United States v. Douglas Decinces

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. § 3731

permits 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. § 1348

raised 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.