## Facts

- Federal prosecutors investigated and later indicted John A. Hickey and Mamie Tang for securities, mail, and wire fraud arising from an alleged real-estate investment scheme involving misappropriation of investor funds.
- During the investigation, both defendants applied for and received court-appointed counsel under the Criminal Justice Act (CJA) in the Northern District of California.
- In support of their CJA applications, defendants filed required financial affidavits; the district court ordered the affidavits sealed.
- After indictment, the government moved to unseal the affidavits and sought an order requiring defendants to show cause why they should not retain private counsel.
- A magistrate judge denied unsealing, granted an order to show cause, and—after an in camera hearing—found both defendants financially eligible for appointed counsel.
- The magistrate judge found the affidavits contained information directly related to the charged financial fraud.
- The district court affirmed the magistrate judge’s refusal to unseal and continued the sealing order.
- The government filed an interlocutory appeal and alternatively sought mandamus, invoking 28 U.S.C. § 1291, 18 U.S.C. § 3731, and the collateral order doctrine.

## Issues

1. Whether an order denying the government’s motion to unseal defendants’ CJA financial affidavits is a “final decision” appealable under 28 U.S.C. § 1291.
2. Whether 18 U.S.C. § 3731 authorizes a government interlocutory appeal from an order refusing to unseal such affidavits.
3. Whether the order qualifies for immediate review under the collateral order doctrine.
4. Whether mandamus should issue to compel unsealing if appellate jurisdiction is otherwise lacking.

## Decision

- The court dismissed the government’s interlocutory appeal for lack of jurisdiction.
- The court held the order was not a final decision under 28 U.S.C. § 1291.
- The court held 18 U.S.C. § 3731 did not authorize an appeal from this type of sealing order.
- The court held the collateral order doctrine did not apply because the sealing dispute was not completely separate from the merits and was not effectively unreviewable after final judgment.
- The court denied the government’s petition for a writ of mandamus.

## Legal Principles

- In criminal cases, government interlocutory appeals are limited to those authorized by statute; 18 U.S.C. § 3731 is construed to cover only specified categories of pretrial orders.
- A discovery-type or case-management order in an ongoing prosecution generally is not a “final decision” under 28 U.S.C. § 1291.
- The collateral order doctrine is a narrow exception requiring (1) a conclusive determination, (2) an important issue completely separate from the merits, and (3) effective unreviewability after final judgment; failure of any element defeats jurisdiction.
- Mandamus is an extraordinary remedy requiring a clear and indisputable right to relief and is not a substitute for an unauthorized interlocutory appeal.

## Conclusion

The Ninth Circuit held it lacked authority to entertain the government’s interlocutory challenge to an order keeping defendants’ CJA financial affidavits sealed during a pending fraud prosecution, and it also rejected mandamus because the government did not meet the stringent requirements for extraordinary relief.


United States v. Hickey, 185 F.3d 1064 (9th Cir. 1999)