denial of Grosz's double jeopardy

claim.

VI

For the foregoing reasons, we AFFIRM the judgment of the

district court.

A F F I R M E D.