United States v. Douglas Decinces , 808 F.3d 785 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50033
Plaintiff-Appellant,
D.C. No.
v. 8:12-cr-00269-
AG-1
DOUGLAS V. DECINCES,
Defendant-Appellee,
DAVID PARKER; F. SCOTT JACKSON;
ROGER WITTENBACH; JAMES
MAZZO,
Defendants.
UNITED STATES OF AMERICA, No. 15-50058
Plaintiff-Appellee,
D.C. No.
v. 8:12-cr-00269-
AG-5
JAMES V. MAZZO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
2 UNITED STATES V. DECINCES
Argued and Submitted
September 1, 2015—Pasadena, California
Filed December 22, 2015
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Watford
SUMMARY*
Criminal Law
The panel affirmed the district court’s pretrial order
granting motions in limine, and dismissed a cross-appeal for
lack of jurisdiction, in a case in which Douglas DeCinces,
James Mazzo, and others are charged with insider-trading
offenses.
The panel held that it has jurisdiction pursuant to 18
U.S.C. § 3731 to entertain the government’s interlocutory
appeal of the district court’s order granting DeCinces’s and
Mazzo’s motions in limine. The panel explained that the fact
that the district court’s order was not final under 28 U.S.C. §
1291 does not bar the appeal under § 3731, and that because
the district court granted the motions, it is immaterial that the
district court described its ruling as tentative. The panel held
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DECINCES 3
that although the excluded evidence was “other acts”
evidence within the meaning of Fed. R. Evid. 404(b), it was
admissible thereunder to show intent, plan, knowledge, or
lack of mistake; and that taken as a whole, it was not
categorically inadmissible under Fed. R. Evid. 403.
The panel dismissed for lack of jurisdiction Mazzo’s
interlocutory cross-appeal challenging the district court’s
order denying his motion to dismiss the portion of the
indictment alleging securities fraud in violation of 18 U.S.C.
§ 1348. The panel held that it has no pendent appellate
jurisdiction because the evidentiary issues raised by the
government’s appeal are largely distinct from those
concerning the scope and application of § 1348 raised in
Mazzo’s appeal. The panel held that it lacks jurisdiction
under the collateral order doctrine because the issue he raises
– whether multiplicitous punishment would be allowed for §
1348 and Rule 10b-5 charges that, regardless of his double
jeopardy claim, may be tried – is reviewable on appeal from
a final judgment.
Concurring, Judge Watford agreed that the panel lacks
jurisdiction over Mazzo’s cross-appeal under the collateral
order doctrine. He wrote that Mazzo has no colorable claim
under the Double Jeopardy Clause, which just precludes the
court from entering convictions on both the Rule 10b-5 and
§ 1348 counts in the event he is convicted of both at trial, and
that hasn’t happened yet.
4 UNITED STATES V. DECINCES
COUNSEL
Eileen M. Decker, United States Attorney, Robert E.
Dugdale, Assistant United States Attorney, Chief, Criminal
Division, Stephen A. Cazares (argued), Assistant United
States Attorney, Deputy Chief, Major Frauds Section, Mark
R. Yohalem (argued), Lawrence E. Kole, Jennifer L. Waier,
and Ivy A. Wang, Assistant United States Attorneys, Los
Angeles, California, for Plaintiff-Appellant/Plaintiff-
Appellee.
Richard Marmaro, Douglas A. Smith, Skadden, Arps, Slate
Meagher & Flom LLP, Los Angeles, California; Clifford M.
Sloan (argued), Michael A. McIntosh, Skadden, Arps, Slate,
Meagher & Flom LLP, Washington, D.C., for Defendant-
Appellee/Defendant-Appellant James Mazzo.
Kenneth B. Julian (argued), Arunabha Bhoumik, Andrea Ruth
Bird, and Garrett Mott, Manatt, Phelps, & Phillips, LLP,
Costa Mesa, California, for Defendant-Appellee Douglas
DeCinces.
OPINION
RAWLINSON, Circuit Judge:
This case presents two appeals, one from the government
and one from Defendant-Appellant James Mazzo (Mazzo).
In Appeal No. 15-50033, the government appeals the district
court’s pretrial order granting motions in limine to exclude
certain pieces of evidence in a case in which Douglas
DeCinces (DeCinces), Mazzo, and others are charged with
UNITED STATES V. DECINCES 5
insider-trading offenses relating to the stock of Advanced
Medical Optics, Inc.
Appeal No. 15-50058 is Mazzo’s cross-appeal
challenging the district court’s order denying his motion to
dismiss a securities fraud charge under 18 U.S.C. § 1348 for
failing to state an offense and for violating the Double
Jeopardy Clause. We conclude that we have jurisdiction over
the government’s interlocutory appeal, and we reverse the
district court’s ruling on the motions in limine. We conclude
that we lack jurisdiction over Mazzo’s cross-appeal, which
we dismiss.
I. BACKGROUND
The government’s original indictment charged DeCinces,
F. Scott Jackson (Jackson), and other defendants, not
including Mazzo, with insider trading and money laundering.
The grand jury also returned a First Superseding Indictment
and a Second Superseding Indictment which became the
operative charging document, and added Mazzo as a
defendant.
The Second Superseding Indictment alleged that Mazzo
and DeCinces participated in a scheme to defraud Mazzo’s
company, Advanced Medical Optics, Inc. (EYE),1 and its
shareholders. See id. According to the Second Superseding
Indictment, as President, Chief Executive Officer, and
Chairman of the Board of Directors of EYE, Mazzo had
access to material, nonpublic information about EYE’s
forthcoming merger and acquisition activities, which he
1
“EYE” was the New York Stock Exchange ticker symbol for
Advanced Medical Optics, Inc.
6 UNITED STATES V. DECINCES
shared with DeCinces in violation of a duty of trust and
confidence to EYE and for a personal benefit.
The Second Superseding Indictment alleged that, in
December, 2006, based on one or more tips from Mazzo that
EYE was preparing to acquire IntraLase, DeCinces sold all of
his shares in EYE and purchased stock in IntraLase. After the
public announcement of the acquisition, DeCinces sold his
IntraLase stock, profiting approximately $33,000.
The government intimates, although it did not charge in
the indictment, that Mazzo also tipped DeCinces in the
summer of 2007 about EYE’s attempt to acquire Bausch and
Lomb. The government alleges that DeCinces sold $250,000
of EYE stock and purchased Bausch and Lomb stock mere
hours before EYE publicly announced that it had submitted
a proposal to buy Bausch and Lomb.
The Second Superseding Indictment also alleged that, in
late 2008 and early 2009, Mazzo tipped DeCinces that EYE
would be acquired by Abbot Laboratories, and that DeCinces
thereafter liquidated his diversified stock portfolio, invested
the proceeds in EYE stock, and shared nonpublic information
about the impending acquisition with several other people,
urging them to purchase EYE stock. After the Abbott
acquisition, DeCinces sold his shares of EYE stock, realizing
a profit of approximately $1.3 million.
DeCinces moved to strike the IntraLase allegations from
the Second Superseding Indictment as prejudicial surplusage
and as time-barred. The district court denied the motion,
ruling that “the [2006 and 2007 IntraLase] allegations can
show a common scheme, lack of mistake, or intent to defraud
in the alleged 2008 and 2009 actions when viewing the
UNITED STATES V. DECINCES 7
contested allegations collectively and comparing them to the
2008 and 2009 actions.” The court further ruled that “[p]art
of a section 1348 prosecution includes proving a scheme to
defraud and knowing intent by the defendant to do the same.
Among other things, the contested factual allegations appear
to directly mirror meetings and trades that took place in 2008
and 2009 and provide context for making this comparison.”
Accordingly, the district court held that “Decinces has not
shown the contested allegations are ‘irrelevant or immaterial
to the charges.’”
Mazzo and DeCinces subsequently filed motions in limine
to exclude evidence involving the IntraLase and Bausch and
Lomb transactions as inadmissible “other acts” evidence
under Rule 404(b) of the Federal Rules of Evidence, and as
evidence that should be excluded under Rule 403.
Specifically, DeCinces and Mazzo asserted that admission of
the evidence would unduly consume time and require
additional mini-trials.
At a hearing on the motions in limine the court gave its
tentative ruling, granting the motions in limine to exclude
evidence regarding the IntraLase and Bausch and Lomb
transactions. The court provided no explanation of the ruling.
The minute order memorializing the ruling stated only:
“GRANTS the motion [to exclude propensity/other act
evidence] without prejudice to asking the Court outside the
presence of the jury to consider permitting the introduction of
the evidence.”
The government filed a timely notice of appeal,
challenging the district court’s grant of the motions in limine.
Mazzo filed a timely cross-appeal.
8 UNITED STATES V. DECINCES
II. STANDARDS OF REVIEW
We have jurisdiction to determine our jurisdiction. See
Allen v. Meyer, 755 F.3d 866, 867 (9th Cir. 2014). We
review this question de novo. See United States v. W.R.
Grace, 526 F.3d 499, 505 (9th Cir. 2008) (en banc). We
review a district court’s exclusion of evidence for abuse of
discretion. See Servs. Emps. Int’l Union v. Nat’l Union of
Healthcare Workers, 718 F.3d 1036, 1050 (9th Cir. 2013), as
amended. A district court abuses its discretion when it makes
an error of law or acts arbitrarily. See United States v.
Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc); see
also Tapley v. Locals 302 & 612 of Int’l Union of Operating
Engineers-Employers Const. Indus. Ret. Plan, 728 F.3d 1134,
1139 (9th Cir. 2013).
III. DISCUSSION
Appeal No. 15-50033-Government’s Interlocutory Appeal
of the District Court’s Order Granting DeCinces’ and
Mazzo’s Motions in Limine
A. We have jurisdiction pursuant to 18 U.S.C. § 3731 to
entertain the government’s interlocutory appeal.
Title 18 U.S.C. § 3731 provides, in pertinent part:
In a criminal case . . . [a]n appeal by the
United States shall lie to a court of appeals
from a decision or order of a district court
suppressing or excluding evidence . . . not
made after the defendant has been put in
jeopardy and before the verdict or finding on
an indictment or information, if the United
UNITED STATES V. DECINCES 9
States attorney certifies[2] to the district court
that the appeal is not taken for purpose of
delay and that the evidence is a substantial
proof of a fact material in the proceeding. . . .
(Emphasis Added). DeCinces and Mazzo argue that the
district court’s rulings were tentative and nonfinal, and that
we therefore lack jurisdiction to consider the government’s
appeal. We disagree.
First, DeCinces argues that the district court’s evidentiary
ruling was not a “final decision” under 28 U.S.C. § 1291.
Relying on our decision in United States v. Dior, 671 F.2d
351 (9th Cir. 1982), he contends that 18 U.S.C. § 3731permits the government “to appeal only those orders that are
final decisions under” § 1291. Id. at 355 (footnote reference
omitted). Although Dior appears to have concluded that
§ 3731 did not replace the finality requirement of § 1291, we
have since explicitly recognized, in an en banc decision, the
government’s “right to an interlocutory appeal from a district
court’s evidentiary rulings.” W.R. Grace, 526 F.3d at 505;
see also United States v. Chaudhry, 630 F.3d 875, 878 (9th
Cir. 2011). (“[D]espite 28 U.S.C. § 1291’s finality
requirement, Section 3731 can, and does, make it lawful for
the government to take certain appeals even though there is
no final judgment. . . .”) (citations omitted).
Because evidentiary rulings are by their very nature
nonfinal, see Hoffman v. Constr. Protective Servs., Inc.,
541 F.3d 1175, 1178 (9th Cir. 2008), as amended, our
recognition in W.R. Grace, 526 F.3d at 505, of the
2
There is no contention that there was a defect in the certification
provided by the United States Attorney.
10 UNITED STATES V. DECINCES
government’s right to appeal a nonfinal evidentiary ruling
was a sub silentio reversal of the language in Dior engrafting
a finality requirement onto § 3731. See Herzog v. United
States, 226 F.2d 561, 567-68 (9th Cir. 1955) (concluding that
a sub silentio reversal has occurred when two cases “cannot
both be right”). The fact that the district court’s order was
not final under § 1291 does not bar the government’s
interlocutory appeal under § 3731.
Second, Mazzo argues that the district court’s order
granting the motions in limine was insufficiently final even
within the scope of § 3731 because the district court
described its ruling as tentative and made clear that the order
was “without prejudice to asking the Court . . . to consider
permitting the introduction of the evidence” at trial. Because
the district court granted the motions in limine, however, its
order was a pretrial “order of a district court suppressing or
excluding evidence” and therefore is described by the plain
text of § 3731. The fact that the district court described its
ruling as tentative is immaterial, as pretrial evidentiary
rulings are generally tentative, in the sense that they are
subject to reconsideration at trial. Indeed, we have expressly
recognized that a pretrial order excluding evidence is subject
to appeal under § 3731 “even though the exclusion of
evidence in conditional.” United States v. Hoffman, 794 F.2d
1429, 1431 n.2 (9th Cir. 1986).
In sum, we have jurisdiction to decide the government’s
interlocutory appeal.
UNITED STATES V. DECINCES 11
B. The district court abused its discretion when it
granted the motions in limine excluding the IntraLase
and Bausch and Lomb evidence.
As an initial matter, we note that the district court did not
elucidate from the bench or in its subsequent order the
reasoning behind its grant of the motions in limine.3 In
particular, the district court did not indicate whether it was
excluding the evidence under Rule 403, Rule 404, or both.
We conclude that, although this evidence was “other acts”
evidence within the meaning of Rule 404(b), it was
admissible under Rule 404(b) to show intent, plan,
knowledge, or lack of mistake. We also conclude that, taken
as a whole, the evidence was not categorically inadmissible
under Rule 403.
We consider first whether the evidence should have been
excluded under Rule 404. That rule provides in pertinent part:
1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible to prove
a person’s character in order to show that on
3
After the government filed this appeal, the district court provided
additional reasons for its ruling. The court may have lacked jurisdiction
to do so, see United States v. Valenzuela-Arisqueta, 724 F.3d 1290, 1293
n.3 (9th Cir. 2013) (holding that the district court lacked jurisdiction to
proceed to trial while an interlocutory appeal was pending), but that is a
question that we need not decide. Even if we consider the district court’s
later explanations, the court erred to the extent that it excluded the
evidence on Rule 403 grounds. As discussed below in text, the evidence
has strong probative value, and the court did not identify any
countervailing consideration sufficient to substantially outweigh its
probative value.
12 UNITED STATES V. DECINCES
a particular occasion the person acted in
accordance with the character.
2) Permitted Uses . . . This evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. . . .
Fed. R. Evid. 404(b).
At a minimum, evidence of the IntraLase and Bausch and
Lomb transactions was admissible to prove intent, plan,
knowledge or absence of mistake. See United States v.
Ramos-Atondo, 732 F.3d 1113, 1122–24 (9th Cir. 2013). It
appears that the district court at one point recognized the
relevance of this very evidence. When DeCinces moved to
strike the IntraLase allegations from the indictment, the
district court denied the motion on the basis that the IntraLase
allegations could “show a common scheme, lack of mistake,
or intent to defraud.”
The excluded evidence reflects DeCinces’ investment
history and pattern of trading, prompting DeCinces’ securities
broker to remark that DeCinces exhibited uncanny timing in
buying stocks of companies being acquired and selling stocks
of companies doing the acquiring. The securities broker
“added that in his 20 years of experience he never had a client
buy a large position in a company that was acquired soon
thereafter and he felt that Mr. DeCinces may have acted with
the benefit of material inside information. . . .”
The excluded evidence satisfies the other predicates for
admissibility delineated in United States v. Bailey, 696 F.3d
UNITED STATES V. DECINCES 13
794, 799 (9th Cir. 2012). In that case, we concluded that
other act evidence is admissible if:
(1) the evidence tends to prove a material
point; (2) the other act is not too remote in
time; (3) the evidence is sufficient to support
a finding that defendant committed the other
act; and (4) (in certain cases) the act is similar
to the offense charged.
Id. (citation omitted).
The IntraLase and Bausch and Lomb evidence is material.
As the district court recognized, this evidence tends to prove
a common scheme and a lack of mistake or coincidence.
Second, these prior acts were not too remote in time. The
indictment spans a two-and-a-half year time frame from
October, 2006 to January, 2009. The IntraLase transactions
occurred from December, 2006 to February, 2007, and the
Bausch and Lomb transactions were in July, 2007, both
within the timespan covered by the indictment. See United
States v. Lozano, 623 F.3d 1055, 1059-60 (9th Cir. 2010) (per
curiam) (concluding that three years was not too remote).
Third, the IntraLase and Bausch and Lomb evidence is
sufficient to support a determination that Mazzo and
DeCinces engaged in insider trading, given Mazzo’s access
to insider information and the temporal and
tipper/tippee/company connections. See, e.g., United States
v. Salman, 792 F.3d 1087, 1092 (9th Cir. 2015) (sustaining a
conviction for insider trading where the tipper and tippee both
benefitted from disclosure of insider information).
14 UNITED STATES V. DECINCES
Finally, these acts not only are similar, but are essentially
the same as the charged conduct. Having met these
predicates, the IntraLase and Bausch and Lomb evidence was
relevant and admissible under Rule 404(b). To the extent the
district court concluded otherwise, it abused its discretion.
See Tapley, 728 F.3d at 1139.
Nor was the evidence properly excluded under Rule 403.
See United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.
2003). Because the district court conducted no balancing
under Rule 403, we review the exclusion of evidence de novo.
See United States v. Moran, 493 F.3d 1002, 1012 (9th Cir.
2007), as amended. The evidence is highly probative. As
discussed above, the evidence tends to support the
government’s allegations about the defendants’ intent, plan,
knowledge, or lack of mistake. In particular, the evidence
tends to support the government’s allegations that DeCinces’
and the other trading defendants’ purchases of EYE stock
were the product of a scheme to trade on nonpublic
information obtained from EYE, not mere good luck. The
evidence is also relevant to showing the defendants’
respective roles in the alleged scheme. Although the
admission of the evidence may harm the defendants’ case,
that is not reason to exclude it under Rule 403, which refers
only to unfair prejudice. See United States v. Bowen,
857 F.2d 1337, 1341 (9th Cir. 1988). Similarly, the
admission of any evidence will necessarily lengthen the trial,
but we cannot conclude that it would result in “undue delay”
or “wasting time,” in light of the significant probative value
of this evidence. Fed. R. Evid. 403 (emphases added).
We conclude that, taken as a whole, the IntraLase and
Bausch and Lomb evidence is admissible under Rule 403.
We therefore reverse the district court’s order granting the
UNITED STATES V. DECINCES 15
defendants’ motions to exclude this evidence. The district
court may impose appropriate limits on the government’s
presentation of this evidence, should developments at trial
warrant doing so.
Appeal No. 15-50058-Mazzo’s Interlocutory Appeal of the
District Court’s Denial of His Motion to Dismiss the
Indictment.
A. We lack pendent appellate jurisdiction over Mazzo’s
interlocutory appeal.
Mazzo seeks to challenge the district court’s order
denying his motion to dismiss the portion of the indictment
alleging securities fraud in violation of 18 U.S.C. § 1348.
Mazzo first argues that we have pendent appellate jurisdiction
over this appeal.
We have determined that pendent appellate jurisdiction is
the
exercise of jurisdiction over issues that
ordinarily may not be reviewed on
interlocutory appeal, but may be reviewed on
interlocutory appeal if raised in conjunction
with other issues properly before the court and
if the rulings were inextricably intertwined or
if review of the pendent issue was necessary
to ensure meaningful review of the
independently reviewable issue. . . .
United States v. Tillman, 756 F.3d 1144, 1149 (9th Cir. 2014)
(citation, alteration, and internal quotation marks omitted).
16 UNITED STATES V. DECINCES
Because Mazzo’s appeal of the denial of the motion to
dismiss is not “inextricably intertwined” with the
government’s interlocutory appeal as envisioned in Tillman,
we have no pendent jurisdiction over this issue.4 Id.Exercising pendent appellate jurisdiction is a rare event. See
id.We have emphasized that what issues qualify as
inextricably intertwined should be interpreted “very
narrowly.” Id. Indeed, issues resting upon “common facts”
do not necessarily qualify for pendent appellate jurisdiction.
Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir. 2000),
as amended (citation omitted). Rather, the issues must rely
on legal theories that are “so intertwined that we must decide
the pendent issue in order to review the claims properly raised
on interlocutory appeal,” or “resolution of the issue properly
raised on interlocutory appeal [must] necessarily resolve[] the
pendent issue.” Id. (citations omitted). Neither circumstance
is presented in this case, as the evidentiary issues raised by
the government’s appeal are largely distinct from those
concerning the scope and application of 18 U.S.C. § 1348raised in Mazzo’s appeal. The common facts between
Mazzo’s appeal and the government’s interlocutory appeal,
without more, do not confer pendent appellate jurisdiction.
See id.4
Because we held that Mazzo’s claims do not meet the requirements for
pendent appellate jurisdiction, we need not decide whether pendent
jurisdiction applies in the criminal context. Cf. United States v. Garner,
632 F.2d 758, 763 n.2 (9th Cir. 1980) (interpreting Abney v. United States,
431 U.S. 651 (1977), as precluding the exercise of pendent appellate
jurisdiction over claims brought in conjunction with a double jeopardy
claim appealable under the collateral order doctrine); United States v.
Lopez-Lukis, 102 F.3d 1164, 1167 n.10 (11th Cir. 1997) (recognizing
pendent appellate jurisdiction in the criminal context).
UNITED STATES V. DECINCES 17
B. We lack jurisdiction over Mazzo’s interlocutory
appeal under the collateral order doctrine.
Second, Mazzo argues that we have jurisdiction under the
collateral order doctrine, which permits appellate review of
a “small class” of cases that “finally determine[s] claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent
of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). As
we have explained, the collateral order doctrine applies only
if: 1) the collateral order conclusively resolved the disputed
question; 2) review will resolve an important issue that is
completely separate from the merits of the action; and 3) the
issue will essentially be unreviewable on appeal from a final
judgment. See Tillman, 756 F.3d at 1149.
Mazzo contends that he has asserted a “colorable” double
jeopardy claim, which renders this matter immediately
reviewable under the collateral order doctrine. United States
v. Lewis, 368 F.3d 1102, 1107 (9th Cir. 2004). Mazzo’s
double jeopardy claim is premised on the theory that
inclusion in the indictment of a charge under 18 U.S.C.
§ 1348 violated the Double Jeopardy Clause of the Fifth
Amendment. Mazzo argues, in particular, that charging him
with insider trading under both Rule 10b-5 (17 C.F.R
§ 240.10b-5), and § 1348 was multiplicitous.
We assume, for purposes of decision, that Mazzo’s double
jeopardy claim is colorable and that the first two prongs of
the collateral order doctrine are satisfied; nevertheless, his
claim flounders on the third prong—reviewability following
judgment. See Tillman, 756 F.3d at 1149 (noting that the
18 UNITED STATES V. DECINCES
collateral order doctrine is inapplicable where a direct appeal
is available). Mazzo has not disputed his entitlement to a
direct appeal should he be convicted of violations of both
§ 1348 and Rule 10b-5. See id. He argues, rather, that a
direct appeal is insufficient because the Double Jeopardy
Clause protects him against the trial itself. But that principle
does not apply when, as here, the issue is whether
multiplicitous punishment would be allowed for charges
that—regardless of the double jeopardy claim—may be tried.
See United States v. Schales, 546 F.3d 965, 978 (9th Cir.
2008) (“The Double Jeopardy Clause does not, of course,
prohibit the government from prosecuting a defendant for
multiple offenses in a single prosecution.”) (citing Ohio v.
Johnson, 467 U.S. 493, 500 (1984)). For these reasons,
Mazzo cannot establish jurisdiction under the collateral order
doctrine.
Because we have neither pendent appellate jurisdiction
nor collateral order jurisdiction, we must dismiss Mazzo’s
cross-appeal. See In re Application for Exemption from Elec.
Pub. Access Fees, 728 F.3d 1033, 1041 (9th Cir. 2013).
IV. CONCLUSION
Title 18 U.S.C. § 3731 is the precise mechanism through
which appellate jurisdiction is conferred in a criminal case
when the government seeks review of a pretrial ruling. The
district court’s order granting the motions in limine was
sufficiently final as to be appealable under § 3731. Given
that we have jurisdiction to entertain the government’s
appeal, we hold that the district court abused its discretion by
granting the motions in limine filed pursuant to Rule 404, and
by excluding evidence of insider trading involving IntraLase
and Bausch and Lomb.
UNITED STATES V. DECINCES 19
We lack jurisdiction over Mazzo’s cross-appeal. There is
neither pendent appellate jurisdiction nor jurisdiction under
the collateral order doctrine. Consequently, Mazzo’s appeal
must be dismissed.
No. 15-50033-The district court’s grant of the
defendants’ motions in limine is REVERSED.
No. 15-50058-Mazzo’s appeal from the district court’s
order denying his motion to dismiss is DISMISSED for
lack of jurisdiction.
WATFORD, Circuit Judge, concurring:
I agree that we lack jurisdiction over Mazzo’s cross-
appeal under the collateral order doctrine. Mazzo may invoke
the doctrine only if he has a “colorable” claim under the
Double Jeopardy Clause. United States v. Alvarez-Moreno,
657 F.3d 896, 899 (9th Cir. 2011). He has no such claim—at
least not right now. He contends only that the Rule 10b-5 and
18 U.S.C. § 1348 counts are multiplicitous. Even if true
(something we need not decide), the Double Jeopardy Clause
doesn’t prevent the government from trying him on both
charges in the same proceeding; it just precludes the court
from entering convictions on both counts, in the event he is
convicted of both at trial. See Ball v. United States, 470 U.S.
856, 860 & n.7 (1985); Ohio v. Johnson, 467 U.S. 493, 500
(1984). Since that hasn’t happened yet, by definition he has
no double jeopardy claim—colorable or otherwise.