Friday, September 4, 2009
The Ninth Circuit Court of Appeals issued a decision in U.S. v. Hickey, a case "from a massive fraud scheme that resulted in protracted civil and criminal proceedings spanning more than ten years." The court stated that the accused and his business partner "induced over 700 individuals to invest approximately $20 million in two real estate development funds." The "investors were duped by false representations regarding land title, guarantees, and securization of the funds." The court stated that "[a]s the investment scam progressed, it devolved into a Ponzi scheme." Several grounds were raised on appeal including jurisdiction, statute of limitations, evidentiary errors and sentencing. The court affirmed the decision of the lower court rejecting these issues.
There were two superseding indictments in this case, and a concurring opinion takes issue with the court's definition of the word "superseding" and offers an interesting approach. Circuit Judge Reinhardt states in part:
Here, I see no reason, rational or otherwise, to treat the word "superseding" as meaning "not replacing," as we have done before and as we do again here. An abundance of judicial creativity has been devoted to tasks like interpreting "another" to mean "the same"; "slight" to mean "substantial"; and "superseding" to mean "not superseding." I propose redirecting that creativity to better uses, such as finding terms that actually mean what they appear to mean. We could start by using "second indictment" or "first additional indictment" to describe an indictment that follows the original indictment, but does not "supersede" it. Were we to do so, we might earn more public trust and respect than we are accorded now. Any additional amount, no matter how slight, i.e. substantial, would be most welcome.