FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-10197

v.  D.C. No.

JOHN A. HICKEY, CR-97-00218-MMC

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 02-10204

Plaintiff-Appellee, D.C. No.

v. CR-97-00218-MMC 

JOHN A. HICKEY, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted

January 13, 2004—San Francisco, California

Filed April 30, 2004

Amended March 8, 2005

Before: J. Clifford Wallace, M. Margaret McKeown, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

2915
COUNSEL

David J. Cohen, Cohen & Paik, San Francisco, California, for

the defendant-appellant. 

Robin Harris, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

ORDER

The opinion is amended as follows: (a) the paragraph in

section V that begins “Hickey’s arguments meet none of the

criteria” is deleted; (b) the first word of the next paragraph is

deleted so that the sentence reads “The district court did not

resolve an ‘important issue’ ”; and (c) the following footnote

is inserted at the end of the sentence:

We need not decide whether Hickey’s challenge to

the indictments has been “conclusively determined,”

because, as we explain, that challenge does not meet

the remaining requirements of the collateral order

doctrine. 

With these changes the petition for rehearing and the petition for rehearing en banc are denied. No further petition for

rehearing will be entertained.

UNITED STATES v. HICKEY 2919
OPINION

CALLAHAN, Circuit Judge: 

Almost five years after he was first indicted, John A.

Hickey filed a number of motions in the district court on the

eve of trial. When the motions were denied, Hickey filed two

interlocutory appeals, basing appellate jurisdiction on the collateral order doctrine. We determine that none of Hickey’s

contentions raises a colorable claim under the collateral order

doctrine and dismiss his appeals for lack of jurisdiction.

I

In September 1994, the Securities and Exchange Commission (“SEC”) filed a civil action against Hickey, his partner,

Mamie Tang, and their partnerships. The SEC seized and

closed down Continental Capital Financial Group (“CCFG”),

which was controlled fifty percent each by Hickey and Tang.

The SEC contended that from July 1992 through July 1994,

CCFG raised $5 million by selling unregistered limited partnerships in Fund I, and raised $15 million by selling unregistered limited partnerships in Fund II. The SEC alleged that

Hickey and Tang violated federal security laws by offering

for sale unregistered securities and making material misrepresentations in the materials distributed to investors. 

CCFG represented to potential investors that it owned certain real property in California’s Napa and Sonoma Valleys

and that the investments would allow it to prepare the land for

residential development, at which time CCFG would sell the

land or refinance the properties, and pay off the investments.

The receiver appointed in the SEC’s action represented that

the investors’ total losses for Funds I and II were over $17.5

million.1

1A further statement of Hickey’s operations is contained in SEC v.

Hickey, 322 F.3d 1123, amended, 335 F.3d 834 (9th Cir. 2003). We dismissed Hickey’s challenge to a contempt order for lack of jurisdiction and

affirmed the district court’s freezing of the assets of Hickey’s real estate

brokerage firm. 

2920 UNITED STATES v. HICKEY
In February 2000, the district judge hearing the SEC action

ordered Hickey to disgorge $1,106,090.69, money he had personally diverted from Fund II. When Hickey failed to make

any payments, the judge in September 2001, held him in civil

contempt and threatened to incarcerate him. Hickey then

made three monthly payments, and in December 2001, the

judge issued an order purging Hickey of contempt. Hickey

has now paid the entire $1.1 million judgment into the district

court’s registry. 

Meanwhile, on July 16, 1997, a grand jury returned a 32-

count criminal indictment against Hickey and Tang, including

several counts of mail fraud. On January 9, 2001, a separate

grand jury returned a superseding indictment solely against

Hickey, charging multiple counts of mail fraud arising from

the same scheme described in the original indictment. 

Just before trial, Hickey filed several motions. When the

district judge denied his motions, he filed two notices of

appeal. The notices stated that Hickey sought appellate review

of the district court’s denials of his (1) motion to dismiss for

violation of the Double Jeopardy Clause of the Fifth Amendment, (2) motion “to collaterally estop the United States from

proving that he personally misappropriated and/or misapplied

more than $1.1 million from Continental Capital Fund II,” (3)

motion to dismiss based on insufficient evidence before the

grand juries, (4) motion to stay trial, and (5) request for access

to the full transcript of the grand juries.2

II

Under 28 U.S.C. § 1291, a criminal case is generally not

subject to appellate review “until conviction and imposition of

2Because Hickey’s opening brief does not address the district court’s

denial of his motion for grand jury transcripts, we deem the issue waived.

Officers for Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726 (9th Cir.

1992). 

UNITED STATES v. HICKEY 2921
sentence.” Flanagan v. United States, 465 U.S. 259, 263

(1984). Accordingly, denials of pretrial motions are not usually appealable. See United States v. Cejas, 817 F.2d 595, 596

(9th Cir. 1987). 

[1] These appeals concern a narrow exception to the finality rule: the collateral order doctrine, which was set forth in

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

This doctrine allows an immediate appeal from an interlocutory order that “conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from

the merits of the action, and [is] effectively unreviewable on

appeal from a final judgment. Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978). Hickey invokes the collateral order

doctrine as the basis for all four of the issues he seeks to raise

on appeal. As we explain below, none of Hickey’s issues

comes close to meeting the Cohen standard, and accordingly,

we dismiss his appeals for lack of jurisdiction. 

III

[2] The pre-trial denial of a colorable double jeopardy

claim may be immediately appealed.3 United States v. Price,

314 F.3d 417, 420 (9th Cir. 2002); United States v. GutierrezZamarano, 23 F.3d 235, 236 (9th Cir. 1994). The Supreme

Court explained in Abney v. United States, 431 U.S. 651, 659

(1977), that a pretrial order denying a motion to dismiss on

double jeopardy grounds was a “final decision” within the

meaning of 28 U.S.C. § 1291 pursuant to the “collateral

order” exception announced in Cohen. Such an order is a final

rejection of an accused’s double jeopardy claim, the very

nature of which is collateral to and separable from the issue

3A denial of a motion to dismiss on double jeopardy grounds is

reviewed de novo. Price, 314 F.3d at 420; United States v. James, 109

F.3d 597, 599 (9th Cir. 1997). A district court’s factual findings, however,

including those on which a denial may be based, are reviewed for clear

error. United States v. Ziskin, 360 F.3d 934, 938 (9th Cir. 2003). 

2922 UNITED STATES v. HICKEY
of whether the accused is guilty of the offense charged. Furthermore, as the Double Jeopardy Clause protects an individual not only from being subjected to double punishments, but

also from being twice put to trial for the same alleged offense,

this right would be significantly undermined if appellate

review were postponed until after conviction. Id. at 659-60. 

[3] Both the Supreme Court and this court, however, have

held that we have interlocutory appellate jurisdiction to reach

the merits only of “colorable” double jeopardy claims. See

Richardson v. United States, 468 U.S. 317, 322 (1984)

(“Moreover, we have indicated that the appealability of a double jeopardy claim depends upon its being at least ‘colorable.’ ”); United States v. Sarkisian, 197 F.3d 966, 983 (9th

Cir. 1999) (“A claim of double jeopardy must be at least ‘colorable’ to confer interlocutory jurisdiction on an appellate

court.”); United States v. McKinley, 38 F.3d 428, 429 (9th Cir.

1994) (“[J]urisdiction does not exist in this case because the

double jeopardy claim is not ripe and the vindictive prosecution claim cannot be brought up on an interlocutory appeal.”).

To be colorable, a double jeopardy claim must have “some

possible validity.” Price, 314 F.3d at 420. 

[4] The Double Jeopardy Clause prohibits the government

from “punishing twice, or attempting a second time to punish

criminally for the same offense.” United States v. Usery, 518

U.S. 267, 273 (1996) (internal quotation marks omitted); see

also U.S. Const. amend. V (“[N]or shall any person be subject

for the same offence to be twice put in jeopardy of life or

limb.”). Two questions arise out of this provision. First, is the

second offense the “same” as the first? Second, is there an

attempt to “punish twice?” The former question triggers the

Blockburger test. Blockburger v. United States, 284 U.S. 299,

304 (1932) (“The applicable rule is that, where the same act

or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there

are two offenses or only one is whether each provision

requires proof of an additional fact which the other does

UNITED STATES v. HICKEY 2923
not.”). The latter question triggers the Hudson test. Hudson v.

United States, 522 U.S. 93, 99 (1997) (setting forth factors for

determining whether a civil penalty should be considered a

criminal penalty). 

[5] Under Blockburger, “[d]ouble jeopardy is not implicated so long as each violation requires proof of an element

which the other does not.” United States v. Vargas-Castillo,

329 F.3d 715, 720 (9th Cir. 2003). In this case, Hickey contends that the district judge’s order of disgorgement of $1.1

million in the SEC’s action, and the judge’s willingness to

incarcerate Hickey, constitute criminal punishment for the

same activity as charged in the indictment and bar the government from proceeding criminally against him. The offense for

which Hickey alleges he was first put in jeopardy is civil contempt arising out of a civil action brought by the SEC. The

offenses for which Hickey alleges the government now

attempts to put him in jeopardy are mail, wire, and securities

fraud. The elements of the civil contempt and fraud offenses

are completely different. Because Hickey’s double jeopardy

claim does not allege two separate offenses under Blockburger, it is not colorable, and we need not reach the issue of

how Hickey’s claim fares under Hudson.

As Hickey has not, and cannot, make a colorable claim that

his constitutional right against double jeopardy has been violated, his appeal from the district court’s denial of his motion

to dismiss on double jeopardy grounds is dismissed for lack

of appellate jurisdiction. 

IV

Hickey seeks review of the denial of his motion “to collaterally estop the United States from proving that he personally

misappropriated and/or misapplied more than $1.1 million

from Continental Capital Fund II.” Hickey contends that the

superseding indictment should be dismissed because it alleges

a scheme that requires proof of losses of more than $15 mil2924 UNITED STATES v. HICKEY
lion when the government is collaterally estopped from proving losses of more than $1.1 million. 

Hickey correctly notes that in Cejas, we exercised appellate

jurisdiction to review a denial of a claim that a prosecution

was barred by collateral estoppel. The court held that it had

appellate jurisdiction under the double jeopardy exception to

the finality rule, explaining:

The bar to a second prosecution based on collateral

estoppel is a principle “embodied in the Fifth

Amendment guarantee against double jeopardy.” . . .

Thus, an order denying a motion to bar retrial based

on collateral estoppel — being a double jeopardy

determination — is also appealable under the rationale of Abney. 

Cejas, 817 F.2d at 596 (quoting Ashe v. Swenson, 397 U.S.

436, 445 (1970)). Accordingly, Hickey may properly invoke

this court’s appellate jurisdiction to review his collateral

estoppel issue if he has a colorable claim under the double

jeopardy exception to the finality rule. 

[6] Hickey’s claim of collateral estoppel is without merit.

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same

parties in any future lawsuit.” Ashe, 397 U.S. at 443. Hickey

has met neither the common ultimate fact prong nor the same

party prong of the collateral estoppel test. 

[7] The disgorgement order in the SEC action did not

address the extent of Hickey’s alleged criminal activities. It

was at most a determination of how much Hickey personally

had obtained improperly from Fund II. Thus, the disgorgement order did not purport to determine the losses to investors

from Hickey’s schemes. Furthermore, the government has

UNITED STATES v. HICKEY 2925
agreed not to seek to relitigate the amount Hickey personally

misappropriated from Fund II. 

[8] Moreover, the SEC, the adverse party in the first proceeding, and the United States are not the same party. The

SEC brought its action pursuant to the Securities Act of 1933

and the Securities Exchange Act of 1934. It was not acting as

“the federal sovereign vindicating the criminal law of the

United States.” United States v. Heffner, 85 F.3d 435, 439

(9th Cir. 1996). Furthermore, Hickey has not rebutted the

United States’ representation that it did not have “a full and

fair opportunity to litigate anything at all in the SEC’s civil

action against Hickey.” See Standefer v. United States, 447

U.S. 10, 22 (1980) (indicating that “full and fair opportunity

to litigate” is a prerequisite of estoppel). 

V

In contrast to his first two claims, which were based on the

particular rights inherent in the Double Jeopardy Clause,

Hickey’s third claim — that the evidence before the grand

juries was insufficient — is based on a broader application of

the collateral order doctrine. 

[9] As noted, this doctrine treats orders by the district court

that “finally determine claims of right separate from, and collateral to, rights asserted in the action” as final judgments

even though they do not “end the litigation on the merits.”

Midland Asphalt Corp. v. United States, 489 U.S. 794, 798

(1989) (quoting Cohen, 337 U.S. at 546). We have held that

an interlocutory order that falls within the small class of decisions excepted from the final-judgment rule by Cohen, “(1)

conclusively determines the disputed question; (2) resolves an

important issue completely separate from the merits of the

action; and (3) is effectively unreviewable on appeal from a

final judgment.” Pace, 201 F.3d at 1119 (internal citations

and quotation marks omitted). 

2926 UNITED STATES v. HICKEY
Hickey does not challenge the facial sufficiency of the

indictments. Instead, he contends that the government failed

to present any evidence of mailing to the first grand jury in

1997, and that the government only presented indirect evidence of mailing to the second grand jury in 2001. He claims

that such evidence is critical because each count of the superseding indictment charges a particular mailing. Hickey argues

“[i]nasmuch as the government’s failure to present evidence

of mailing caused the indictment not to be an indictment, and

prevented the grand jury from exercising its function as a

grand jury, the indictment and superseding indictments must

be dismissed.” 

[10] The district court did not resolve an “important issue.”

4

Hickey argues that if the grand jury was not provided the type

of evidence of mailing that he contends is necessary, the

indictment must be dismissed. This argument is not well

taken, at least as a basis for seeking a pre-trial dismissal of an

indictment. 

[11] In Midland, the Supreme Court held that “[o]nly a

defect so fundamental that it causes the grand jury no longer

to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried.” 489

U.S. at 802. Consistent with this approach, district courts generally may not look behind an indictment before trial. In

United States v. DeLuca, 692 F.2d 1277, 1280 (9th Cir. 1982),

we held that we “do not dismiss an indictment valid on its

face absent a showing that the government flagrantly manipulated, overreached, or deceived the jury, . . . “[n]or does

incomplete evidence before the grand jury detract from the

resulting indictment.” Most recently, in United States v. Bird,

359 F.3d 1185, 1187 (9th Cir. 2004), we held that we do not

have interlocutory appellate jurisdiction to review the district

4We need not decide whether Hickey’s challenge to the indictments has

been “conclusively determined,” because, as we explain, that challenge

does not meet the remaining requirements of the collateral order doctrine.

UNITED STATES v. HICKEY 2927
court’s rejection of defendants’ challenge to the sufficiency of

an indictment. Our position is consistent with Justice Black’s

explanation in Costello v. United States, 350 U.S. 359, 408-09

(1956):

If indictments were to be held open to challenge on

the ground that there was inadequate or incompetent

evidence before the grand jury, the resulting delay

would be great indeed. The result of such a rule

would be that before trial on the merits a defendant

could always insist on a kind of preliminary trial to

determine the competency and adequacy of the evidence before the grand jury. This is not required by

the Fifth Amendment. An indictment returned by a

legally constituted and unbiased grand jury, like an

information drawn by the prosecutor, if valid on its

face, is enough to call for trial of the charge on the

merits. The Fifth Amendment requires nothing more.

[12] Hickey’s allegation of insufficient evidence before the

grand jury, even if meritorious, would not rise to the level of

a fundamental defect. The Supreme Court and this court have

repeatedly rejected appeals from similar pre-trial orders.5

5

See Midland, 489 U.S. at 801 (holding that motion to dismiss grand

jury indictment for alleged violation of rule prohibiting public disclosure

of matters occurring before grand jury was not appealable before trial);

United States v. Moreno-Green, 881 F.2d 680, 684 (9th Cir. 1989) (holding that order denying defendants’ motion to dismiss indictment on basis

of alleged prosecutorial misconduct before grand jury was not appealable

before trial); United States v. Shah, 878 F.2d 272, 275 (9th Cir. 1989)

(concluding that orders refusing to dismiss indictment for alleged grand

jury misconduct and refusing to compel discovery of grand jury proceedings were not appealable before trial); United States v. Schiff, 874 F.2d

705, 706 (9th Cir. 1989) (holding that motions to dismiss indictment and

for disclosure of grand jury transcripts were not appealable); United States

v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982) (concluding that

order denying motion to dismiss based on prosecutorial vindictiveness was

not appealable before trial); United States v. MacDonald, 435 U.S. 850,

862 (1978) (holding that denial of motion to dismiss on speedy trial

grounds was not appealable before trial). 

2928 UNITED STATES v. HICKEY
In addition, Hickey’s argument cannot be said to be “completely separate from the merits of the action.” The legal consequences of the lack of some item of evidence before a grand

jury would appear to depend, at least in part, on the particular

charges in the indictment, the other evidence before the grand

jury, and the relationship between that other evidence and the

allegedly missing evidence.6

[13] Finally, Hickey’s claim is not “effectively unreviewable on appeal from a final judgment.” In Midland, the

Supreme Court explained that although the denial of any pretrial motion might be said to be unreviewable if it requires

that the defendant go to trial, the collateral order doctrine only

applies where there is an explicit statutory or constitutional

guarantee prohibiting trial.7 Hickey is in the same position as

the defendant in Pace. There, we dismissed the defendant’s

interlocutory appeal based on the collateral order doctrine

because we determined that the McCarran-Ferguson Act did

not protect the defendant from prosecution, noting that

whether the Act protected him from federal conviction could

be reviewed on appeal from a final judgment. Pace, 201 F.3d

at 1120. 

[14] In sum, to come under the collateral order doctrine, an

interlocutory appeal must challenge an order that conclusively

determines an important issue completely separate from the

merits of the action that cannot be effectively reviewed on

appeal from a final judgment. As Hickey’s challenge to the

6We note that here the district court reviewed the grand jury transcripts

in camera, gave Hickey access to some portions of the transcript and

determined that the indictments were based on probable cause. 

7A right not to be tried in the sense relevant to the Cohen exception rests

upon an explicit statutory or constitutional guarantee that trial will not

occur — as in the Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”), . . .

or the Speech or Debate Clause (“[F]or any Speech or Debate in either

House, [the Senators and Representatives] shall not be questioned in any

other Place”). 489 U.S. at 801 (internal citations omitted). 

UNITED STATES v. HICKEY 2929
sufficiency of the evidence before the grand jury does not

raise a colorable claim under these criteria, his appeal from

the district court’s denial of his motion to dismiss the superseding indictment for improprieties before the grand jury is

dismissed for lack of jurisdiction.

VI

Hickey also seeks appellate review under the collateral

order doctrine of the district court’s denial of his motion to

stay the trial. The district court abused its discretion, Hickey

argues, by refusing to stay his trial notwithstanding claims

that he lacked sufficient funds to retain experts indispensable

to his defense. We have jurisdiction to review the district

court’s order denying Hickey’s motion for a stay if the order

conclusively resolves an important issue completely separate

from the merits of the action and is effectively unreviewable

on appeal. Marchetti v. Bitterolf, 968 F.2d 963 (9th Cir.

1992). 

[15] Whether or not Hickey’s appeal is moot,8 we lack

jurisdiction to review the district court’s order denying his

motion for stay. The district court did not conclusively determine whether Hickey possessed sufficient funds to present his

defense. Although Hickey’s payment of the $1.1 million disgorgement order might raise doubts as to his alleged poverty,

Hickey had options if he truly believed that he could not adequately prepare for trial. Hickey could have sought funding

under the Criminal Justice Act9 or he could have sought a limited continuance to address a particularized need. Furthermore, Hickey may raise his arguments on appeal from a final

judgment, should he be convicted.

8We note that: (1) Hickey’s appeal from the contempt order in the SEC

action has been dismissed, Hickey, 322 F.3d at 1123; (2) Hickey has paid

the entire disgorgement order; and (3) the district court stayed proceedings

pending these appeals. 

9Hickey was aware of this option as his eligibility for appointed counsel

under the Criminal Justice Act had been contested earlier in the litigation.

2930 UNITED STATES v. HICKEY
VII

[16] The collateral order doctrine is a time-honored and

necessary exception to the finality rule. However, interlocutory appeals under the collateral order doctrine in criminal

cases are properly limited to instances, such as colorable double jeopardy claims, where there are statutory or constitutional guarantees against the defendants standing trial. As

none of Hickey’s four contentions raises a colorable claim

under the collateral order doctrine, these appeals are DISMISSED for lack of jurisdiction. 

UNITED STATES v. HICKEY 2931