U.S. v. Hickey

• Decision Date: 02 September 2009
• Docket Number: No. 06-10206.,No. 05-10004.,05-10004.,06-10206.
• Citation: 580 F.3d 922
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John A. HICKEY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John A. Hickey, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

580 F.3d 922

UNITED STATES of America, Plaintiff-Appellee, v. John A. HICKEY, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. John A. Hickey, Defendant-Appellant.

No. 05-10004.

No. 06-10206.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2009.

Filed September 2, 2009.

Ezekiel E. Cortez and Erin J. Lindquist, San Diego, CA, for the appellant.

Vijay Shanker, United States Department of Justice Criminal Division, Appellate Section, Washington, D.C., for the appellee.

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.

Before: STEPHEN REINHARDT, JOHN T. NOONAN and M. MARGARET McKEOWN, Circuit Judges.

Opinion by Judge MCKEOWN; Concurrence by Judge REINHARDT.

McKEOWN, Circuit Judge:

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.

ANALYSIS

I. JURISDICTION

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, 97 S.Ct. 2034, 52 L.Ed.2d 651 (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 recalled on October 18, 2004, but was reissued on May 27, 2005, when the petition for rehearing was denied.

Meanwhile, in February 2004, Judge Alsup took over the case and, in the fall of that year, Hickey obtained new counsel. On December 14, 2004, Judge Alsup found that Hickey's double jeopardy claim was frivolous and ruled that the district court retained jurisdiction to proceed despite the recall of the mandate. Hickey then filed his second interlocutory appeal, this time challenging the December 14, 2004 ruling. This second interlocutory appeal was consolidated with Hickey's post-conviction appeal and is now before us. Hickey argues that not only did the district court lack jurisdiction between the time the mandate was recalled and reissued—October 18, 2004-May 27, 2005 — but that it also lacked jurisdiction to try him because his second interlocutory appeal—challenging the December 14, 2004 jurisdictional ruling—was still pending during his trial. Although the district court heard some pretrial matters during the period between the mandate being recalled and then reissued, the case did not proceed to trial until well after the mandate had been reissued.

As we noted in Claiborne, the notion that a pending appeal strips the trial court of jurisdiction is a judicially-crafted rule designed "to avoid confusion or waste of time resulting from having the same issues before two courts at the same time." 727 F.2d at 850. This protective approach is heightened in the case of a double jeopardy appeal in which the defendant is asserting a constitutional "right not to be tried." See id. Nonetheless, "[t]his concern is not as vitally involved when only pre-trial hearings proceed in the district court rather than the trial itself." Id. at 851.

The period relating to Hickey's first interlocutory appeal involved only pretrial matters and thus closely mirrors the scenario in Claiborne, in which the trial judge issued pre-trial rulings while an interlocutory appeal was pending. Although Hickey challenges the court's jurisdiction to continue with pretrial matters, he offers no specifics and claims no prejudice. The reality is that the district court in Hickey's case made no pathbreaking rulings during this period. A review of the trial court docket sheet reveals that most of October 2004-May 2005 was taken up with scheduling and case management matters, counsel substitution and payment issues, and a plan for the identification of experts. Hickey contested none of these rulings when he proceeded to trial.

Like Claiborne, because Hickey's interlocutory appeal was ultimately a losing one, any claimed error in proceeding with limited pretrial matters was harmless and "no useful purpose would be served by requiring that court to redecide the pre-trial motions." Id. at 851. We decline to apply the divestiture rule in a slavish manner that ignores the reality of what happened in the trial court.

Although the error was harmless in this case, we want to impress upon district courts that acting before the mandate has issued or after the mandate has been recalled risks acting without jurisdiction and wasting judicial resources. See United States v. DeFries, 129 F.3d 1293, 1301-03 (D.C.Cir.1997) (invalidating a trial which "took several months, consuming thousands of hours of court and lawyer time" because the mandate had not issued before the trial began).

Hickey's effort to supplant the district court's jurisdiction through his second interlocutory appeal fares no better. The district court's December 14, 2004 ruling that it had jurisdiction to proceed with pretrial matters was not subject to interlocutory review and was not appealable until after Hickey's trial and conviction. See United States v. Saccoccia, 18 F.3d 795, 800-01 & n. 8 (9th Cir.1994) ("Courts have uniformly held that challenges to district court jurisdiction can be fully vindicated on post-judgment appeal and are thus not subject to interlocutory appeal."). Filing an appeal from an unappealable decision does not divest the district court of decision. Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir.1993). When the mandate reissued in Hickey's original interlocutory appeal on May 27, 2005, the district court once again had jurisdiction over the case and thus had authority to proceed with Hickey's trial.

II. SPEEDY TRIAL ACT

Hickey claims that his Speedy Trial Act rights were violated because the district court retroactively excluded time from the Speedy Trial Act "clock," resulting in his trial beginning after the 70-day limitation period. When Hickey was initially brought before a magistrate judge on July 17, 1997, the magistrate granted an "ends of justice" continuance under 18 U.S.C. § 3161(h)(7)(A), which excluded time from July 17, 1997, through August 12, 1997. Although the parties dispute whether there was a violation of the Speedy Trial Act, we do not need to figure out the timing details because Hickey acknowledges that there is no error if this stop clock period is credited.

The "ends of justice" exclusion of time under the Speedy Trial Act requires the court to "set[ ] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by granting such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A). Among other factors, the court must consider "[w]hether the case is...