Appeal from the United States District Court for the Northern District of California. William H. Alsup, District Judge, Presiding. D.C. No. CR-97-00218-WHA-02.
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Argued and Submitted April 13, 2009 -- San Francisco, California
Before: Stephen Reinhardt, John T. Noonan and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown; Concurrence by Judge Reinhardt
This appeal stems from a massive fraud scheme that resulted in protracted civil and criminal proceedings spanning more than ten years. John A. Hickey ("Hickey") and his business partner, Mamie Tang ("Tang"), induced over 700 individuals to invest approximately $20 million in two real estate development funds. Their plan was to purchase land in Northern California, prepare the land for residential development, and then resell the properties to developers at a profit. As it turned out, however, the investors were duped by false representations regarding land title, guarantees, and securitization of the funds. Forensic accounting also showed that Hickey and Tang appropriated money from the funds for personal use.
As the investment scam progressed, it devolved into a Ponzi scheme. Hickey used the money from later investors to pay earlier investors the "interest" they were owed. When the money ran out and the fraud was exposed, the investors had lost approximately $18.5 million.
When the investment scheme fell apart in mid-1994, the Securities and Exchange Commission ("SEC") filed a civil enforcement action against Hickey, resulting in a consent decree that included a $1.1 million disgorgement payment. The investors also obtained an as-yet-unpaid $10 million civil judgment. Hickey was indicted in July 1997.
Hickey challenges his conviction for mail fraud and securities fraud on multiple grounds, including jurisdiction, statute of limitations, and claimed evidentiary errors. He also appeals his 97-month sentence. We affirm his conviction and sentence.
We consider first whether the district court lost jurisdiction to proceed because of Hickey's two interlocutory appeals to this court related to double jeopardy. Hickey asserts that his conviction must be reversed because the district court was without jurisdiction to conduct pretrial proceedings and trial. This argument stems from the general proposition that "[o]rdinarily, if a defendant's interlocutory claim is considered immediately appealable . . ., the district court loses its power to proceed from the time the defendant files its notice of appeal until the appeal is resolved." See United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984). A careful review of the chronology of events and the proceedings leads us to reject Hickey's jurisdictional argument.
We turn to Hickey's first interlocutory appeal. Hickey filed a motion to dismiss on the ground that trying him criminally after the SEC civil enforcement action would amount to double jeopardy. Although the district judge originally assigned to the case, Judge Chesney, ruled in March 2002 that there was no double jeopardy problem with trying Hickey criminally, she declined to find that Hickey's double jeopardy claim was frivolous, which allowed Hickey to immediately appeal to this court. See Abney v. United States, 431 U.S. 651, 659 (1977); United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002). Judge Chesney took a practical view of the situation: "I will not make a finding that the motion is frivolous . . . . I do not want to spend an inordinate amount of time trying a case that the court of appeals thinks should never have been tried."
On April 30, 2004, we dismissed Hickey's appeal for lack of appellate jurisdiction because his double jeopardy claim was not colorable. United States v. Hickey, 367 F.3d 888, 892-93 (9th Cir. 2004). Following issuance of the mandate on August 11, 2004, Hickey's attorney, who claimed medical incapacity during this period, filed a motion to recall the mandate in order to file a petition for rehearing. The mandate was ...