Argued and Submitted December 8, 2006.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 27, 2006.
Ronald C. Rachow, Esq., USRE — Office of the U.S. Attorney, Reno, NV, Robert L. Ellman, Esq., USLV — Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Fred H. Atcheson, Esq., Reno, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Brian E. Sandoval, District Judge, Presiding. D.C. No. CR-05-00080-BES/RAM.
Before: T.G. NELSON, GOULD, and CALLAHAN, Circuit Judges.
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).
Also, the federal prohibition of transportation for illegal sexual activity and related crimes, as set forth in 18 U.S.C. 2422(b), undoubtedly contains an element that NRS 201.560 does not contain — that a defendant use "the mail or any facility or means of interstate . . . commerce" to knowingly lure or attempt to lure a minor for sexual activity. 18 U.S.C. 2422(b); see also United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (concluding that "the Travel Act has an interstate travel element that [18 U.S.C] section 1510 does not"). NRS 201.560 does not contain an interstate commerce element. We conclude that under the Supreme Court's Blockburger test, the state and federal offenses here involved are separate offenses for double jeopardy purposes. Accordingly, no colorable double jeopardy claim is presented.