F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellant
,

v

.

D O U G L A S V. D E C I

N C E S , Defendant-Appellee
,

D A V I D P A R K E R ; F

. S C O T T J A C K S O N ; R O G E R W I T T E

N B A C H ; J A M E S M A Z Z O , Defendants. N o. 15-50033

D.C. No. 8:12-cr-00269- A G-1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J A M E S V. M A Z Z O ,

Defendant-Appellant

. N o. 15-50058

D.C. No. 8:12-cr-00269- A G-5

OPI NI ON

A ppeal from the United States District Court for the Central District of California Andrew J . Guilford, District J udg e, PresidingU N I T E D S T A T E S V

. D E C I N C E S 2

Arg ued and Submitted September 1, 2015—Pasadena, California

F iled December 22, 2015

B e fore: Susan P. Graber, J ohnnie B . Rawlinson, and Paul J . W atford, Circuit J udg es.
Opinion by

J u dg e Rawlinson; Concurrence by J udg e W atford

SUMMARY *

Crim inal Law

T h e panel affirmed the d istrict court’s pretrial order
g ranting motions in limine
, and dismissed a cross-appeal for lack of jurisdiction, in a case in w hich Doug las DeCi n c e s, J ame s Maz z o, and others are charg e d with insider-trading offenses.

The panel held that it h as jurisdiction pur s u ant to 18 U. S

. C

. § 3731 to entertain the g overnment’s interlocutory appeal of the d i s trict court’s order g ranting DeCinces’s a nd Maz z o ’s motions in limine

. T he panel ex plained that the fact that the district court’s order was n ot final under 28 U.S.C. § 1291 does not bar the appeal under § 3 731, and that because the d istrict court g ranted the motions, it is immaterial that the district court described its ruling as tentative. The panel h eld

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. D E C I N C E S 3

that althoug h the ex c l u d e d evidence was “other acts” evidence within the meaning of F ed. R. Evid. 404(b), it was admissible thereunder t o show intent, plan, knowledg e, o r l a ck of mistake; and that taken as a whole, it was n o t categ orically

inadmissible under F ed. R. Evid. 403.

The panel dismissed f

or lack of jur i s diction Maz z o’s interlocutory cr o s s-appeal challeng ing the district court’s order deny ing his motion to dis m i s s t h e portion o f the indictment alleg ing securities fraud in violation of 18 U .S.C. § 1 3 48. T he pa n e l held that it h as n o pendent appellate jurisdiction because the eviden tiary issues raised b y the
g overnment’s appeal are larg e ly distinct from those concerning the scope and a pplication of § 1348 raised in Maz z o ’s appeal. The panel h eld 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 charg es that, reg ard l ess of h is double jeopardy claim, may

be tried – is r e v iewable on appeal from a final judg ment.

Concurring
, J udg e W a tford agr eed that the panel lacks jurisdiction over Maz z o’s cross-appeal under the collateral order doctrine. He wrote that Maz z o has no colorable claim under the D ouble J eopardy Clause, which just precludes the
court from entering convictions o n b oth the Rule 10b-5 a nd § 1348 counts in the event he is convicted of both at trial, a nd that hasn’t happened y

et.U N I T E D S T A T E S V

. D E C I N C E S 4

COUNSEL

Eileen M. Decker, Un i t ed States Attorney
, Robert E. Dug dale, Assistant United States A ttorney , Chief, Criminal Division, Stephen A

. Caz are s (arg ued), Assistant United States Attorney
, Deputy C hief, Major F rauds Section, Mark R. Yohalem (arg

ued), L awre n ce E. K ole, J ennifer L

. W aier, and I vy A. Wang
, Assistant United States A t t o r n ey s, L os A n ge l e s , C a l i f

o r n i a , f o r P l a i n t i f

f -A p p el l a n t / P l a i n t i f

f

Appellee.

Richard M armaro, Doug las A. Smith, Skadden, A rps, Slate Meag her & F lom L L P, L os Ang eles, California; Clifford M. Sloan (arg

ued), Michael A. McI

ntosh, Skadden, Arps, Slate, Meag her & F lom L L P, W ashing ton, D.C., for D efendantAppellee/Defendant-Appellant J ames Maz z o.

Kenneth B

. J ulian (arg

ued), A runabha B h o u

m i k
, A n d r e a Ruth B ird, a nd Garrett Mott, Manatt, Phelps, & Phillips, L L P, Costa Mesa, California, f or Defendant-Appellee D oug las DeCinces.

OP INION

RAW L I NSON, Circuit J udg e:

This case presents two appeals, one from the g overnment and o ne from Defendant-Appellant J ames Maz z o ( Maz z o). I n Appeal N o. 15-50033, the g overnment appeals the district court’s pretrial order g ranting motions in limine to e x c l u de certain p ieces of e vidence in a case in which D oug las DeCinces ( D e Cinces), Maz zo, and others are charg ed withU N I T E D S T A T E S V

. D E C I N C E S 5

i n s i d er-trading offenses relating to the stock of Advance d Medical Optics, I

nc.
Appeal No. 15- 5 0 058 is Maz z o’s cross-appeal

c halleng ing the district court’s order deny ing his motion t o dismiss a securities fraud charg e under 18 U.S.C. § 1348 for fai l ing to state an o ffense a nd for violating the D ouble J eopardy Clause. We conclude that we have jurisdiction over the g overnment’s interlocuto r y appeal, and we reverse the district court’s ruling on the m otions in limine

. W e conclude that we lack jurisdiction over Maz z o’s cross-ap p ea l
, which we dismiss.

I. BACK G ROUND

The g overnment’s orig inal indictment charg ed DeCinces, F

. Scott J ackson (J ackson), a n d other defendants, not including Maz z o, with insider trading and money laundering

. The g rand jury also returned a F irst Super seding I ndictment and a Second Supersedi n g I ndictment which became the operative charg ing document, and added M a z z o a s a defendant.

The Second Sup e r s e ding I ndictment alleg e d that Maz z o

a nd D eCinces participated in a scheme to defraud Maz z o’s comp an y , Advanced Medical Optics, I nc. (EYE), 1 and its shareholders. See id

. According to the Second Superseding I n d ictment, a s President, Chief Ex ecutive O f ficer, a nd Chairman of the Bo a r d o f Directors of EYE, Maz z o h ad

access to material, nonpublic information about EYE’s forthcoming merg er and acquisition a ctivities, which he

1 “ E Y E ” w a s t h e New Yo rk Sto ck Ex ch an g e tick er sy m b o l f or A d v an ced Med ical Op t ics, In c.U N I T E D S T A T E S V

. D E C I N C E S 6

shared with DeCinces in violation of a du t y of trust a nd confidence to EYE and for a personal benefit.

The Second S uperseding I ndictment alleg ed that, in December, 2006, based o n one o r more tips from Maz z o that EYE was preparing to acquire I ntraL ase, DeCinces sold all o f his shares in EYE a

n d purchased stock in I ntraL ase. After the public announcement o f the a c quisition, DeCinces sold his I ntraL a se stock, profiting approx imately $33,000.

The g overnment intimates, a lthoug h it d id not c harg e in
t he indictment, that Maz z o also tipped DeCinces in t h e

summer of 2007 about EYE’s attempt to acquire B ausch a nd L omb. The g o vernment a lleg es that D eCinces sold $250,000 of EYE stock and p u rchased B ausch and L omb stock mere hours before EYE publicly a nnounced t h at it had submitted a proposal to buy

B ausch and L o mb.

The Second Superseding

I ndictment also alleg e d that, in late 2 008 and early 2009, Maz z o tipped DeC i nces that EYE would b e acquired by Abbot L aboratories, and that DeCinces thereafter liquidated h is d iversified stock portfolio, invested the proceeds in EYE stock, and shared nonpublic information about the impending acquisition wi t h several other people,
urg ing them to purchase E YE stock. After the Abbott acquisition, DeCinces sold his shares of E YE stock, realiz ing a profit of approx imately

$1.3 million.

DeCinces moved to strike the I ntraL ase alleg a tions from the Second Superseding I ndictment as prejudicial surplusag e and a s time-barred. The di s t r i c t court denied the motion, ruling that “the [ 2006 and 2 0 07 I ntraL ase] alleg ations can show a common scheme, lack of mistake, or intent to defraud in the alleg ed 2008 and 2009 a ct i ons when viewing theU N I T E D S T A T E S V

. D E C I N C E S 7

contested alleg ations collectively and comparing them to the 2008 and 2 009 actions.” The court further ruled that “[ p] art

o f a section 1348 p rosecution includes proving a scheme t o defraud and k

n owing intent by the defendant to do the same. Among other thing s, the contested factual alleg ations appear to directly mirror meeting s and trades that took place in 2008 and 2009 and provide c onte x t for making this comparison.” According ly
, the d istrict court held that “Decinces has not shown the contested alleg ations are ‘irrelevant or immaterial to the charg e s.’”

Maz z o a n d D e C i nces subsequently filed motions in limine
to ex clude evidence involving the I ntraL ase and B ausch and L omb transactions as inadmissible “other acts” evidence under Rule 404(b) of the F ederal Rules of E vidence, and a s evidence that s hould be ex cluded under Rule 403. Specifically
, DeCinces and Maz z o asserted that a dmission o f the evidence would und u l y c onsume time and require additional mini-trials.

At a hearing on the m otions in limine the cou r t g ave its tentative ruling
, g ranting the mo t ions in limine to ex clude evi d e n c e reg arding the I ntraL ase and B ausch and L omb transactions. The court provided no e x planation of the ruling

. The minute order memorializ ing the ruling stated only : “GRANTS the m o t i on [to e x clude propensity /other act evidence] without p r e

judice to asking the Court outside the
presence o f the jury to consider permitting the introduction o f the evidence.”

The g overnment filed a timely notice of appeal, challeng ing the district court’s g rant of the motions in limine

. Maz z o filed a timely cross-appeal.U N I T E D S T A T E S V

. D E C I N C E S 8

II. STANDARDS OF REVIEW

W e have jurisdiction to determine our jurisdict i o n

. See Allen v. M

eyer , 755 F .3d 866, 867 ( 9th Cir. 2014). W e review this question de novo

. See United States v. W

. R. Grace
, 526 F .3d 4 9 9, 505 ( 9th Ci r

. 2 0 08) (en banc). W e review a district court’s ex clusion o f evidence f o r abuse o f discretion. See Servs. Emps. Int’l Union v. Nat’l Union of Healthcare W

orkers
, 718 F .3d 1036, 1050 (9th Cir. 2013), as amended

. A district court abuses its discretion when it makes

an error o f law or acts arbitrarily

. See Unite d States v

. Hinkson
, 585 F .3d 1 247, 1260 (9th Cir. 2009) (en banc); see also Tapley v. Locals 302 & 612 o f Int’l Union of O

perating E n gineers-Employers Const. Indus. Ret. Plan
, 7 28 F .3d 1 13 4
, 1139 (9th Cir. 2013).

III. DISCUSSION

A p p e a l N o . 1 5

- 5 0 033-G overnm ent’s Interlocutory Appeal of the D istrict Court’ s Order G r anting DeCinces’ a nd Mazzo’s Motions in Lim ine

A. W e h ave 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 State s shall lie to a court of appeals from a decis i o n o r order of a district court suppressing or ex cludi ng evidence

. . . not

ma d e a fter the d efendant has been p ut in jeopardy and before th e v erdict or finding on

an indictment or inform a t ion, if the UnitedU N I T E D S T A T E S V

. D E C I N C E S 9

States attorney certifies [ 2 ] t o the d istrict court t h a t the appeal is not taken for purpose o f delay and that the evidence is a s u bstantial proof of a fact material in the proceeding

. . . . (Emphasis Added). DeCinces and Maz z o arg ue that the district court’s ruling s were tentative and non f i nal, and that

we therefore lack jurisdiction to consider the g overnment’s appeal. W e disag r ee.

F irst, DeCinces arg ues that the district court’s evidentiary ruling was not a “final decisio n ” u n d e r 28 U.S.C. § 1291. Rely ing on our decision in United States v. D i o r , 6 7 1 F .2d 351 ( 9th Cir

. 1 9 8 2 )
, he contends that 18 U.S.C. § 3731 permits the g o vernment “to a ppeal only those orders that a re final decisions under” § 1 291. I d

. at 355 (footnote r e ference omitted). A lthoug h Dior appears t o have concluded that § 3731 did not replace the finality requirement of § 1291, we have since ex plicitly recog niz ed, in an e n banc decisi on, the
g overnment’s “rig ht to an interlocutory a ppeal from a district court’s evidentiary ruling s.” W .R. G r a c e , 526 F .3d at 505;

see also United States v. Chaudhry
, 6 3 0 F .3d 875, 878 (9th Cir

. 2011). (“[ D] espite 28 U.S.C. § 1291’s finality requirement, Section 3731 c an, and does, make it lawful for the g overnment to take c e rt ain appeals even thoug h there is no final judg ment. . . .”) (citations omitted).

B e caus e evidentiary r

uling s are by their very nature nonfinal, see Hoffman v. Constr. Protective S e rv s ., Inc.
, 541 F .3d 1175, 1178 ( 9th Cir

. 2 0 0 8 ), as a mended
, our recog nition in W

. R

. G r a c e , 5 26 F .3d at 505, of the

2 T h ere is n o co n t e n tio n th at th ere w as a d ef ect in th e certif

icatio n p ro v id ed b y

th e Un ited States A tto rn ey

.U N I T E D S T A T E S V

. D E C I N C E S 10

go v e r nment’s rig ht to appeal a nonfinal evidentiary rulin g

was a sub silentio reversal of the lang uag e in Dior eng rafting

a finality requirement onto § 3731. See H erzog v. United States
, 226 F .2d 561, 567-68 (9th Cir. 1 955) (concluding that

a sub silentio reversal h a s o c curred when two cases “cannot both be rig ht”). The fact that the district court’s o rd er was not final under § 1291 does not bar the g overnment’s interlocutory

appeal under § 3731.

Second, Maz z o ar gu e s that the district court’s order
g ranting the motions in lim i n e w as insufficiently final even within the scope of § 3731 because the distr i ct court described its ruling as tentative and made clear that the order

was “without p r ejudice to asking the Court

. . . to consider permitting the introduction of the e vidence” at trial. B ecause the district court granted

the m otions in limine
, however, its order was a pretria l “ o r der of a district court suppressing o r

ex c luding evidence” and therefore is describe d b y the plain
tex t of § 3 7 3 1

. The fact that the d istrict court described its ruling as tentative is immaterial, as pretrial evidentiary ruling s are g enerally tentative, in t h e sense that they a re subject to reconsideration at trial. I ndeed, we have ex pressly
recog niz ed that a pretrial order ex cluding evidence is subject
to appeal unde r § 3731 “even thoug h the ex clusion o f evidence in conditional.” United States v

. Hoffman
, 794 F .2d 1429, 1431 n.2 (9th Cir. 1986).

I n sum, we have jurisdiction to decide the g overnment’s interlocutory

appeal.U N I T E D S T A T E S V

. D E C I N C E S 11

B. The district cour t a bused its discretion when it granted the motions in limine e xcluding the IntraLase and Bausch and Lomb evidence.

As an initial matter, we note that the district court did not elucidate from the b ench o r in i t s subsequent order the reasoning behind it s gr ant of the motions in limine

. 3 I n particular, the district court did not i n d icate whether it was

ex c luding the evidence under Rule 403, Rule 404, or both. W e conclude that, althoug h th i s evidence was “ other acts” evidence within t h e m e a n ing of Rule 404(b), it was admissible under Rule 404(b) to s h o w intent, plan, knowledg e, or lack of mistake. W e also conclude that, taken

a s a whole, the evidence was not c ateg orically inadmissib l e under Rule 403.

W e consider first whether the evidence should have been

ex c luded under Rule 4 04. That rule provides in pertinent part:

1 ) Pr ohibited Uses

. Evidence of a crime
, wrong , or other act is not admissible to prove

a p erson’s charac t er in order to show that on

3 A f ter th e g o v ern m en t fi l ed th is ap p eal, th e d istrict co u rt p ro v i ded ad d itio n al reaso n s f

o r its ru lin g . T h e co u rt m ay h av e lack ed j u risd ictio n to d o so , see Un ited S ta tes v. Va len zu ela -Arisq u eta , 7 2 4 F.3 d 1 29 0
, 1 2 9 3

n .3 (9 th Cir. 2 0 1 3) (h o ld i n g th at th e d istrict co u rt lack ed j u ri s d i c t i on to p ro ceed to trial w

h ile an in terlo cu to ry ap p eal w as p en din g ), b u t t h at is a q u estio n th at w e n eed n o t d ecid e. Ev en if w e co n sid er th e d istrict co u rt’ s later ex p lan atio n s, th e co u rt erred to th e ex ten t th at it ex clu ded th e

ev id en ce o n Ru le 4 0 3 g ro u n d s. A s d iscu ssed b elo w in tex t, th e ev id en ce h a s stro n g p ro b ativ e v alu e, an d th e co u rt d id n o t id en t i fy a n y

co u n terv ailin g co n s i d eratio n s u f f icien t to s u

b stan tially o u tw eig h its
p ro b ativ e v alu e.U N I T E D S T A T E S V

. D E C I N C E S 12

a particular occasion the person acted in accordance with the character.

2) P erm itted Uses

. . . This evidence may be admissible for another p urpose, such a s p r o v i n g m o t i v e , o p p o r t u n i t y , i n t e n t , p r e p a r a t i o n , p l a n , k

now l e d ge , i d e n t i t y , absence of mistake, or lack of accident. . . .

F ed. R. Evid. 404(b).

At a minimum, evidence of the I n traL ase and B ausch a nd L omb transac t i o n s was admissible to prove intent, plan, knowledg e or a b s ence of mistake. See United States v

. Ramos-Atondo
, 7 32 F .3d 1113, 1122– 2 4 (9th Cir. 2013). I t appears that the district court a t one point recog niz ed the relevance of this very evidence. W hen DeCinces moved to strike the I ntraL ase alleg ations from t h e indictment, the district court denied the motion on the basis that the I ntraL ase alleg ations could “show a c o mmon scheme, lack of mistake, or intent to defraud.”

The ex cluded evidence re f lects DeCinces’ investment history and patter

n o f t rading
, prompting DeCinces’ securities broker to remark that DeCinces e x hibited uncanny timing in buy ing stocks of companies being acquired and selling stocks of comp a n i es doing the acquiring

. The securities broker “added that in his 20 y ears o f ex perience he never h ad a client buy a larg e p o s i t i on 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 ex cluded evidence sat isfies the other predicates for admissibility delineated in United States v. Bailey
, 696 F .3dU N I T E D S T A T E S V

. D E C I N C E S 13

7 9 4
, 799 (9th Cir. 2012). I n that c ase, we concluded tha t other act evidence is admissible if:

(1) the e v i d e nce tends to prove a material
p o int; (2) the o ther act is not too remote i n time; (3) the evidence is sufficient to support

a f indi n g that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charg ed.

Id. (citation omitted).

The I ntraL ase and B ausch a nd L omb evidence is material. As the district court recog niz ed, 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 y ear t i m e f rame from October, 2 006 to J anuary , 2009. The I ntra L a s e transactions occurred from December, 2006 to F ebruary
, 2007, and the B ausch and L omb tra nsactions w ere in J uly
, 2007, both within the timespan c overed by the i n d ictment. See United States v

. Lozano
, 623 F .3d 1055, 1059-60 (9th Cir. 2 010) (per curiam) (concluding

that three y ears was not too remote).

Third, the I ntraL ase a

n d B ausch and L o m b evidence is sufficient to support a determination that Maz z o a nd DeCinces eng ag e d in insider trading
, g iven Maz z o ’s access t o i n s i d e r i n f

o r m a t i o n a n d t h e t e m p o r a l a n d tipper/tippee/company connections. See, e.g. , Unite d 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).U N I T E D S T A T E S V

. D E C I N C E S 14

F inally
, these acts not only are similar, but are essentially the same as the charg ed conduct. H a v i ng met these predicates, the I ntraL ase and B ausch and L omb evidence was relevant and admissible under Rule 4 04(b). To the e x tent the district court concluded other w ise, it abused its discretion. See Tapley , 728 F

. 3d at 1139.

Nor was the evidence properly ex c luded under Rule 403. See United States v. Cruz-Garcia
, 3 44 F .3d 951, 956 ( 9th Cir. 2003). B ecause the district c o u rt conducted no b alancing under Rule 403, we review the ex clusion of evidence de n ovo

. See United States v. Moran
, 493 F. 3 d 1002, 1012 ( 9 th Cir. 2007), as amended

. The evidence i s h i g hly probative. A s discussed above, the evidence tends to support the
g overnm e n t ’ s alleg ations about the d efendants’ intent, plan, knowledg e, or lack of mistake. I n particular, the evidence tends to support the g o vernment’s a lleg ations that D eCinces’ and the other trading d efendants’ pu r c h a ses of EYE stock

were the product of a scheme to trade on nonpublic information obtained from EYE, not mere g ood lu c k

. The evidence is also relevant to show i n g the defendants’ respective roles in the alle ge d scheme. Althoug h the

a dmission o f the evidence may harm the defendants’ c a s e, that is not reason t o ex clude it under Rule 403, w hich refers only to unfair prejudice. See Unit e d S tates v

. Bowen
, 857 F .2d 1337, 1341 (9th Cir. 1988). S i m i larly
, the admission of any evidence will necessarily leng then the trial, but we cannot conclude that it would result in “ undue d elay ”

or “ wasting time,” in lig ht of the sig nificant probative value of this evidence. F ed. R. Evid. 403 (emphases added).

W e conclude t h at, taken as a whole, the I ntraL ase a nd B ausch and L omb evidence is admissibl e u n d er Rule 403. W e therefore reverse the distric t c o urt’s order g ranting theU N I T E D S T A T E S V

. D E C I N C E S 15

defendants’ motions to ex clude this e v idence. The district
court may im p o s e appropriate limits on the g overnment’s presentation o f this e v idence, s h o u ld developments at trial warrant doing

so.
Appeal No. 15-50058-Mazzo’s Inte r l o c u t ory Appeal of the District Court’s Denial of His Moti o n t o D ism iss the Indictm e nt.

A. W e lack p endent appellate jurisdiction over Mazzo’s interlocutory appeal.

Maz z o seeks to c halleng e the d istrict court’s o r der d e n y ing his motion to dismiss the portion of the indictme n t

a l leg ing securities fraud in violation of 18 U.S.C. § 1 3 4 8

. Maz z o first arg ues that w e have pendent a ppellate jurisdiction over this appeal.

W e have determined that pendent appellate jurisdiction is the

ex e rcise of jurisdiction o ver issues that

o r d i n a r i l y m a y n o t b e r e v i e w e d o n interlocutory appeal, but may be reviewed on in t e rlocutory appeal if raised in conjunction with o ther issues properly before the court a nd if the ruling s w ere inex tricably intertwined o r if r e v iew of the pendent issue was necessary t o e n s u r e m e an i n gf

u l r e v i ew o f t h e independently

reviewable issue. . . .

United S tates v. Tillman
, 7 56 F .3d 1144, 1149 ( 9th Cir. 2 014) (citation, alteration, and internal quotation marks omitted).U N I T E D S T A T E S V

. D E C I N C E S 16

B e cause Maz z o’s appeal of the denial of the motion to dismiss is not “inex tricably int e r t wined” w ith the
g overnment’s interlocutory a ppeal as envisioned in Tillman
, w e have no pendent jurisdiction over this issue. 4 I d

. Ex ercising pendent appellate jurisdiction is a rare event. See id

.

W e have emphasiz ed that what issues qualify a s inex t r i c ably intertwined should be interpreted “very narrowly .” Id

. I ndeed, 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 (citat i o n omitted). Rather, the issues must rely

on leg al theories that are “so intertwined that we must decide the p e ndent issue in order to review the claims properly raised

on interlocutory appeal,” or “ r esolution of the issue properly raised on interlocutory appeal [ must] necessarily resolve[ ] the pendent issue.” Id

. (citations omitted). N either circumstance i s p r e s e nted in this case, as the e v identiary issues raised b y the g overnment’s appeal are larg ely distinct fr o m t hose concerning the scope a

n d application of 18 U. S

. C. § 1348 raised in M a z z o ’s appeal. The common facts b etween Maz z o ’s appeal and the g overnment’s interl o c utory appeal, without more, do not confer pendent appellate jurisdiction. See id

.

4 B ecau se w e h eld t

h at Mazzo ’ s claim s d o n ot m eet th e req u irem en ts f or p en d en t ap p ellate j u risd ictio n , w e n eed n o t d ecid e w h eth er p e n d en t j u risd ictio n

ap p lies in

th e crim i n al co n tex t. Cf. Un ited S ta tes v. Ga rn er , 6 3 2 F .2 d 7 58
, 7 6 3 n .2 (9 t

h Cir. 1 98 0 ) (in terp retin g Ab n ey v. Un ited Sta tes , 4 3 1 U.S. 6 5 1 (1 9 7 7 ), as p reclu d in g th e ex ercise o f p en d en t ap p ellate j u risd ictio n o v er claim s b ro u g h t in co n j u n ctio n w ith a d o u

ble j eo p ard y claim ap pealab le u n d er t h e co llateral ord er d o ctrin e); Un ited S t a t e s v. Lo p ez-Lu kis
, 1 0 2 F.3 d 1 1 6 4
, 1 1 6 7 n .1 0 (1 1 th Cir. 1 9 9 7 ) (reco g n izin g p en d en t ap p ellate j u risd ictio n in th e crim in al co n tex t ).U N I T E D S T A T E S V

. D E C I N C E S 17

B. W e lack jurisdic t i on o ver Mazzo’s interlocutory appeal under the collateral order doctrine.

Second, Maz z o arg u es that we h ave jurisdiction under the

c o l lateral order doctrine, which permits appellate review o f

a “small class” of case s that “finally determine[ s] c laims o f rig ht separable f

ro m , a n d collateral to, r ig hts asserted in the action, too important to be d enied review and too independent of the cause itself to requir e that appellate consideration be deferred unt i l t h e whole case is adjudicated.” Cohen v

. Beneficial Indus. Loan Corp.
, 337 U.S. 541, 546 ( 1949). A s we have ex p lained, the collateral o rder doctrine applies only if: 1) the collateral order conclusively r e solved the disputed question; 2) review will resolve an important issue that i s completely separate from the merits of the action; a nd 3) the issue w ill essentially be u nreviewable on appeal from a final judg ment. See Tillman
, 756 F .3d at 1149.

Maz z o c ontends that he has asserted a “colorable” double jeopardy c laim, which renders this matter immediately reviewable under the collateral order doctrine. U nited States

v. Lewis
, 368 F

. 3d 1102, 1107 (9th Cir. 2004). Maz z o’s dou b l e j e o pardy claim is premised o n the theory that inclusion in t he indictment o f a charg e under 18 U .S.C. § 1 3 48 violated t h e D ouble J eopardy Clause of the F ifth Amendment. Maz z o arg ues, in p articular, that charg ing him with insider trading under both Rule 10b-5 (17 C

. F. R § 240.10b-5), and § 1348 was multiplicitous.

W e a ssume, for p u

r p o s e s of decision, that Maz z o’s double jeopardy claim is c olorable and that the first t w o prong s o f the coll ateral order doctrine are satisfied; nevertheless, his claim flounders on the third prong —reviewability

following judg ment. See Tillman
, 756 F .3d at 1149 (noting that theU N I T E D S T A T E S V

. D E C I N C E S 18

collateral order doctrine is inapplicable where a d irect appeal is available). Maz z o has not disp u t e d his entitlement to a d i r e ct appeal should he be c onvicted of violations of b o t h § 1 3 4 8 a n d Rule 10b-5. See id

. He arg ues, rather, th a t a direct a ppeal is insuffi cient b ecause the Double J eopardy Clause protects him ag a inst the trial itself. B ut that principle does no t a

pply when, as here, the issue is whether multiplicitous punishmen t w ould b e allowed for charg e s that—reg ardless of the double jeopardy c laim—may be tried. See U nited States v. Schales
, 5 46 F

. 3d 965, 978 (9th Cir. 20 0 8 ) (“The Double J eopardy Clause does not, of course, prohibit the g overnment f r om prosecuting a defendant for multiple offenses i n a sing le p rosecution.”) (citing Ohio v

. Johnson
, 467 U.S. 493, 5 00 (1984)). F or these reasons, Maz z o c annot establish jurisdiction under the collateral order doctrine.

B e cause we have neither pendent appellat e jurisdiction

nor collateral order jurisdiction, we m u s t dismiss Maz z o’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 throug h which appell ate jurisdiction is conferred in a criminal case when the g overnmen t s e e ks r eview of a pretrial ruling

. The district court’s order g ranting the motions in l i m i n e was sufficiently f

i n a l a s to be appealable under § 3731. Given that we have jurisdiction to entertain the g overnment’s appeal, we h old that the district c ourt a bused its discretion b y g ranting the motions in limine filed pursuant to Rule 404, a nd by ex cluding evidence of insider trading involving I ntraL ase and B ausch and L o mb.U N I T E D S T A T E S V

. D E C I N C E S 19

W e lack jurisdiction over Maz z o’s cross-appeal. There is neither pendent appellate jurisdiction nor jurisdic tion under the collateral order doctrine. Consequently
, Maz z o’s appeal must be dismissed.

N o . 15-50033-The district court’s grant of t h e def endants’ m otions in lim ine is REVERSED.

No. 15-50058-Mazzo’s appeal from the district court’s order denying hi s motion to dism iss is DISMISSED f or lack of jurisdiction.

W A TF ORD, Circuit J udg e, concurring :

I a g ree that we lack jurisdiction over Maz z o’s cros s

appeal under the collateral o rder doctrine. Maz z o may invoke the doctrine only if he has a “colorable” claim under t h e Double J eopardy Clause. United States v. A lvarez-More n o , 657 F .3d 8 96, 899 (9th Cir. 2011). H e has no such claim—at least not rig ht now. He contends only that the Rule 10b-5 a nd 1 8 U.S.C. § 1348 counts are multiplicitous. Even if true (something we need not decide), the Double J eopardy Clause doesn’t prevent the g overnment from try ing him on b oth charg es in the same proceeding ; it j u s t p recludes the court from entering convicti o n s o n both c ounts, in the event he is convicted of both at trial. See Ball v. United States
, 470 U.S. 856, 8 6 0 & n.7 (1985); Ohio v. Johnson
, 467 U .S. 493, 500 (1984). Since that hasn’t happened y et, by definition he has no double jeopardy

claim—colorable or otherwise.