holding that the district court’s action on motions in limine was appealable even though “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.”
How later courts described this case
- holding that the district court’s action on motions in limine was appealable even though “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.”
- declining to find pendent appellate jurisdiction over issues beyond scope of proper interlocutory appeal
- recognizing that section 3731 allows appeals of orders excluding evidence even though they are not final
- in insider trading case, district court abused discretion by excluding evidence of similar, uncharged trading by tippee that showed his “investment history and pattern of trading” in companies for which tipper had inside information and “exhibited uncanny timing”
Written by the judges who cited it.
The opinion
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, 105 S.Ct. 1668 , 84 L.Ed.2d 740 (1985); Ohio v. Johnson, 467 U.S. 493, 500 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984). Since that hasn’t happened yet, by definition he has no double jeopardy claim — colorable or otherwise.