United States v. DeCinces, No. 15-50033 (9th Cir. 2015)
Annotate this CaseIn Appeal No. 15-50033, the government challenged the district court’s pretrial order granting motions in limine to exclude certain pieces of evidence in a case in which Defendant DeCinces, Mazzo, and others are charged with insider-trading offenses relating to the stock of Advanced Medical Optics. In Appeal No. 15-50058, Mazzo challenged 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. In regard to Appeal No. 15-50033, the court concluded that it has jurisdiction under 18 U.S.C. 3731 to entertain the government's interlocutory appeal where the district court's order granting the motions in limine was sufficiently final, and the district court abused its discretion when it granted the motions in limine excluding the IntraLase and Bausch and Lomb evidence. In regard to Appeal No. 15-50058, the court concluded that it lacked pendant appellate jurisdiction over Mazzo's interlocutory appeal, and the court lacked jurisdiction over Mazzo's interlocutory appeal under the collateral order doctrine. Accordingly, the court reversed the grant of defendants' motions in limine in Appeal No. 15-50033 and dismissed Appeal No. 15-50058.
Court Description: 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 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
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