U.S. v. Hickey

Citation367 F.3d 888
Decision Date30 April 2004
Docket NumberNo. 02-10197.,No. 02-10204.,02-10197.,02-10204.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John A. HICKEY, Defendant-Appellant.

David J. Cohen, Cohen & Paik, San Francisco, CA, for the defendant-appellant.

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

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CR-97-00218-MMC.

Before: WALLACE, McKEOWN, and CALLAHAN, Circuit Judges.

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

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 sentence." Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Accordingly, denials of pretrial motions are not usually appealable. See United States v. Cejas, 817 F.2d 595, 596 (9th Cir.1987).

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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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, 98 S.Ct. 2454, 57 L.Ed.2d 351 (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

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. Gutierrez-Zamarano, 23 F.3d 235, 236 (9th Cir.1994). The Supreme Court explained in Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (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 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, 97 S.Ct. 2034.

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, 104 S.Ct. 3081, 82 L.Ed.2d 242 (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.

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. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (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, 52 S.Ct. 180, 76 L.Ed. 306 (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 not."). The latter question triggers the Hudson test. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (setting forth factors for determining whether a civil penalty should be considered a criminal penalty).

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 million 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...

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