United States v. Douglas Decinces
808 F.3d 785
9th Cir.2015Background
- Defendants James Mazzo and Douglas DeCinces were indicted for insider trading related to Advanced Medical Optics (EYE); alleged tips concerned acquisitions (IntraLase, Bausch & Lomb, Abbott) and resulting trades/profits.
- The Second Superseding Indictment covered transactions from 2006–2009 and alleged a scheme in which Mazzo (EYE CEO) tipped DeCinces, who traded and profited.
- DeCinces moved to strike older IntraLase allegations as prejudicial/time-barred; the district court denied that motion but later granted motions in limine to exclude evidence of the IntraLase and Bausch & Lomb transactions without explaining its basis.
- The government filed an interlocutory appeal under 18 U.S.C. § 3731 challenging the exclusion; Mazzo cross-appealed the denial of his motion to dismiss a § 1348 securities-fraud count as multiplicitous/double jeopardy.
- The Ninth Circuit considered (1) whether it had jurisdiction over the government’s interlocutory appeal and (2) whether Mazzo’s cross-appeal was reviewable interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3731 permits government interlocutory appeal of the pretrial exclusion | Government: § 3731 allows appeal of pretrial orders excluding evidence; certification provided | Defs: ruling was tentative/nonfinal and thus not appealable | Court: § 3731 authorizes the appeal; tentativeness irrelevant; jurisdiction exists |
| Admissibility under Fed. R. Evid. 404(b) of prior IntraLase and Bausch & Lomb acts | Government: prior acts show intent, plan, knowledge, lack of mistake — admissible non-propensity purposes | Defs: prior acts are other-act evidence and should be excluded as propensity or prejudicial | Court: Evidence qualifies as other-act but is admissible under 404(b) to show intent/plan/absence of mistake; exclusion was abuse of discretion |
| Exclusion under Fed. R. Evid. 403 (unfair prejudice, undue delay) | Government: probative value is high; not substantially outweighed by unfair prejudice or undue delay | Defs: admission would unduly consume time and create mini-trials; unfairly prejudicial | Court: District court did not perform Rule 403 balancing; probative value is strong and not substantially outweighed by prejudice; exclusion improper |
| Jurisdiction over Mazzo’s cross-appeal (double jeopardy / multiplicity of § 1348 vs. Rule 10b-5) | Mazzo: inclusion of § 1348 is multiplicitous and gives colorable double jeopardy claim meriting interlocutory review | Government: any multiplicity remedy is available after trial on direct appeal; double jeopardy not triggered pretrial here | Court: No pendent or collateral-order jurisdiction; cross-appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Allen v. Meyer, 755 F.3d 866 (9th Cir. 2014) (we have jurisdiction to decide jurisdictional questions)
- W.R. Grace Co. v. United States, 526 F.3d 499 (9th Cir. 2008) (recognizing government’s right to interlocutory appeals of evidentiary rulings under § 3731)
- United States v. Dior, 671 F.2d 351 (9th Cir. 1982) (prior discussion of finality requirement in appeals under § 3731)
- United States v. Bailey, 696 F.3d 794 (9th Cir. 2012) (four-part test for admissibility of other-act evidence)
- United States v. Ramos-Atondo, 732 F.3d 1113 (9th Cir. 2013) (404(b) relevance for intent/plan/absence of mistake)
- United States v. Tillman, 756 F.3d 1144 (9th Cir. 2014) (limits on pendent appellate jurisdiction)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (collateral-order doctrine standards)
- United States v. Salman, 792 F.3d 1087 (9th Cir. 2015) (sustaining insider-trading conviction where tipper and tippee benefitted)
- United States v. Schales, 546 F.3d 965 (9th Cir. 2008) (double jeopardy does not bar prosecution of multiple offenses in a single proceeding)