*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 сannot 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 Americа, 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 twо 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 сonsidered 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, аnd 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 earliеr 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 havе 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
rеcall 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 obtainеd 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.
identificatiоn
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
lawyеr
of hours
court
time”
sands
protective
time.”
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 аnd 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, prеpare 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 Statеs 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 cоuld, 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 forfeitеd 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 Becаuse 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 lаw 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 reasоnable (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 (emрhasis 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 intеnt 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 thаt
“[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
seрarate
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
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-