United States v. Thurber
Opinion of the Court
MEMORANDUM
Jeffrey Leigh Thurber appeals an interlocutory order by the district court denying his motion to dismiss his federal indictment on double jeopardy grounds. We dismiss the appeal for lack of jurisdiction.
We review double jeopardy claims de novo. See United States v. Patterson, 292 F.3d 615, 622 (9th Cir. 2002). As a general rule, denials of pretrial motions are not final and appealable. We recognize an exception to this rule “in the case of a pretrial motion to dismiss based on a claim of double jeopardy.” United States v. Cejas, 817 F.2d 595, 596 (9th Cir. 1987) (citing Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)). This exception extends, however, only to colorable double jeopardy challenges. See United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005). A double jeopardy claim is colorable if it has “some possible validity.” United States v. Sarkisian, 197 F.3d 966, 983 (9th Cir. 1999) (citation omitted).
Under the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), double jeopardy is not implicated where “each [statutory] provision requires proof of an additional fact which the other does not.” Id. at 304, 52 S.Ct. 180. Here, the Nevada Supreme Court has held explicitly that NRS 201.560 requires that “a defendant’s intended victim must be less than 16 years of age.” State v. Colosimo, 142 P.3d 352, 359 (Nev. 2006) (internal quotation marks omitted). Conversely, the federal statute, 18 U.S.C. 2422(b), does not require that the intended victim actually be a minor. See United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004). Thus, NRS 201.560 contains an element that is not included in the offense prohibited by 18 U.S.C. 2422(b).
DISMISSED.
This disposition, is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Reference
- Full Case Name
- United States v. Jeffrey Leigh THURBER
- Status
- Published