Defendant's mail fraud and securities fraud conviction and sentence are affirmed where: 1) any claimed error by the district court in proceeding with limited pretrial matters before the Court of Appeals issued a previous mandate was harmless; 2) because the magistrate judge considered the statutory factors under the Speedy Trial Act in granting an "ends of justice" exclusion, allowing the magistrate to clarify those findings was not in error; 3) so long as the original indictment remains pending, a superseding indictment that omits a charge contained in the first indictment does not stop the tolling of the statute of limitations as to that charge; 4) even if defendant genuinely believed his investment scheme would be profitable and would result in gains for his investors, he would still be guilty of securities fraud and mail fraud if he knowingly lied to investors about the risks associated with his plan; 5) nothing in the jury instructions to which defendant objected negated the mens rea instruction; and 6) the Sixth Amendment did not require that the loss be proved to a jury beyond a reasonable doubt.
Argued and Submitted April 13, 2009
Filed September 2, 2009
Opinion by Judge McKeown
Concurrence by Judge Reinhardt
Vijay Shanker, United States Department of Justice Criminal Division, Appellate Section, Washington, DC