                                                                              FILED
                           NOT FOR PUBLICATION                                APR 22 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10016

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00349-KJD-
                                                 PAL-1
  v.

VICTOR BUSTOS,                                   MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                            Submitted April 12, 2011**
                             San Francisco, California

Before: GOODWIN and N.R. SMITH, Circuit Judges, and COLLINS, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, Tucson, sitting by designation.
      Victor Bustos is currently under indictment for theft of government property

in violation of 18 U.S.C. § 641 and failure to disclose to the Social Security

Administration (“SSA”) an event affecting his right to payment in violation of 42

U.S.C. § 408(a)(4). In this interlocutory appeal, Bustos challenges the district court’s

denial of his request for an evidentiary hearing regarding his motion to dismiss the

criminal indictment. For the reasons that follow, we dismiss for lack of appellate

jurisdiction. Because the parties are familiar with the facts and procedural history of

the case, we do not recite them here except as necessary to our decision.

      Bustos asserts that this court has jurisdiction under 28 U.S.C. § 1291, which

allows for appellate review of “all final decisions of the district courts.” Under §

1291, “criminal cases generally are not subject to appellate review ‘until after

conviction and sentence.’” United States v. Lewis, 368 F.3d 1102, 1104 (9th Cir.

2004) (quoting Flanagan v. United States, 465 U.S. 259, 263 (1984)).

      “Under the collateral order doctrine, however, we have authority to review a

‘narrow class of decisions that do not terminate the litigation, but must, in the interest

of achieving a healthy legal system, nonetheless be treated as final.’” United States

v. Steel, 626 F.3d 1028, 1030 (9th Cir. 2010) (quoting Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 867 (1994)).         We have jurisdiction to review an

interlocutory appeal of a district court’s denial of a motion to dismiss an indictment


                                            2
on the basis of a colorable claim to double jeopardy or collateral estoppel. See United

States v. Bhatia, 545 F.3d 757, 759 (9th Cir. 2008); United States v. Cejas, 817 F.2d

595, 596 (9th Cir. 1987). This is not such an appeal.

      While the motion to dismiss was based on a claim of collateral estoppel, Bustos

specifically appeals only the district court’s denial of his request for an evidentiary

hearing. A district court’s denial of a request for an evidentiary hearing is not a final

appealable order. See United States v. Austin, 416 F.3d 1016, 1022–23 (9th Cir. 2005)

(“In this Circuit, we have interpreted Supreme Court precedent as limiting review of

interlocutory appeals in criminal cases ‘to instances . . . where there are statutory or

constitutional guarantees against the defendants standing trial.’”) (quoting United

States v. Hickey, 367 F.3d 888, 896 (9th Cir. 2004)); United States v. Storey, 2 F.3d

1037, 1042 (10th Cir. 1993) (“Appellants also filed an interlocutory appeal from the

district court’s refusal to hold an evidentiary hearing. The district court’s decision

was not a final judgment and is not presently appealable.”). Accordingly, we do not

have jurisdiction to review the denial of Bustos’s request for an evidentiary hearing

on its own.

      Assuming arrguendo that Bustos was appealing the denial of his motion to

dismiss, we would still lack appellate jurisdiction because Bustos fails to assert a

colorable claim to collateral estoppel. See Steel, 626 F.3d at 1030. There is nothing


                                           3
in the record that suggests the SSA ever acted in a “judicial capacity” or resolved

“disputed issues of fact” when it determined Bustos was still eligible for disability

benefits based on the report he submitted. University of Tennessee v. Elliott, 478 U.S.

788, 797–98 (1986). To the contrary, the SSA presumed the truthfulness of the

assertions made by Bustos. Further, there is no indication that the United States had

an “adequate opportunity to litigate” the validity of Bustos’s claim to benefits during

this determination. Id.; see also 20 C.F.R. 404.900(b) (noting that in making a

determination regarding a claimant’s continued eligibility to benefits, the SSA

“conduct[s] the administrative review process in an informal, nonadversary manner”).

      Finally, Bustos has not shown that an evidentiary hearing would have allowed

him to show that he had a colorable claim of collateral estoppel. See United States v.

Howell, 231 F.3d 615, 620 (9th Cir. 2000). Bustos argues the record is unclear

whether an SSA agent spoke to him or whether he returned the paperwork by mail or

in person. However, neither issue is material to whether Bustos’s eligibility for

benefits was litigated.

      DISMISSED.




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