Sunday, January 10, 2016

Case o' The Week: DeCines strikes out in the Ninth - Interlocutory Government and Defense Appeals

  The Ninth -- on instant replay -- reverses ump’s tentative call.    
  United States v. DeCines, 2015 WL 9286645 (9th Cir. Dec. 22, 2015), decision available here.

Players: Decision by Judge Rawlinson, joined by Judge Graber. Concurrence by Judge Watford.

Facts: Baseball star Douglas DeCines, Mazzo and others were charged with insider trading. They moved in limine to exclude evidence regarding stock transactions as inadmissible “other acts” evidence under FRE 404(b). Id. at *2.

The court made a tentative ruling, granting the motions to exclude. Id. Specifically, the order stated: “GRANTS the motion [to exclude propensity / other acts evidence] without prejudice to asking the Court outside the presence of the jury to consider permitting the introduction of evidence.” Id.

The government brought an interlocutory appeal; Mazzo cross-appealed. Id.  

Issue(s): Under 18 U.S.C. § 3731, the Ninth has jurisdiction to consider the government’s interlocutory appeal in a criminal case “from a decision or order of a district court suppressing or excluding evidence.” Id. at *3 (quotation omitted) (emphasis added). “DeCinces and Mazzo argue that that the district court’s rulings were tentative and nonfinal, and that we therefore lack jurisdiction to consider the government’s appeal.” Id. at *3.

Held: “We disagree.” Id.Because evidentiary rulings are by their very nature nonfinal, . . . our recognition in W.R. Grace, 526 F.3d at 505, of the 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. . . .  The fact that the district court's order was not final under § 1291 does not bar the government's interlocutory appeal under § 3731.” Id. at *3 (quotations and internal citations omitted).

Of Note: There’s “final” and there’s “final.” Even if there isn’t a finality requirement for an interlocutory appeal, the “order” here was just a “tentativein limine ruling “without prejudice” to revisiting the decision as the trial developed. From this, the gov’t can take an interlocutory appeal?


“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 a 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 is conditional.” Id. at *3 (quotation and citations omitted).

How to Use: DeCines is a two-fer, on interlocutory appeals. Co-D Mazzo cross-appealed, arguing a claim from the same facts. Id. at *6. Mazzo invoked a theory called “pendent jurisdiction” – permitting interlocutory appeal of a defense claim that is “inextricably interwined” with an issue properly before the Court of Appeals (here, the government’s appeal of the tentative evidentiary order.) Id. at *6. His claim fell on deaf ears, however: “The common facts between Mazzo’s appeal and government’s appeal, without more, do not confer pendent appellate jurisdiction.” Id. at *6.

Though there’s no good news in DeCines, the opinion is worth a read when considering the (frustratingly asymmetrical) law of interlocutory appeals for the government and the defense.
For Further Reading: What a Friday, the 8th was! The Supremes granted cert. in Welch, and will decide whether its crime of violence decision in Johnson is retroactive (spoiler alert: the government and defense both think it should be). See SCOTUS blog here 

Also on Friday, the Sentencing Commission adopted a welcome amendment to the “Crime of Violence” definition in USSG § 4B1.2. See amendment here. Note that “burglary of a dwelling” is now out of the list of enumerated crime of violence offenses. 

The amendment will become effective effective in August 2016, but if you have a Career Offender or gun case (§ 2K2.1) with a burglary prior, argue variances or departures using the definition now (or start brainstorming Speedy Trial exclusions to stretch out to a summer sentencing).

(And while enjoying the amendment, also take a close look at the new “California wobbler” departure for Career Offenders, at page 6).

Steven Kalar, Federal Public Defender, N.D. Cal. Website at

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