                  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
                    UNITED STATES v. HICKEY                 2919


                          COUNSEL

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

Robin Harris, Assistant United States Attorney, San Fran-
cisco, 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 peti-
tion for rehearing en banc are denied. No further petition for
rehearing will be entertained.
2920                   UNITED STATES v. HICKEY
                               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 col-
lateral 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 Commis-
sion (“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 part-
nerships in Fund I, and raised $15 million by selling unregis-
tered 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 misrepre-
sentations in the materials distributed to investors.

   CCFG represented to potential investors that it owned cer-
tain 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
  1
    A 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 dis-
missed 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.
                       UNITED STATES v. HICKEY                      2921
  In February 2000, the district judge hearing the SEC action
ordered Hickey to disgorge $1,106,090.69, money he had per-
sonally 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 Amend-
ment, (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
  2
   Because 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).
2922                   UNITED STATES v. HICKEY
sentence.” Flanagan v. United States, 465 U.S. 259, 263
(1984). Accordingly, denials of pretrial motions are not usu-
ally appealable. See United States v. Cejas, 817 F.2d 595, 596
(9th Cir. 1987).

   [1] These appeals concern a narrow exception to the final-
ity 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 interlocu-
tory order that “conclusively determine[s] the disputed ques-
tion, 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. Gutierrez-
Zamarano, 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
  3
   A 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).
                    UNITED STATES v. HICKEY                 2923
of whether the accused is guilty of the offense charged. Fur-
thermore, as the Double Jeopardy Clause protects an individ-
ual 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 dou-
ble jeopardy claim depends upon its being at least ‘color-
able.’ ”); United States v. Sarkisian, 197 F.3d 966, 983 (9th
Cir. 1999) (“A claim of double jeopardy must be at least ‘col-
orable’ 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 prosecu-
tion 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
2924               UNITED STATES v. HICKEY
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 impli-
cated 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 con-
tends 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 govern-
ment from proceeding criminally against him. The offense for
which Hickey alleges he was first put in jeopardy is civil con-
tempt 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 Blockbur-
ger, 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 vio-
lated, 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 collat-
erally 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 mil-
                   UNITED STATES v. HICKEY                 2925
lion when the government is collaterally estopped from prov-
ing 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 ratio-
    nale 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 ulti-
mate fact has once been determined by a valid and final judg-
ment, 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 disgorge-
ment order did not purport to determine the losses to investors
from Hickey’s schemes. Furthermore, the government has
2926                UNITED STATES v. HICKEY
agreed not to seek to relitigate the amount Hickey personally
misappropriated from Fund II.

   [8] Moreover, the SEC, the adverse party in the first pro-
ceeding, 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 col-
lateral 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 deci-
sions 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).
                       UNITED STATES v. HICKEY                      2927
   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 evi-
dence of mailing to the second grand jury in 2001. He claims
that such evidence is critical because each count of the super-
seding 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 indict-
ment, gives rise to the constitutional right not to be tried.” 489
U.S. at 802. Consistent with this approach, district courts gen-
erally 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 manipu-
lated, 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
  4
   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.
2928                   UNITED STATES v. HICKEY
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 evi-
     dence 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) (hold-
ing 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 proceed-
ings 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).
                        UNITED STATES v. HICKEY                          2929
   In addition, Hickey’s argument cannot be said to be “com-
pletely separate from the merits of the action.” The legal con-
sequences 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 unreview-
able on appeal from a final judgment.” In Midland, the
Supreme Court explained that although the denial of any pre-
trial 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
  6
     We 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.
   7
     A 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 sub-
ject 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).
2930                   UNITED STATES v. HICKEY
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 super-
seding 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 deter-
mine whether Hickey possessed sufficient funds to present his
defense. Although Hickey’s payment of the $1.1 million dis-
gorgement order might raise doubts as to his alleged poverty,
Hickey had options if he truly believed that he could not ade-
quately prepare for trial. Hickey could have sought funding
under the Criminal Justice Act9 or he could have sought a lim-
ited continuance to address a particularized need. Further-
more, Hickey may raise his arguments on appeal from a final
judgment, should he be convicted.
  8
     We 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.
   9
     Hickey was aware of this option as his eligibility for appointed counsel
under the Criminal Justice Act had been contested earlier in the litigation.
                   UNITED STATES v. HICKEY                2931
                             VII

   [16] The collateral order doctrine is a time-honored and
necessary exception to the finality rule. However, interlocu-
tory appeals under the collateral order doctrine in criminal
cases are properly limited to instances, such as colorable dou-
ble jeopardy claims, where there are statutory or constitu-
tional 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 DIS-
MISSED for lack of jurisdiction.
