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.