United States of America v. Stephanie Smith

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHANIE SMITH,
Claimant-Appellant,
v.
$208,420.00 IN U.S. CURRENCY,
Defendant.
No. 21-55714
D.C. No.
2:20-cv-01156-ODW-RAO
MEMORANDUM*
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).
FILED
JUN 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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

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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.

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