United States v. Schemenauer ( 2005 )


Menu:
  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                   No. 04-50256
    Plaintiff-Appellee,
    v.                            D.C. No.
    CR-03-02521-MLH
    LOUISE IRENE SCHEMENAUER,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Southern District of California
    Marilyn L. Huff, District Judge, Presiding
    Argued and Submitted
    December 7, 2004—Pasadena, California
    Filed January 12, 2005
    Before: Procter Hug, Jr., Harry Pregerson, and
    Marsha S. Berzon, Circuit Judges.
    Opinion by Judge Berzon
    483
    UNITED STATES v. SCHEMENAUER                485
    COUNSEL
    Angela M. Krueger and Victor J. Brunkow, Federal Defend-
    ers of San Diego, Inc., San Diego, California, for the
    defendant-appellant.
    Carla J. Bressler, Assistant United States Attorney, Southern
    District of California, San Diego, California, for the plaintiff-
    appellee.
    OPINION
    BERZON, Circuit Judge:
    Defendant-Appellant Louise Schemenauer takes this inter-
    locutory appeal from the district court’s denial of her motion
    to dismiss after the jury hung at the end of her first trial. She
    argues that the district court erred in denying the motion
    because she was entitled to a judgment of acquittal under FED.
    R. CRIM. P. 29(a) (“Rule 29”), and that a second trial on
    charges that she brought illegal aliens into the United States
    for financial gain and without presentation would therefore
    violate her rights under the Double Jeopardy Clause. We dis-
    miss this interlocutory appeal for want of appellate jurisdic-
    tion. We also decline to issue a writ of mandamus.
    I.
    Early in the afternoon of August 28, 2003, Louise Sche-
    menauer attempted to re-enter the United States from Mexico
    at the San Ysidro, California, Port of Entry. Ms. Schemenauer
    was driving a 1993 Ford F-150 truck, and appeared to be the
    486             UNITED STATES v. SCHEMENAUER
    sole occupant of the vehicle. The truck had a camper shell
    affixed to the bed, and did not display any license plates.
    Customs and Border Protection Inspector Darrell Watson
    questioned Schemenauer at the border. She informed him that
    she had nothing to declare, and that she was returning from
    visiting friends in Mexico. Schemenauer told Watson that the
    truck belonged to her and that she had purchased it approxi-
    mately one month earlier.
    While briefly inspecting the truck, Inspector Watson
    observed a “new” speaker box in the rear area of the truck and
    noticed what he called a “space discrepancy” between the
    wall of the truck and the speaker box. He then referred the
    truck to secondary inspection. An X-ray of the truck identified
    what the Senior Immigration Inspector Knox believed to be a
    hidden person inside the speaker box. Knox then entered the
    camper shell area — which he found to be very hot — in an
    attempt to open the box. After several attempts, he was finally
    able to gain access to the compartment inside the speaker box,
    where he discovered Maria Ramirez Mejia, a Mexican
    national, hiding. Mejia was in poor condition when Knox
    found her, due to the excessive heat and lack of ventilation in
    the speaker box. After recovering, Mejia told inspectors that
    she had never seen Schemenauer before they were discovered
    at the Port of Entry, and that she understood that $3,000 was
    to be paid to the smugglers on her behalf once she success-
    fully crossed the border.
    Schemenauer was subsequently advised of her Miranda
    rights and made a statement to Inspector Knox maintaining
    that she had no knowledge that there was a woman hidden
    within the vehicle. Schemenauer claimed that she had the
    speaker box and the bench seats in the rear of the truck
    installed in Tijuana by an acquaintance of her friend Teresa
    Garcia-Ahumada; she paid the acquaintance approximately
    $400. Schemenauer admitted that both she and Garcia-
    Ahumada had previously been arrested for attempting to
    UNITED STATES v. SCHEMENAUER                487
    smuggle illegal aliens into the United States, and that she had
    received over $12,000 in connection with the earlier attempts.
    On September 3, 2003, a two-count indictment was filed
    against Schemenauer in the U.S. District Court for the South-
    ern District of California. Schemenauer was charged with
    bringing in illegal aliens for financial gain, in violation of 8
    U.S.C. § 1324(a)(2)(B)(ii), and with bringing in illegal aliens
    without presentation, in violation of 8 U.S.C. § 1324(a)(2)
    (B)(iii).
    The jury trial began on March 16, 2004, and lasted four
    days. At the close of the government’s case on March 17, the
    defense moved for a judgment of acquittal under Rule 29,
    which the court took under submission. On March 19, the
    jury, through a note, informed the court that the vote was
    eleven to one to convict, but that the lone juror not voting to
    convict was adamant and showed no signs of changing his
    mind.
    Finding the jury hopelessly deadlocked, the district court
    granted the defense’s motion for a new trial and set the new
    trial date for May 25, 2004. The defense subsequently moved
    to dismiss the indictment on the ground that retrial would vio-
    late Schemenauer’s double jeopardy rights. The court denied
    the motion to dismiss, ruling that Schemenauer was not enti-
    tled to a judgment of acquittal under Rule 29 (denying the
    then-outstanding Rule 29 motion), and that a retrial would
    therefore not violate the Double Jeopardy Clause. From this
    ruling Schemenauer timely appeals.
    II.
    [1] The appellate jurisdictional issue in this case is con-
    trolled by Richardson v. United States, 
    468 U.S. 317
    (1984),
    a case presenting, as here pertinent, facts indistinguishable
    from those in this case. In Richardson, the defendant had
    sought a judgment of acquittal at the close of the prosecu-
    488              UNITED STATES v. SCHEMENAUER
    tion’s case-in-chief and again before submission of the case
    to the jury. Both times, the motion was denied. The jury sub-
    sequently deadlocked on all but one of the charges against
    him, and the district court issued an order providing for a new
    trial on those counts. 
    Id. at 318-19.
    [2] The Supreme Court held that it had jurisdiction to con-
    sider Richardson’s claim that such an order violated his dou-
    ble jeopardy rights, holding that the claim was at least
    “colorable,” and that the government’s policy arguments to
    the contrary were ultimately unavailing. See 
    id. at 321-22.
    On
    the merits, however, the Court found Richardson’s double
    jeopardy claim unconvincing. Distinguishing Burks v. United
    States, 
    437 U.S. 1
    (1978), the Court noted that, in the context
    of interlocutory review, Burks did not require appellate courts
    to reach claims concerning sufficiency of the evidence at the
    first trial: “Where, as here, there has been only a mistrial
    resulting from a hung jury, Burks simply does not require that
    an appellate court rule on the sufficiency of the evidence
    because retrial might be barred by the Double Jeopardy
    
    Clause.” 468 U.S. at 323
    . Even though Richardson filed Rule
    29 motions both before and after the mistrial, the Court con-
    cluded that, “[r]egardless of the sufficiency of the evidence at
    petitioner’s first trial, he has no valid double jeopardy claim
    to prevent his retrial.” 
    Id. at 326.
    [3] In a critical footnote, Richardson foreclosed jurisdiction
    over any future interlocutory appeal raising a sufficiency-of-
    the-evidence/double jeopardy claim of precisely the same
    variety as the one in Richardson:
    It follows logically from our holding today that
    claims of double jeopardy such as petitioner’s are no
    longer “colorable” double jeopardy claims which
    may be appealed before final judgment. A colorable
    claim, of course, presupposes that there is some pos-
    sible validity to a claim. Since no set of facts will
    support the assertion of a claim of double jeopardy
    UNITED STATES v. SCHEMENAUER                  489
    like petitioner’s in the future, there is no possibility
    that a defendant’s double jeopardy rights will be vio-
    lated by a new trial, and there is little need to inter-
    pose the delay of appellate review before a second
    trial can begin.
    
    Id. at 326
    n.6 (citations omitted). Footnote 6 in Richardson
    squarely forecloses our interlocutory jurisdiction to consider
    Schemenauer’s appeal. See, e.g., United States v. Jimenez
    Recio, 
    371 F.3d 1093
    , 1104 (9th Cir. 2004) (“Richardson also
    held that appellate courts may no longer exercise jurisdiction
    over interlocutory insufficiency appeals taken before a second
    trial has begun.”).
    United States v. Szado, 
    912 F.2d 390
    (9th Cir. 1990), is not
    to the contrary. In Szado, the defendant directly appealed his
    conviction before a magistrate judge on several grounds,
    including sufficiency of the evidence. 
    Id. at 390.
    The district
    court, sitting in an appellate capacity, reversed the conviction
    and ordered a new trial without reaching the defendant’s
    sufficiency-of-the-evidence claims. 
    Id. at 390-91.
    The defen-
    dant then sought interlocutory review in this court, arguing
    that a retrial would violate double jeopardy. 
    Id. at 391.
    Fol-
    lowing Richardson’s discussion of the collateral order excep-
    tion to the final judgment rule, we exercised jurisdiction over
    the appeal, finding defendant’s claim that he was entitled to
    a ruling in the district court on the sufficiency of the evidence
    “colorable” (and, indeed, ultimately meritorious). See 
    id. at 392.
    Schemenauer attempts to fit this case within Szado’s foot-
    print by arguing that she too has raised a “colorable” double
    jeopardy claim different from the one in Richardson — viz.,
    whether the district court erred by denying the Rule 29 motion
    on the basis of all of the evidence presented at trial, rather
    than considering only the evidence in the record when the
    motion was first made. The district court in Szado, however,
    failed to reach the sufficiency-of-the-evidence claim on
    490              UNITED STATES v. SCHEMENAUER
    appeal of a final judgment of conviction entered by a magis-
    trate judge. The conclusion that the double jeopardy claim in
    Szado was colorable reflects our decisions holding that appel-
    late courts should consider sufficiency-of-the-evidence claims
    on direct appeals of final judgments, not precedents concern-
    ing the appropriate way to decide a Rule 29 motion. See, e.g.,
    United States v. Bishop, 
    959 F.2d 820
    , 828-29 (9th Cir. 1992)
    (collecting cases and citing Burks, 
    437 U.S. 1
    ).
    [4] The Bishop line of cases is inapposite here. As in Rich-
    ardson, Schemenauer’s interlocutory appeal follows the dis-
    trict court’s declaration of a mistrial after the jury deadlocked
    and its subsequent denial of her Rule 29 motion. Schemenauer
    claims that the district court erred by considering all of the
    evidence at the time it denied her Rule 29 motion, instead of
    only that evidence in the record at the time the motion was
    made. The district court did rule on the motion, however,
    rather than declining to do so. Consequently, even if Sche-
    menauer is correct concerning the district court’s Rule 29
    error, her argument goes to the merits of her Rule 29 appeal,
    not to whether her double jeopardy claim is sufficiently “col-
    orable” to create interlocutory appellate jurisdiction. Instead,
    her appeal presents precisely the type of substantive double
    jeopardy claim held “no longer ‘colorable’ ” by the Richard-
    son 
    Court. 468 U.S. at 326
    & n.6. We consequently lack inter-
    locutory jurisdiction under § 1291.
    III.
    [5] The question remains whether we should issue a writ of
    mandamus under the All Writs Act, 28 U.S.C. § 1651. Man-
    damus permits an interlocutory appellate remedy where none
    otherwise exists. See, e.g., Cheney v. U.S. Dist. Court for the
    Dist. of Columbia, 
    124 S. Ct. 2576
    (2004). Bauman v. United
    States District Court, 
    557 F.2d 650
    , 654-55 (9th Cir. 1977),
    sets out the criteria we apply in determining whether to issue
    a writ of mandamus. Of critical importance is the third factor
    identified in Bauman, the existence of clear error as a matter
    UNITED STATES v. SCHEMENAUER                 491
    of law. See Gallo v. U.S. Dist. Court for the Dist. of Ariz., 
    349 F.3d 1169
    , 1177 (9th Cir. 2003), cert. denied, 
    124 S. Ct. 2420
    (2004). We therefore view the evidence in the light most
    favorable to the government and ask whether it is quite clear
    that no reasonable juror could have found the elements of
    each charge beyond a reasonable doubt. See United States v.
    Alarcon-Simi, 
    300 F.3d 1172
    , 1176 (9th Cir. 2002).
    A.   Count I: 8 U.S.C. § 1324(a)(2)(B)(ii)
    Count I of Schemenauer’s indictment charged her with vio-
    lating 8 U.S.C. § 1324(a)(2)(B)(ii) by bringing an illegal alien
    into the United States “for the purpose of commercial advan-
    tage or private financial gain.” Schemenauer’s central argu-
    ment on the merits of her sufficiency-of-the-evidence claim is
    that the government failed to introduce sufficient evidence at
    trial establishing that she intended to receive a “commercial
    advantage or private financial gain” when she committed the
    underlying offense.
    The facts here, however, are at least as strong as those
    found sufficient on this same issue in United States v. Angwin,
    
    271 F.3d 786
    (9th Cir. 2001), in which we held that:
    The statute does not require evidence of an actual
    payment or even an agreement to pay. It merely
    requires that the offense was done for the purpose of
    financial gain. Given [the smuggled alien’s] testi-
    mony that he expected that he would have to pay for
    his transportation once he arrived in Los Angeles,
    the substantial evidence of the defendant’s guilt, and
    the lack of any other possible explanation for Ang-
    win’s conduct, the evidence was more than sufficient
    for a rational jury to conclude beyond a reasonable
    doubt that Angwin committed the offense for the
    purpose of private financial gain.
    
    Id. at 805;
    accord. United States v. Yoshida, 
    303 F.3d 1145
    ,
    1152 (9th Cir. 2002).
    492                UNITED STATES v. SCHEMENAUER
    In this case, the government introduced evidence establish-
    ing that (1) the smuggled alien expected that someone would
    be paid $3,000 for her transportation; and (2) Schemenauer
    knew that Garcia-Ahumada, who had arranged her trip to
    Mexico and the installation of the speaker box (for $400), had
    previously been involved in smuggling aliens for financial
    gain, so she had reason to expect that Garcia-Ahumada was
    being paid this time as well. No explanation for Schemen-
    auer’s participation in a revenue-producing scheme was sug-
    gested other than an intent to share in the payments to be
    made. Under Angwin, the district court did not commit clear
    error in concluding that the evidence was sufficient.1
    B.    Count II: 8 U.S.C. § 1324(a)(2)(B)(iii)
    Count II of the indictment charged Schemenauer with vio-
    lating 8 U.S.C. § 1324(a)(2)(B)(iii), which makes it a separate
    offense knowingly to bring an alien into the country when
    “the alien is not upon arrival immediately brought and pre-
    sented to an appropriate immigration officer at a designated
    port of entry.” Schemenauer’s argument on this count (an
    argument she also proffers for count I) is that the government
    failed to introduce sufficient evidence that she knew an illegal
    alien was hiding in the speaker box and so failed to prove the
    requisite specific intent. We disagree.
    The evidence introduced at trial on this knowledge issue
    was sufficient. The nature of the speaker box and the heat in
    the camper shell would have required an expeditious retrieval
    of the smuggled alien from the compartment once the truck
    crossed the border. There was also evidence that the smug-
    1
    The government maintains that the statute does not require that Sche-
    menauer intended to receive a personal financial gain or commercial
    advantage for herself. Because there was sufficient evidence under Angwin
    to demonstrate that Schemenauer had the purpose of attaining financial
    gain or commercial advantage for herself rather than for someone else, we
    need not and do not address the government’s alternative argument.
    UNITED STATES v. SCHEMENAUER              493
    glers were not paid in advance. A reasonable juror could
    therefore have inferred that the driver would have had to have
    known of the alien’s presence; otherwise, the driver may not
    have delivered the alien alive, and the smugglers would not
    have been paid. Also, Schemenauer owned the truck, and evi-
    dence was introduced under FED. R. EVID. 404(b) with regard
    to her knowledge, indicating that Schemenauer and Garcia-
    Ahumada had knowingly worked together in smuggling oper-
    ations before. Given this evidence, the district court did not
    commit clear error in concluding that a reasonable juror could
    infer that Schemenauer knew that there was an illegal alien
    hidden in the speaker box.
    [6] As there was no clear error concerning the sufficiency-
    of-the-evidence issue, we will not issue a writ of mandamus.
    See 
    Gallo, 349 F.3d at 1177
    .
    DISMISSED.