*1 210a.3(b). shortage purpose § a number was to of order effectuate If announced, registrants 1255(f), to be selected § which asserts Estrada to be tem- petition at random and invited to for preservation family and facilitation of uni- vari- porary residence accordance with ty. Although we recognize removal of Id,. 210a.2(b), priority §§ classes. ous country from this Estrada dislocate 210a.3(h). home, family, her her and communi- ty, plain language of the statute and agree We with the BIA Estrada’s simply registrant regulations status as a mere for the RAW cannot be stretched as program grandfather does her into far as Estrada would like. The grandfa- 1255(i), § registration 1255(i) because for thering provisions §to relating en- program qualify RAW does not as a labor compass “petitions” only “applications application certification under 8 U.S.C. labor “ap- for certifications” which were 1182(a)(5)(A). § parameters Given the provable when filed.” 8 C.F.R. of particulars program, the RAW 245.10(a)(l)(i); § see also 8 U.S.C. specifically registration process, Estra- its 1255(i)(l). Estrada, § Unfortunately for only step da was not one removed from simply registering possibility for having requisite application filed the for petitioning to a become RAW cannot satis- certification, not yet labor she was even fy requirement having appli- filed an qualified to file such an Rath- application. cation for labor ap- certification was er, Estrada merely member of a provable when filed. not, pool might, aliens might who but be CONCLUSION

granted opportunity petition to be- come a should shortage RAW a labor Landin and Estrada are not grandfa- arise. 1255(i), § thered into nei- therefore Our conclusion is buttressed the im- eligible apply adjustment ther is plementing regulations, which specified permanent status to lawful resident of the employment that “[n]either authorization petitions United States. The for review any nor other benefit shall derive from are DENIED. filing card, a registration being placed in a

registry pool, or being petition invited to 210a.3(g). §

for RAW status.” 8 C.F.R. card, registration

Estrada’s own a Form I-

807, repeated Signifi- a similar disclaimer.

cantly, during years during the three existed, program

which the RAW a lack of number agricultural sufficient workers never Fed.Reg. found exist. See 59 Thus, registrant

at 24032. ever

emerged registration from the pool to petition

invited for RAW As status.

such, immigration “no ever benefits were America, UNITED STATES of granted through program.” the RAW Id. Plaintiff-Appellee, argues Estrada that we should construe broadly— regulations the statute deeming registry pro- for the RAW

gram functionally HICKEY, equivalent having John A. Defendant- application filed labor certification Appellant. —in *2 America, States of

United

Plaintiff-Appellee, Hickey, Defendant-Appellant. A.

John 05-10004,

Nos. 06-10206. Appeals, States Court

Ninth Circuit. April and Submitted

Argued 2, 2009. Sept.

Filed *4 Lindquist,

Ezekiel E. Erin J. Cortez and CA, Diego, for the appellant. San Shanker, Vijay Depart- Division, Appel- ment of Criminal Justice Section, D.C., Washington, ap- late pellee. REINHARDT,

Before: STEPHEN T. and M. JOHN NOONAN MARGARET McKEOWN, Judges. Circuit MCKEOWN; Opinion by Judge by Judge REINHARDT. Concurrence McKEOWN, Judge: interlocutory because ap- Circuit two peals jeop- to this court related double appeal This from a massive stems fraud ardy. Hickey asserts his conviction in protracted scheme resulted civil must reversed because the proceedings spanning and criminal more jurisdiction without to conduct (“Hick- years. ten John A. than pretrial proceedings argu- and trial. This ey”) partner, Tang and his business Mamie general ment proposition stems (“Tang”), over induced 700 individuals to “[o]rdinarily, if a defendant’s interloc- approximately invest million two $20 utory immediately ap- claim is considered development real estate Their plan funds. ..., pealable purchase the district court loses its land Northern Califor- nia, prepare power the land for residential devel- from the time the defen- resell opment, properties then appeal dant files its notice until developers out, profit. at a As it turned appeal is resolved.” See however, duped by the investors were false Claiborne, title, representations regarding guar- land 1984). chronology A careful review of the antees, and securitization of the funds. proceedings events leads us to *5 accounting Forensic also showed that reject Hickey’s jurisdictional argument. Hickey Tang appropriated money We turn to Hickey’s interlocutory first personal the from funds for use. appeal. Hickey filed a motion to dismiss As the scam progressed, investment it on him ground trying criminally the that devolved into a Ponzi Hickey scheme. after SEC the civil enforcement action money used the from later pay investors to would amount jeopardy. to double Al they earlier investors the “interest” though judge originally the district as money owed. When ran out and the signed case, Judge to the Chesney, ruled exposed, was fraud investors had lost in March 2002 that there was no double approximately million. $18.5 jeopardy problem trying with crim Hickey fell apart When investment scheme inally, Hickey’s she find declined to that mid-1994, and Exchange the Securities jeopardy frivolous, double claim was which (“SEC”) Commission filed a civil enforce- Hickey immediately allowed to appeal to against Hickey, ment action resulting States, this Abney court. See consent decree that included a million $1.1 651, 659, 2034, 431 U.S. 97 S.Ct. disgorgement payment. The investors (1977); L.Ed.2d 651 United States v. also obtained an as-yet-unpaid million $10 Price, (9th Cir.2002). 417, judgment. Hickey civil was indicted Judge Chesney practical took a view the July 1997. “I finding situation: make a not that Hickey challenges his conviction for mail .... motion I do frivolous not want fraud securities on multiple fraud an spend inordinate amount of time grounds, including jurisdiction, statute of trying a case that court appeals limitations, evidentiary and claimed errors. thinks should never been have tried.” appeals He also his 97-month sentence. 30, 2004, On April Hickey’s we dismissed We affirm his conviction and sentence. appeal jurisdiction for lack of appellate because his double claim jeopardy was not

Analysis Hickey, colorable. I. Jurisdiction (9th Cir.2004). Following August

We consider issuance of the first whether mandate jurisdiction court Hickey’s district lost attorney, who medi- claimed relating Hickey’s first in- period, period this filed a The during incapacity cal appeal only pretrial terlocutory involved in order to recall the mandate motion to closely mirrors the sce- matters thus rehearing. for The mandate petition file a Claiborne, in trial 18, 2004, judge nario in which the on October but was was recalled rulings pre-trial issued while interlocu- peti- May when reissued on tory appeal pending. Although was Hick- rehearing for denied. tion was ey challenges jurisdiction court’s Meanwhile, February Judge matters, pretrial continue with no offers and, case in the fall of Alsup took over the prejudice. no specifics claims The year, Hickey obtained new counsel. Hickey’s that the district reality is court 14, 2004, Judge Alsup found On December pathbreaking rulings during case made claim Hickey’s jeopardy was double A trial period. this review that the frivolous and ruled docket sheet reveals most October jurisdiction proceed despite retained 2004-May 2005 taken up with schedul- then Hickey filed recall of mandate. matters, ing management and case counsel interlocutory appeal, this time his second issues, payment substitution and ruling. challenging December plan experts. identification interlocutory appeal was con- This second none of these rulings contested Hickey’s post-conviction ap- with solidated proceeded when he to trial. Hickey argues is now before us. peal and Claiborne, Like because inter- only did the district court lack locutory appeal ultimately a losing the time the mandate jurisdiction between one, any error in proceeding claimed with was recalled and reissued-—October *6 pretrial matters limited was harmless and that it also lacked 2004-May 2005—but “no would purpose by useful be served try to him his second jurisdiction because requiring that court to the pre- redecide interlocutory appeal challenging the De- — trial motions.” Id. at 851. decline to We jurisdictional ruling 2004 cember —was apply the divestiture rule in a slavish man- pending Although his trial. during still ner the of what ignores reality hap- pretrial the court heard some mat- district pened in the trial court. period the the man- during ters between reissued, and then the being date recalled Although the was harmless in this error until proceed case did not to trial well case, impress upon we want to district after the mandate had been reissued. acting before the mandate hás courts after has been re- issued or the mandate Claiborne, we in As noted acting jurisdiction called risks without strips pending appeal notion that a judicial See United wasting resources. jurisdiction judicially- trial is a court DeFries, 129 States v. F.3d 1301-03 crafted rule “to avoid confusion designed (D.C.Cir.1997) a trial (invalidating which having resulting of time from waste months, consuming “took several thou- same issues before two courts at the same lawyer of hours court time” sands protective time.” 727 F.2d at 850. This the mandate had not issued before because approach heightened the case of a is began). the trial jeopardy double which the defen appeal asserting “right is not dant a constitutional Hickey’s supplant effort to Nonetheless, jurisdiction be through “[t]his to tried.” See id. district court’s his sec vitally only concern is not as involved when interlocutory appeal ond fares better. hearings in the district The 2004 rul pre-trial proceed district court’s December jurisdiction ing trial Id. at that it had to with court rather than the itself.” subject to pretrial matters was inter- 3161(h)(7)(A). factors, § Among locutory appealable and was not other review court Hickey’s “[w]hether until after trial and conviction. must consider the case is Saccoccia, complex, so unusual or so due the num- See to (9th Cir.1994) (“Courts defendants, prose- & n. ber of the nature of the cution, challenges questions uniformly held that to dis or the existence of novel have law, jurisdiction it fully trict can be vindi of fact or court unreasonable expect adequate pretrial post-judgment appeal preparation cated on and are subject interlocutory appeal.”). proceedings or for the trial within thus not itself an the time limits established Filing appeal unappealable de this section.” 3161(h)(7)(B)(ii). § U.S.C. In order cision does not divest the district court of time, excluding magistrate jurisdiction. stated that Estate Conners O’Con Cir.1993). Hickey’s reasonably “counsel nor, cannot be ex- When pected ready for trial within the Hickey’s original the mandate reissued Speedy Trial seventy day period” Act’s interlocutory May on appeal 77-page charged because the indictment again jurisdiction district once had Hickey with “massive fraudulent securities authority over the case thus had and with offerings misapplying and embez- proceed with trial. zling a substantial portion Speedy II. Trial Act $20,000,000 offerings.” raised those Speedy claims that his Tidal Act Despite findings, Hickey these ar rights were violated because gued magis to the district court that the retroactively excluded time from the trate judge properly justify had failed to “clock,” Trial Speedy resulting Act in his response continuance. In and out of trial beginning 70-day after limitation caution, the district the magis court asked period. Hickey was initially When judge clarify trate his findings, earlier magistrate before a brought judge July detail, which did in consistent with his 17, 1997, magistrate granted an “ends ruling. initial magistrate Because the justice” continuance under U.S.C. did, fact, judge statutory consider the *7 3161(h)(7)(A), § which excluded time from justice” in granting factors an “ends of July 17, through August 1997. exclusion, allowing magistrate the to clari “ Although parties dispute the whether fy findings those not in error: ‘[Si Speedy there was violation of the Trial justice’] findings multaneous of [‘ends [are] Act, we do not out figure need the unnecessary so long as the trial court later timing details because Hickey acknowl- shows delay that the was motivated ” edges that there no error if stop is this proper considerations.’ United States v. clock period is credited. Ramirez-Cortez, (9th F.3d 213 1154 Cir.2000) justice”

The “ends of exclusion of time (quoting United States v. (9th Cir.1984)) Speedy requires Bryant, under the Trial Act the 726 F.2d (alterations forth, “set[ the record of in original). ] the case, orally either its writing, or reasons Superseding III. Indictments the finding for justice that the ends of served of Statute Limitations1 by granting outweigh such continuance the best of public interests the the defen- Four indictments were filed a speedy dant trial.” against Hickey. Hickey 18 U.S.C. in- originally 1. In addition relating to the statute of limitations ar- conviction for securities fraud below, gument discussed year statutory also Fund I the claims occurred within five 16, 1997, period July that of rendering none the conduct that resulted in his before his 16, 1997, to the defendant is the central mail fraud and Notice July on on dieted underlying the statutes of limita- policy supersed- Two charges. fraud securities allegations If are charges tion. the issued, they both but ing indictments in the substantially same old and charges. fraud securities omitted indictments, assumption new is in- superseding that these Hickey claims placed has been on notice defendant of tolling the statute stopped dictments is, him. charges against That he charges. There- as to those limitations knows called to account that he be fore, fraud when the securities argues, prepare certain activities and should in the su- third charges were included a defense. 27, 2005, the April on perseding indictment be period should of limitations statute from the fact that an indictment is Apart date, measured from dismissed, until here interven- pending review original of the indictment. We date same ing indictments contained the factual law. See v. question novo this Orr de original Al- allegations as indictment. SA, America, NT & F.3d Bank though superseding the third indictment Cir.2002). (9th reincorporated allegations, fraud securities substantially it did not broaden or amend chal Hickey’s The answer to Italiano, original indictment. 894 F.2d tolling precedent is in our lenge found (“A superseding at 1282 indictment accepted It and indictments. is well brought the statute of has after limitations limita tolls the statute of an indictment long so as the expired original valid in the charges as all contained tions pending timely indictment is and was still Clawson, 104 States v. indictment. United superseding and the indictment does not (9th Cir.1996). Signifi origi- amend substantially broaden remains cantly, original indictment “[a]n charges.”). nal ” .... until it is United pending dismissed a superseding assertion that (9th Pacheco, 912 F.2d States charge against that omits a indictment Cir.1990), may multiple indictments essentially the same as dis- defendant is simultaneously against pending missing charge is inconsistent with case, defendant the same same Rule procedure. Under Federal criminal Holm, 48(a), “the govern- of Criminal Procedure Cir.1977) curiam). (per court, may, ment leave dismiss with ” that so added). It follows from these cases .... (emphasis an indictment *8 original as indictment remains long requirement government The ob- superseding indictment pending, a be tain leave of the to dismiss would a in the indict charge could, omits contained first government if the superfluous tolling of stat stop effect, ment does not charge by simply omitting dismiss as The charge. ute of limitations to that subsequent it from a indictment. Hickey is whether was on question theory premised central the view that the fairly charges. pending on As we no and charges longer notice initial were Pacheco, they at 305 once omit- explained “dropped” 912 F.2d had been Italiano, subsequent 894 from the indictment. States v. ted (quoting United (11th Cir.1990)): however, is, 1280, 1283 intermediate status There F.2d trial, Hickey is not at so forfeited Hickey did not raise this if it raised conviction invalid. LeMaux, argument. v. See United States argument during statute this trial. The of limita- 1993). 689 that is waived 994 tions is an affirmative defense trial.”); Cerilli, pending law between and our case dis- United States v. 558 F.2d (3d Cir.1977) (both remain charges pend- missed. Either the 700 n. an original dismissed, have ing they or been superseding may pend- indictment only way government for the achieve ing at government the same time and the court, via dismissal is leave of the which may which proceed choose to trial un- fairly did not occur here. on der). all Because of the indictments any notice that he could be tried for of the against a pending defendant remain unless superseding offenses contained the third (at formally until jeopardy dismissed least all of the indictment because indictments attaches), the statute of limitations re- trial, until pending remained factual for all charges prior mains tolled of the same, predicate remained indictments, subsequent even if indict- substantially charges were broadened. charges. ments omit those Our conclusion is consistent with IY. Trial Issues holding

case law from our sister circuits may government proceed elect Expert Testimony A. Exclusion indictment, any pending it is whether witness, Hickey’s expert Stephen recently the most returned superseding Roulac, at length testified about real estate See, prior indictment e.g., indictment. topic generally, finance—about the market in addition to the Eleventh opin Circuit’s conditions, the of Hickey’s reasonableness above, ion in Italiano cited United States funds, plan for the whether amount of (8th Cir.2004) Walker, v. 363 F.3d money Hickey raised was given reasonable (both superseding indictment and the his plan, plan stated and whether the original pending indictment remain However, likely to succeed. the district government may go to trial on the him testifying barred that he indictment); original v. United States Vav if believed that had not SEC inter litis, (1st Cir.1993) (an 9 F.3d vened, Hickey’s investments would have original pending indictment remains profitable been and the investors can be at would used trial even if a superseding money. not have Hickey urges indictment omits an of a lost charged element offense); Bowen, v. testimony 946 F.2d this would have established that (10th Cir.1991) (a 734, 736-37 superseding he did not an have intent to defraud inves indictment does not a preceding invalidate tors. indictment and the government may pro The district court did not any indictment); ceed to trial on pending excluding abuse its discretion in this limit Drasen, States 845 F.2d portion ed proffered expert of Roulac’s (7th Cir.1988) (“It n. 2 is well established testimony. Prime, See United that two may indictments be outstanding (9th Cir.2005). To at the same time for the same offense if begin, loss to investors is not element of

jeopardy has not attached to the first in fraud, either mail fraud or securities nor is government dictment. The may then se an intent to cause loss. See United States lect the indictment under which to *9 Utz, (9th 1148, Cir.1989) v. 1151 trial.”); Stricklin, at United States v. 591 (for fraud, mail is ... enough “[i]t that the (5th Cir.1979) (“Since 1112, F.2d 1116 n. 1 government charge jury and the find ei original the apparently indictment was ther that victim actually deprived the was dismissed, never technically there are two of money property or pending or that the defen against Stricklin, indictments appears it dant government may that the intended to the victim select defraud same.”) one of them with which to (emphasis to in original); United

931 (9th cio, (9th 371 1417 F.3d Benny, 786 F.2d v. States 2004). Cir.1986) (actual is an element of loss not fraud). Hickey is Although enti- securities proper The court a gave district mens claim that he did not the

tled to advance that, in rea and it was clear instruction victims, his argu- the to defraud intend convict, required the jury order to to intent— the relevant ment misunderstands Hickey requisite had the intent. find that honest, in good-faith belief “[w]hile jury Hickey in the instructions Nothing may misrepresentations ne- truth of the rea objectionable negates finds mens defraud, good-faith a belief gate intent to simply Those instructions instruction. repaid will be that the victim law and did not relieve the stated the no at all.” Ben- loss is defense sustain government of its burden. words, In other ny, 786 F.2d at argument that he related in- Hickey genuinely if believed his even “good to a faith” separate was entitled profitable would be vestment scheme instruction, in addition to the district investors, gains for his would result specific court’s instructions on in other fraud guilty would still be securities tent, by prece Ninth Circuit foreclosed to investors knowingly mail fraud if he lied law a dent: case is well settled that “[o]ur plan. with his the risks associated about right any criminal has no to defendant Therefore, testimony properly ex- jury good faith instruction when has cluded. adequately regard been instructed with to required guilty found intent to be Jury B. Instructions charged....” the crime United States v. Hickey argues that the district court (9th Cir.2004) Shipsey, 363 F.3d 967 province invaded the of the “impermissibly (internal quotation citation and marks that instructions allowed jury” giving omitted). if jury Hickey convict even rea, prove mens prosecution did Sentencing Y. problem compounded this grounds Hickey separate offers four give good a faith instruction. by refusing sentence, of which we overturn his none Hickey jury takes three individual Hickey argues the district court embrace. insists out of context and a a applied presumption instructions improperly law, ignoring our case they misstate sentence was reasonable. within-guidelines “ instructions, States, jury reviewing law See v. United 552 U.S. ‘[i]n Gall (2007). 596-97, inquiry is whether the instruc 169 L.Ed.2d 445 the relevant S.Ct. misleading may apply pre a appellate tions as a whole are inade While courts a sumption reviewing of reasonableness quate guide jury’s deliberation.’” Garcia-Rivera, sentence, within-guidelines Supreme States v. F.3d Cir.2003) (9th barred the district courts from (quoting United Court has presumption determin Frega, applying v. 806 n. 16 such F.3d added). (9th Cir.1999)) (emphasis ing a the first instance.2 Id. As sentence concedes, However, nothing in record supports trial counsel failed to did, fact, instructions, we the claim that object to these so review presumption. apply Re- such plain error. See United States however, court, Carty, adopt 2. This has declined (en banc). presumption Cir.2008) reasonableness for within- *10 guidelines appellate on review. See sentences Zink, Hickey argues that the district States United impermissibly (9th Cir.1997). court enhanced his sentence is position essen- by levels on fifteen based the amount tially noncompliance that his own with the prov the loss because the amount was not presentencing procedure means that jury. en a beyond reasonable doubt to the plain committed error. argument fundamentally This misunder Hickey complete failed to the financial in- stands current state constitutional requested by formation the Probation Of- sentencing. law on The Sixth relevant so the court had fice limited information not, question Hickey is Amendment as about his financial situation. See 18 claims, judge whether a found that facts 3664(e) (“The § U.S.C. burden demon- proven beyond not were a reasonable strating financial resources of defen- by jury process doubt in the calcu defendant.”). ... dant shall be on Rather, lating guidelines range. “the Nonetheless, the district aware ... question Sixth Amendment whether Hickey that previously paid had mil- $1.1 a judge law increase a defen forbids in the lion SEC enforcement action after dant’s sentence the judge unless finds insisting that pay he unable to and (and jury facts that the did not find that he was involved a billion real $1 concede).” did not offender Rita v. United project estate in San Hickey Francisco. States, 551 U.S. 127 S.Ct. not has that demonstrated the district (2007). 168 L.Ed.2d 203 Because the sen plain court committed error it when laid guidelines tencing advisory are Book after out the restitution schedule. er, the Sixth require Amendment does not AFFIRMED. proved beyond loss be jury to a a reasonable doubt. See United States REINHARDT, Circuit Judge, specially Booker, 543 U.S. 125 S.Ct. concurring: (2005). L.Ed.2d I reluctantly concur Judge Hickey argues that his sentence re- that, opinion. McKeown’s I recognize un significant sult in a overpayment to inves- precedent der the opinion, cited in the tors because the total amount of restitu- out-of-circuit, both “superseding” tion and Tang pay ordered given has been meaning in the context of investors, exceeds the amount of loss a criminal indictment disgorgement payment less the is the direct Hickey al- $17,454,581. ready Tang opposite meaning every was or- of its other made— pay $12,266,090, dered to Hickey is, was known context.1 This unfortunately, $17,454,000. pay However, ordered to not the first occasion which we have Tang Hickey to pay were ordered construed words this manner. If joint restitution, and several point may “slight” equated with “substantial” brief, Hickey ignores in his hence may and “another state” include the “same there will be no windfall to investors. state,” see v. Saavedra-Ve 08-10078, lazquez, No. The district Hickey court ordered 2009) (Rein Aug. $5,000 pay per restitution of quarter hardt, J., specially concurring), then we $500,000 while incarcerated per month upon surprised should not be superseding release. did object to the trial, restitution supersede schedule at so indictment does not anything we review at plain district court’s finding See I error. all. do not depriving favor words of all See, e.g., Dictionary persede” Random House of the replace as “to ... set aside ... [or] (1979) English Language (defining "su- supplant”). *11 simply in order to reach desired meaning America, of reason, UNITED STATES Here, ration I see no

legal result. Plaintiff-Appellee, otherwise, “su to treat the word al meaning replacing,” as as “not perseding” v. again we done before and as do we have KNIGHT, Douglas Defendant- James judicial creativity of An abundance here. Appellant. interpreting has devoted to tasks like been same”;2 “slight” “the to mean “another” No. 08-30372. “substantial”;3 “superseding” mean Appeals, United States of Court I superseding.”4 propose “not to mean Ninth Circuit. uses, redirecting creativity to better actually finding terms that mean such as 6, July 2009. Argued and Submitted appear to mean. We could start they what Sept. Filed 2009. or “first ad by using “second indictment” an indict ditional indictment” describe indictment, original

ment that follows “supersede” it. Were we

but does so, might public more trust

do we earn Any are now.

respect than we accorded amount, slight, how

additional matter substantial,

i.e. most welcome.5 would be Maine, 723-24, attempt); v. v. Riv 2. See Alden 527 U.S. inition cf. era-Ramos, 08-10174, (1999) (reaf- 144 L.Ed.2d 636 No. 578 F.3d 1111 S.Ct. Louisiana, (9th 2009) holding Aug. (adopting firming the v. Cir. the Second Hans (1890), "[t]he 10 S.Ct. 33 L.Ed. 842 Circuit’s conclusion that difference be U.S. requirement prohibition suits tween the federal law’s of a 'sub Eleventh Amendment by “against step’ require and the York one the United States Citizens stantial New law’s brought 'dangerous proximity’ applies suits ment of is ... ‘more of another State” state). ”) against (quoting by a state the same semantic than real’ citizen of Fernandez-Antonia, Sarbia, (2d Cir.2002)). 3. See United States Cir.2004) (9th (holding that "the terms cases). act,' Opinion (collecting ‘slight 4. See at 929-30 act’ or as used the Neva- ‘some caselaw, operational da same have the mean- course, ways, ing step,’ Other would be to describe 'substantial as used the tradi- as honestly representing attempt”); than common-law definition of our function more tional apply nothing Saavedra-Velazquez, simply we see United States v. law facts also 08-10078, more, acknowledging frankly Aug. that em- No. F.3d 1103 21, 2009) jurist. truly quality pathy def- essential (applying Sarbia to California's