                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 07-10424
                Plaintiff-Appellee,
               v.                                   D.C. No.
                                                 CR-05-00334-SBA
LAL BHATIA,
                                                    OPINION
             Defendant-Appellant.
                                            
        Appeal from the United States District Court
           for the Northern District of California
       Saundra B. Armstrong, District Judge, Presiding

                    Argued and Submitted
          August 12, 2008—San Francisco, California

                     Filed September 24, 2008

 Before: Eugene E. Siler, Jr.,* M. Margaret McKeown, and
          Consuelo M. Callahan, Circuit Judges.

                   Opinion by Judge McKeown




   *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

                                 13613
                   UNITED STATES v. BHATIA               13615


                         COUNSEL

Stanley G. Hilton, Esq., Law Offices of Stanley G. Hilton,
San Francisco, California, for the defendant-appellant.

Joseph P. Russoniello, United States Attorney, Barbara J. Val-
liere, Chief, Appellate Section, Stephen G. Corrigan, Assis-
tant United States Attorney, Oakland, California, for the
plaintiff-appellee.


                         OPINION

McKEOWN, Circuit Judge:

   The issue we consider is whether there was privity between
the government and a third party in a civil fraud action suffi-
cient to bar a subsequent criminal prosecution of Lal Bhatia
for wire fraud and money laundering. Bhatia argues that
because the government took the “laboring oar” in the civil
13616               UNITED STATES v. BHATIA
action, there was sufficient privity for application of res judi-
cata and collateral estoppel. The facts do not support such a
claim. Instead, Bhatia’s argument is a variation on the “virtual
representation” theory recently rejected by the Supreme Court
in Taylor v. Sturgell, 128 S.Ct. 2161 (2008). Because his
claims of res judicata and collateral estoppel are not colorable,
we dismiss this interlocutory appeal for lack of jurisdiction.

                         BACKGROUND

   In 2004, Bhatia was one of several defendants sued in fed-
eral court in Texas. The plaintiff was an entity named Inderra
Houston, L.P. (“Inderra”), which was formed to build a real
estate project in Houston, Texas. Its principals, Ralph Aber-
cia, Sr. and Ralph Abercia, Jr., sought sources of financing for
the project and eventually met with representatives of Wolfe
& Turner and Sherwin & Noble, including Bhatia. Bhatia was
in charge of both entities, and represented that Sherwin &
Noble could fund a $105 million loan upon Inderra’s payment
of a $1.575 million loan commitment fee. Although the Aber-
cias agreed, and paid the fee, Inderra never received the loan
proceeds. It then filed suit against Bhatia and eight other
defendants for fraud, negligence, and breach of fiduciary
duty. In the midst of discovery, Inderra filed a motion for vol-
untary dismissal of the action. The court eventually dismissed
Bhatia and his co-defendants with prejudice.

   While the civil proceeding was pending, the government
filed a criminal complaint against Bhatia and three other indi-
viduals allegedly involved in the Inderra transaction. They
were ultimately indicted in federal court in California on three
counts of wire fraud, 18 U.S.C. § 1343, and four counts of
money laundering, 18 U.S.C. § 1957(a). Bhatia moved to dis-
miss the criminal indictment on grounds of collateral estoppel
and res judicata, and the district court denied the motion.
After Bhatia filed his notice of appeal, the government
requested that Bhatia’s claims of res judicata and collateral
estoppel be found not colorable, so as to preclude appellate
                       UNITED STATES v. BHATIA                       13617
jurisdiction. The district court denied the government’s
request.

                              ANALYSIS

   [1] Generally, denials of pre-trial motions are not consid-
ered final, appealable judgments, but we do have jurisdiction
where a “colorable” claim of double jeopardy is raised.1 See
Richardson v. United States, 468 U.S. 317, 322 (1984);
United States v. Cejas, 817 F.2d 595, 596 (9th Cir. 1987). To
be colorable, Bhatia’s claims of res judicata and collateral
estoppel must have “ ‘some possible validity.’ ” United States
v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005) (per curiam)
(quoting United States v. Sarkisian, 197 F.3d 966, 983 (9th
Cir. 1999)).

   [2] Res judicata, or claim preclusion,2 “provides that ‘a
final judgment on the merits bars further claims by parties or
their privies based on the same cause of action.’ ” United
States v. Schimmels (In re Schimmels), 127 F.3d 875, 881 (9th
Cir. 1997) (quoting Montana v. United States, 440 U.S. 147,
153 (1979)). The related doctrine of collateral estoppel, or
issue preclusion, provides that “when an issue of ultimate fact
has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in
any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443
(1970). Both doctrines apply to criminal and civil proceed-
ings, Cejas, 817 F.2d at 598, and both require privity between
the parties. See In re Schimmels, 127 F.3d at 881 (noting that,
under res judicata, “parties or their privies” may be bound by
  1
     We review de novo the denial of a motion to dismiss on double jeop-
ardy grounds. United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002).
   2
     The Supreme Court recently clarified that the terms “claim preclusion”
and “issue preclusion” are collectively referred to as “res judicata.” Tay-
lor, 128 S.Ct. at 2171. The record and briefs reflect that the district court
and the parties used the term “res judicata” to mean “claim preclusion,”
and “collateral estoppel” to mean “issue preclusion.”
13618              UNITED STATES v. BHATIA
a prior judgment); United States v. ITT Rayonier, Inc., 627
F.2d 996, 1000 (9th Cir. 1980) (requiring identity or privity
between parties for collateral estoppel to apply).

   [3] Bhatia grounds his privity argument on the notion that
the government “assisted [Inderra] by procuring evidence and
interviewing witnesses” during the civil action. Privity “is a
legal conclusion ‘designating a person so identified in interest
with a party to former litigation that he represents precisely
the same right in respect to the subject matter involved.’ ” In
re Schimmels, 127 F.3d at 881 (quoting Sw. Airlines Co. v.
Tex. Int’l Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). The
federal courts “have deemed several relationships ‘sufficiently
close’ to justify a finding of ‘privity’ and, therefore, preclu-
sion under the doctrine of res judicata.” Id. (quoting Sw. Air-
lines, 546 F.2d at 95). The Supreme Court recently referenced
a relationship justifying a finding of privity where a nonparty
“ ‘assume[d] control’ over the litigation in which that judg-
ment was rendered.” Taylor, 128 S.Ct. at 2173 (quoting Mon-
tana, 440 U.S. at 154); see also In re Schimmels, 127 F.3d at
881 (noting that a “non-party who controlled the original suit
will be bound by the resulting judgment”) (quoting Sw. Air-
lines, 546 F.2d at 95).

   [4] To determine whether a nonparty “assumed control
over” a previous action so as to be bound by its judgment, a
court must evaluate whether the “relationship between the
nonparty and a party was such that the nonparty had the same
practical opportunity to control the course of the proceed-
ings.” 18A Charles Alan Wright, Arthur R. Miller & Edward
H. Cooper, FED. PRAC. & PROC. § 4451, p. 373 (2d ed. 2002).
In Montana, 440 U.S. 147, the Supreme Court concluded that
privity between the government and the civil plaintiff in a
prior action barred the government’s subsequent suit. A pri-
vate contractor disputed in state court the constitutionality of
a Montana gross receipts tax, alleging that the tax discrimi-
nated against the federal government and private companies.
The government later raised the same challenge—the consti-
                       UNITED STATES v. BHATIA                     13619
tutionality of the gross receipts tax—in federal court. Id. at
151-53.

   The Supreme Court reasoned that the later action by the
United States was barred because the government was in priv-
ity with the private contractor in the state court suit. The gov-
ernment stipulated that, in the state action, it had: required the
contractor’s lawsuit to be filed; reviewed and approved its
complaint; paid its attorneys’ fees and costs; directed the
appeal from the state trial court to the Supreme Court;
appeared before and submitted an amicus brief in the Mon-
tana Supreme Court; directed the filing of a notice of appeal
to the Supreme Court; and “effectuated” the company’s aban-
donment of that appeal. Id. at 155. These circumstances dem-
onstrated that “the United States plainly had a sufficient
‘laboring oar’ in the conduct of the state-court litigation to
actuate principles of estoppel.” Id. Central to the Court’s
holding in Montana was the notion that “[b]ecause such a
[third party] has had the ‘opportunity to present proofs and
argument,’ he has already ‘had his day in court’ even though
he was not a formal party to the litigation.” Taylor, 128 S.Ct.
at 2173 (quoting Restatement 2d of Judgments § 39, Com-
ment a, p. 302).

   [5] The facts alleged by Bhatia3 in support of his privity
argument come nowhere close to establishing privity between
the government and Inderra. To be sure, the FBI was involved
in a parallel criminal investigation of Bhatia while the civil
suit was ongoing, but nothing in the record supports the claim
that the government controlled or influenced the civil litiga-
tion, or took the “laboring oar.” See Headwaters Inc. v. U.S.
  3
    The government contends that some of the facts alleged by Bhatia to
establish privity were not before the district court, namely, that the FBI
informed witnesses of the government’s theory, located witnesses, induced
them to speak, and gathered discovery. Bhatia mentioned several of these
instances in his motion to dismiss, although phrased differently, and thus
we consider that evidence as part of the record on review.
13620                  UNITED STATES v. BHATIA
Forest Serv., 399 F.3d 1047, 1054 (9th Cir. 2005) (holding
that “parallel legal interests alone, identical or otherwise, are
not sufficient to establish privity”). Inderra’s objective was
understandably self-interested—to obtain repayment of the
$1.575 million loan fee. In contrast, the government’s objec-
tive was pursuit of a separate criminal prosecution. Unlike the
government’s actions in Montana, the FBI did not direct or
review Inderra’s filings, had no “opportunity to present proofs
and argument,” and did nothing to influence or affect Inder-
ra’s litigation strategy.

   [6] That fruits of the FBI’s criminal investigation may have
aided Inderra during its action does not rise to the level of a
mutuality of interests necessary to preclude a subsequent
criminal prosecution. Cooperation is not the same as control.
Were we to adopt Bhatia’s theory of privity, it would chill
cooperation in parallel civil and criminal proceedings and
impede the government’s ordinary investigations in a criminal
case. To invoke “control” as the basis for privity requires
something beyond the cooperation and sharing of witness
interviews that Bhatia presents here. At most, as the district
court noted, “the only connection that exists between the par-
ties of both cases can be found in periodic discussions
between Inderra officials and Government agents.”

   [7] Because there was no privity between the government
and Inderra, Bhatia’s res judicata and estoppel claims are
doomed from the start. Given the stark contrast between the
circumstances in Montana, and those presented here, his
claims had no “possible validity.” Zone, 403 F.3d at 1104. We
therefore dismiss his appeal for lack of jurisdiction.4

  DISMISSED.
  4
   For the same reason, we dismiss Bhatia’s claim that the district court
abused its discretion in not granting an evidentiary hearing on his motion
to dismiss.
