United States v. Stephanie Smith

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2022
• Docket: 21-55714
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-55714

Plaintiff-Appellee, D.C. No. 2:20-cv-01156-ODW-RAO v.

MEMORANDUM* STEPHANIE SMITH,

Claimant-Appellant,

v.

$208,420.00 IN U.S. CURRENCY,

Defendant.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted June 8, 2022** Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Claimant-Appellant Stephanie Smith appeals from the district court’s order

denying her motion for reconsideration of her request for a stay of civil forfeiture

proceedings under 18 U.S.C. § 981(g)(2). We dismiss Smith’s appeal for lack of

jurisdiction.

Before the district court Smith argued that she was the subject of an ongoing

criminal investigation, and she asserts that we have jurisdiction over her appeal

pursuant to 28 U.S.C. § 1292 because the “issue before the District Court was

injunctive relief seeking a stay of the case to protect [her] Fifth Amendment rights

against self-incrimination.” Section 1292(a)(1) provides that we have jurisdiction

over “[i]nterlocutory orders of the district courts . . . granting, continuing,

modifying, refusing or dissolving injunctions, or refusing to dissolve or modify

injunctions.” Under § 1292(a)(1), we also have jurisdiction over orders that have

the “practical effect” of an injunction, if the appellant shows that the order “might

have a serious, perhaps irreparable, consequence, and that the order can be

effectually challenged only by immediate appeal.” Carson v. Am. Brands, Inc.,

450 U.S. 79, 83-84 (1981) (citation omitted). Unless an appellant makes this

showing, “the general congressional policy against piecemeal review will preclude

interlocutory appeal.” Id. at 84.

The Supreme Court, however, has held that an “order by a federal court that

relates only to the conduct or progress of litigation before that court ordinarily is

2 not considered an injunction and therefore is not appealable under § 1292(a)(1).”

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988).

Moreover, a motion for reconsideration of a request for an injunction is only

appealable if the motion for reconsideration raises new matter. See Sierra On-

Line, Inc. v. Phx. Software, Inc., 739 F.2d 1415, 1418 n.4 (9th Cir. 1984).

We need not address these issues because even if we assume without

deciding that Smith’s motion for reconsideration raised new matter, and that the

district court’s denial of the motion for reconsideration had the “practical effect” of

an injunction, we nonetheless lack jurisdiction under § 1292(a)(1) because Smith

has not satisfied her burden of showing that a serious, irreparable consequence

might result from the order denying reconsideration. See Carson, 450 U.S. at 84.

Smith first argues that proceeding in the litigation would require her alleged

commercial cannabis tenants to choose between “complying with subpoenas that

would forfeit their Fifth Amendment rights” and “refusing to comply and facing

contempt.” Smith does not have standing, however, to assert the constitutional or

legal rights of others. See United States v. Ward, 989 F.2d 1015, 1020 (9th Cir.

1992); Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987).

Smith next argues that permitting discovery to proceed may require her to

either “waive her right against self-incrimination . . . or enter [a] trial without the

ability to disprove [the government’s] arguments.” But Smith does not explain

3 how the ordinary practice of making specific assertions of the Fifth Amendment

privilege is insufficient protection. See Maness v. Meyers, 419 U.S. 449, 464

(1975) (noting that the Fifth Amendment privilege may be asserted “in any

proceeding, civil or criminal, administrative or judicial, investigatory or

adjudicatory” (citation omitted)); Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d

1258, 1265 (9th Cir. 2000) (noting that the “Rules of Civil Procedure recognize an

appropriate role for the exercise of [the self-incrimination] privilege”). Indeed,

“courts must seek to accommodate the [claimant’s] right against self-incrimination

in a civil forfeiture proceeding” if the claimant requests such an accommodation.

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 643 (9th Cir. 2012)

(citation omitted). Smith also does not explain why she might be unable to

disprove the government’s arguments at trial or why any consequences could not

be effectively challenged on appeal. Smith has thus not shown that immediate

appeal under § 1292(a)(1) is appropriate in these circumstances.

Because Smith has not shown that we have jurisdiction over her appeal

under § 1292(a)(1), and because she has not proffered any other potential bases for

our jurisdiction, she has not met her burden of establishing that jurisdiction exists.

See Melendres v. Maricopa County, 815 F.3d 645, 649 (9th Cir. 2016).

DISMISSED.