Hickey

concurring:

I reluctantly concur in Judge McKeown’s opinion. I recognize that, under the precedent cited in the opinion, both in and out-of-circuit, “superseding” has been given a meaning in the context of a criminal indictment that is the direct opposite of its meaning in every other known context. 1 This is, unfortunately, not the first occasion on which we have construed words in this manner. If “slight” may be equated with “substantial” and “another state” may include the “same state,” see United States v. Saavedra-Velazquez, No. 08-10078, 578 F.3d 1103, 1110-11 (9th Cir. Aug. 21, 2009) (Reinhardt, J., specially concurring), then we should not be surprised that a superseding indictment does not supersede anything at all. I do not favor depriving words of all *933 meaning simply in order to reach a desired legal result. 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”; 2 “slight” to mean “substantial”; 3 and “superseding” to mean “not superseding.” 4 I propose…

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,…

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.

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…