FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50256 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Angela M. Krueger and Victor J. Brunkow, Federal Defenders 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 plaintiffappellee.

OPINION

BERZON, Circuit Judge: 

Defendant-Appellant Louise Schemenauer takes this interlocutory 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 dismiss this interlocutory appeal for want of appellate jurisdiction. We also decline to issue a writ of mandamus.

I.

Early in the afternoon of August 28, 2003, Louise Schemenauer 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

UNITED STATES v. SCHEMENAUER 485
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 approximately 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 successfully 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 GarciaAhumada had previously been arrested for attempting to

486 UNITED STATES v. SCHEMENAUER
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 Southern 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 violate Schemenauer’s double jeopardy rights. The court denied

the motion to dismiss, ruling that Schemenauer was not entitled 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 controlled 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 prosecuUNITED STATES v. SCHEMENAUER 487
tion’s case-in-chief and again before submission of the case

to the jury. Both times, the motion was denied. The jury subsequently 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 consider Richardson’s claim that such an order violated his double 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 concluded 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-ofthe-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 possible validity to a claim. Since no set of facts will

support the assertion of a claim of double jeopardy

488 UNITED STATES v. SCHEMENAUER
like petitioner’s in the future, there is no possibility

that a defendant’s double jeopardy rights will be violated by a new trial, and there is little need to interpose 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 defendant then sought interlocutory review in this court, arguing

that a retrial would violate double jeopardy. Id. at 391. Following Richardson’s discussion of the collateral order exception 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 footprint 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

UNITED STATES v. SCHEMENAUER 489
appeal of a final judgment of conviction entered by a magistrate judge. The conclusion that the double jeopardy claim in

Szado was colorable reflects our decisions holding that appellate courts should consider sufficiency-of-the-evidence claims

on direct appeals of final judgments, not precedents concerning 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 Richardson, Schemenauer’s interlocutory appeal follows the district 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 Schemenauer 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 “colorable” to create interlocutory appellate jurisdiction. Instead,

her appeal presents precisely the type of substantive double

jeopardy claim held “no longer ‘colorable’ ” by the Richardson Court. 468 U.S. at 326 & n.6. We consequently lack interlocutory 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. Mandamus 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

490 UNITED STATES v. SCHEMENAUER
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 violating 8 U.S.C. § 1324(a)(2)(B)(ii) by bringing an illegal alien

into the United States “for the purpose of commercial advantage or private financial gain.” Schemenauer’s central argument 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] testimony 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 Angwin’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). 

UNITED STATES v. SCHEMENAUER 491
In this case, the government introduced evidence establishing 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 Schemenauer’s participation in a revenue-producing scheme was suggested 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 violating 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 presented 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 smug1The government maintains that the statute does not require that Schemenauer 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. 

492 UNITED STATES v. SCHEMENAUER
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 evidence was introduced under FED. R. EVID. 404(b) with regard

to her knowledge, indicating that Schemenauer and GarciaAhumada had knowingly worked together in smuggling operations 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 sufficiencyof-the-evidence issue, we will not issue a writ of mandamus.

See Gallo, 349 F.3d at 1177. 

DISMISSED. 

UNITED STATES v. SCHEMENAUER 493