Case o' The Week: DeCines strikes out in the Ninth - Interlocutory Government and Defense Appeals
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 “tentative” in limine ruling “without prejudice” to revisiting the decision as
the trial developed. From this, the
gov’t can take an interlocutory appeal?
Yep.
“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).
Image
of Doug DeCinces from http://www.openingdaymemories.com/doug_decinces/
Steven
Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org
Labels: Insider Trading, Interlocutory Appeals, Pendent Jurisdiction, Rawlinson, Section 3731, Securities Fraud
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