Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,341 Cases and Articles on TJV!
 
Federal Case Categories







U.S. v French

Case No. 12-10185 (C.A. 9, Apr. 7, 2014)

Jennifer French (“French” or “Jennifer”) appeals her convictions and sentence for wire fraud, mail fraud, and money laundering. The charges against French and her then-husband, Darin French (“Darin”), were based on allegations that the Frenches defrauded customers by tricking them into making advanced payments for high-end kitchen appliances which were never delivered. Prior to trial, both Jennifer and Darin elected to proceed pro se. Following a nine-day jury trial, they were both convicted.

On appeal, French raises two Sixth Amendment claims, neither of which merits reversal of her convictions. First, we hold that French’s waiver of the right to counsel was voluntary, knowing, and intelligent. Second, we conclude that, during trial, French’s right to self-representation was not violated when she adopted the district court’s suggestion to permit Darin to conduct her direct and re-direct examination.

French also contends that the evidence was insufficient to support her convictions. We hold that the evidence was sufficient to support her convictions for wire and mail fraud, and the district court properly instructed the jury regarding the mens rea for these offenses. However, the evidence was insufficient to support French’s convictions on two money laundering counts, and the jury was improperly instructed as to one of these charges. We therefore affirm in part and reverse in part French’s convictions. We need not address French’s sentencing claims and remand for re-sentencing in light of the reversal of her convictions on the money laundering counts.
 

 

Judge(s): Jacqueline H. Nguyen
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Constitutional Law
 
Circuit Court Judge(s)
Raymond Fisher
Jacqueline Nguyen
John Noonan

 
Trial Court Judge(s)
Larry Hicks

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Daniel Bogden U.S. Department of Justice
Robert Ellman U.S. Department of Justice
Elizabeth White U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Michael Kennedy Office of the Federal Public Defender
Dan Maloney Office of the Federal Public Defender

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
other is testifying. but that’s up to you . . . i from lwwg were directed awayfrom the ebayplatform and as previously noted, jennifer took the as we have explained, the phrase “dangers and the supreme court imposed certain limitations to protect a transactions in a way that prevented actual customers from his choice is made with eyes open.’ the question is not objectionable in one form united states v. french 35 question you’re asking yourself; and then if 28 u.s.c. § 1654; see also wheat v. united states, 486 u.s. many “dangers and disadvantages of representing yourself,” 830 (7th cir. 1986) (“[i]t is clear that an individual may french also cites federal rule of criminal procedure 44(c) as support was not violated than himself.” (internal quotation marks omitted)); accord dissent by judge noonan the court, with the parties’ concurrence, referred the jury to a safeguard for a pro se defendant, see, e.g., id., a trial judge defender, rene valladares, federal public defender, dan c. 598 f.3d 1158, 1164 (9th cir. 2010) (en banc). we then ask wiggan, 700 f.3d 1204, 1210 (9th cir. 2012). when testimony from a manager at ford that darin was the indictment, charging jennifer and darin french with multiple court denied french’s right of self-representation when it light of the reversal of her convictions on the money united states ex rel. mergent servs. v. flaherty, 540 f.3d 89 faretta right under mckaskle to “preserveactual control over special privileges or benefits, and the judge will not operated legitimately—she therefore lacked the intent to face in this case, you will be exposed to the dangers and counsel, including separate representation. unless amendment right to counsel. given french’s valid faretta the frenches . . . how we approach this so you because representation by a lay person bears directly on the counsel was knowing, intelligent and voluntary. it granted warning the frenches that they would be up against skilled, united states v. french 23 indeed, lay representation would obstruct the objectives of french’s sufficiency of evidence challenge fails with respect sixth amendment “affords the right of self-representation,” of a defendant is a complete defense” because it is united states v. french 27 leaving feedback on the company’s ebay seller profile. united states v. french32 is proceeding pro se.” (citing mckaskle, 465 u.s. at 187)). herself and darin moved to represent himself. since each sought only to desist letter demanding that lwwg remove all references to no. 12-10185 options allowable under the sixth amendment. we have also 1982)(“thefederalcourtshaveconsistentlyrejectedattempts amend. vi. this provision guarantees a criminal defendant the jury began deliberations on the seventh day of trial. separately, as well as to instructions regarding aiding and corrected the trial court’s misimpression that “[her] husband reiterating her previous allegations about domestic abuse. l. ellman, appellate chief, reno, nevada, for plaintiff- betweenrepresentationbycounseland the traditional practice accused must knowingly and intelligently forego those we therefore reverse french’s two convictions for money and autonomy of the accused,” mckaskle, 465 u.s. at of the legal research in light of darin’s incarceration for a to-defraud element of mail and wire fraud, the trial court’s defendant-appellant. collecting sales taxes. the frenches purported to believe that they could french nowhere argues that her sixth amendment right voluntary, knowing, and intelligent. second, we conclude make them during the trial to permit you to make your question concerns intent and the timing “substantially undermines” her post-hoc claim that he his faretta rights, a pro se defendant’s herrera-venegasv.sanchez-rivera,681f.2d 41, 42 (1st cir. in total, lwwg defrauded its customers out of more than of counsel and nine continuances, jennifer and darin both be resolved in the abstract; our decision must turn on the facts margin is highly unusual. bar may not represent clients (other than himself) in court”); discovery requests which she thought counsel should have likely contravened the well-settled rule against lay ii. during trial, french’s right to self-representation french’s sentencing claims raised on appeal. we note, however, that her is testifying. upon which the majority heavily relies, was contemplated objection, you’re going to answer the next positive reviews for lwwg. the company also structured not just what was said at the faretta colloquy. gerritsen, jury asking: to counsel in a prosecution for tax-related crimes, his wife the government maintains that this conviction was attorney, daniel g. bogden, united states attorney, robert regarding the method of testimony, stating: appliances.1 trial pro se, defrauded customers by tricking them into abused her, and that he controlled both her and lwwg’s french fails to satisfy this standard. the district court of a strategy to which she acceded. a verdict, convicting jennifer of 22 counts (14 counts of mail of the dangers and disadvantages of compromised. the dissent, on the other hand, in concluding by faulting not engage in criminal conduct on or before july 12, 2004. wright, 568 f.2d 142, 143 (9th cir. 1978) (citing cases). but internal quotation marks omitted). is entitled to consider all of the evidence individual who bought the truck, and that he alone signed the 494 f. app’x 784 (9th cir. 2012). the same reasoning applies this argument carries some intuitive appeal. allowing one to assist french, even over her objection. see faretta, 422 u.s. at 834 count 62, which was the $40,000 transfer of funds from that the district court did not abuse its discretion in denying b. the law is clear: “regardless of his persuasive powers, an possible penalties; and (3) the dangers and disadvantages of insufficient to support her convictions. we review a district that the participation in question deprived the united states v. french2 possessed the requisite intent to defraud. accordingly, french falsely told him she was a designer buying appliances necessary element of mail fraud and wire [i]t seems to me, that the best way for you to in a variety of respects. upon concluding its discussion, the pertained only to the intent-to-defraud element, or to the translate to profit. defendant] understood, not what the court said or court held that no such right was clearlyestablished under its 3 united states v. french18 scheme. in response, the court explained that such evidence hinkson, 585 f.3d 1247, 1261–62 (9th cir. 2009) (en banc). motion, the court may vacate any judgment and grant a new minutes later, darin assured the court he had elected to consider the evidence presented at trial in the light most 335, 343–44 (1963). the supreme court has recognized united states v. french 15 so you’re phrasing your question, you’re acceded to—indeed, deliberatelypursued—the same defense disregarded in the interest of efficiency or in order to move indictment. the court thus concluded that her waiver of evidence—and we are aware of none—supporting this the panel held that the evidence was sufficient to support waiver was voluntary. see gerritsen, 571 f.3d at 1008. involved criminal property, (3) the property’s value exceeds on to a website for lwwg. they would then receive an delivery. other times, she simply promised them a refund. issues raised for the first time in her reply brief. beyond a reasonable doubt.” id. (alteration, citation, and conducted on the ebay platform. viking products from its website. granted her motion for a judgment of acquittal under federal arrangement which french now claims violated her sixth 62 is based. to wit, when french said that “the e*trade united states v. french20 only in relation to standby counsel. mckaskle, 465 u.s. at disadvantages of self-representation in multi-defendant of any other instance in which a trial court allowed such an trepidation actually belies her claim that her waiver was not assessing a sufficiency of evidence challenge, we must february 2011 does not mean that she was aware of—let appear in the federal courts only pro se or through counsel.”); the record does not support the conclusion that, had jennifer conduct in 2004. moreover, the statement on which the no authority to suggest that a non-lawyer – much less an stocks to “put [the money] back into the business . . . to keep about their orders. additionally, the evidence showed that has been generally understood to refer. you’re going to be up in the witness box, and at the sentencing, the district court imposed a sentence of rogers, 321 f.3d 1226, 1230 (9th cir. 2003). as to the voluntariness of her waiver, french contends when she so desired. would present a coordinateddefense,predicatedon the theory and voluntary request,” made in good faith, and that she for the district of nevada e.g., solina v. united states, 709 f.2d 160, 168 (2d cir. united states v. french 17 support her convictions. we hold that the evidence was right to counsel granted by the sixth and fourteenth jury to an instruction telling them to consider each count did that defendant have any right to be represented by one, the context of non-joint representation.4 we have alreadyheld that representation bya person who language: proceed with the answer. mckaskle compels reversal of her convictions. in mckaskle, differs materially from the sorts of pro se “pitfalls” to which evidence strongly supports an inference that, to the extent good faith. after continued discussions, the court issued a participation” element of the offense. moreover, any minor 2012), neither of which compels a contrary conclusion. in the following morning, the court received a note from the 541 u.s. 77, 88 (2004), we have suggested language to guide but not a right to “lay representation.” see united states v. also united states v. lothian, 976 f.2d 1257, 1262 (9th cir. money from lwwg’s account was also transferred to understood.” id. at 1010. failure to meet the requirements the question is whether her right to represent herself was representhimself. jennifer individuallyassured the court that united states v. french30 of wire fraud and mail fraud, the meaning of “intent to look what we got (“lwwg”). according to the undermines later protestations that counsel calderon, 241 f.3d 765, 774 (9th cir. 2000), “correlative french relies on the supreme court’s reference to and co-defendant, ruth gillings, did not. id. at 1309. we pickup truck and boat. see united states v. darin french, no. 11-10294, 1161, 1167 (9th cir. 2004). ambiguity regarding the meaning of “ill intent” was not likely truck. we agree. the government fails to cite any french’s wire and mail fraud convictions. the elements of examination technique employed in this case, given the at 92 (a faretta waiver can “satisf[y] the constitutional designed in whole or in part—to conceal or disguise the is appropriate direct and cross examination of (upholding instructions that had a “minor ambiguity” after a witnesses, what motions you must make and when to united states v. french14 broader mens rea. however, the crucial inquiry at this states v. del toro-barboza, 673 f.3d 1136, 1152 (9th cir. constitutes structural error. to the jury. see french, 2012 wl 4845561, at *2. to, inter alia, jury selection, opening statements, closing that i suggest that if one of you is testifying 231 f.3d at 1138–39. 10 amendment rights was, at the time, a deliberate tactical amendment did not compel such an admonition. id. at 92. according to french, the court’s faretta colloquy was count 61 of the indictment. criminal liability attaches under french’s conviction under § 1956(a)(1)(b), even when we thus reject french’s claim that the faretta colloquy solicitation of or acquiescence in certain types to refer to the same monetary transaction upon which count appeal from the united states district court closing statement with her own short summation, in which discuss it with your counsel or discuss it with each other.” in instructed as to one of these charges, where the district court for six months to give the frenches time to prepare. laundering in violation of 18 u.s.c. § 1957, as charged in (1) jennifer’s statement that she and darin sold e*trade laundering counts, and the jury was improperly instructed as nature of darin’s scheme. a warning of this nature, however, accordingly, any such error was harmless. see united states convictions and sentence for wire fraud, mail fraud, and representation by persons who are not qualified attorneys. conducted her own examination, she would have pursued an that, during trial, french’s right to self-representationwas not § 3231. we have jurisdiction pursuant to 28 u.s.c. § 1291. § 1956(a)(1)(b)(i). in august 2010, after numerous changes summary* arrangement. but theconstitutional question beforeus cannot the case” presented to the jury. mckaskle, 465 u.s. at 178. statement in which she not only reiterated the same defense way.” mckaskle, 465 u.s. at 176. here, our review of the supreme court later reversed this decision. marshall v. nine-day jury trial, they were both convicted. allegations that the frenches defrauded customers bytricking 422 u.s. 821–33. these rules are not to be lightly bearing upon intent as it may relate to intent at been interviewed; and she discussed her distrust of counsel. that the other one be questioning the one who court suggested that the frenches might “want a moment to violated when she adopted the district court’s suggestion to case go more smoothly. day of trial, the district court reiterated its earlier suggestion iii. trial and post-trial proceedings jennifer’s request for a continuance, and continued the trial pro se and her request was honored by the court, she may not grasp the hazards of self-representation. and wire transfer. it then failed to fill hundreds of purchase lwwg accepted payments for appliances by actors. similarly, at the end of trial she followed darin’s one such company, viking, even sent lwwg a cease-and- united states v. french22 question; it was unclear whether their query about “ill intent” in fact, exist). numerous other witnesses similarly testified further, the evidence suggests that the testimonial questioning 10 different witnesses.7 that’s an easier way to go. it may make your government’s contention, that french was aware that her at trial. this inquiry presents a mixed question of law and making advance payments for high-end kitchen appliances whether to plead guilty [entails] the risk that a viable defense 5 indictment; she named material witnesses who had not yet our business running”; and (2) the fact that $50,000 was competently and intelligently to choose statement that she was “terrified” bythe court’s warnings, her wife.” self-representation, he should be made aware 176. while a court may appoint qualified standby attorney as “case-specific factors” as pertaining to factors bearing on the never been admitted to any bar.” united states v. hoffman, that because her decision to proceed pro se was a everything her husband told her—including that lwwg was 785 f.2d 682, 697 (9th cir. 1986). other circuits agree. see, direct her testimony on the stand infringed upon her “core” on appeal, french raises two sixth amendment claims, 733 f.2d 596, 600 (9th cir. 1984). “the principle applied in lwwg artificiallyestablished a positive feedback record have the assistance of counsel for his defence.” u.s. const. discussion the defendant’s motion for a new trial “in the interests of and professional training are greatly to be desired.”); united opinion by judge nguyen; on january 13, 2011, during a pretrial conference, the accordingly, we conclude that a rational trier of fact could conduct her direct and re-direct examination. the panel held before: john t. noonan, raymond c. fisher, defendant. because this result is unconstitutional and that they ran a legitimate, “innovative” business that was i appreciate all your eloquent words, and i do generate good will from doing this, which would somehow eventually french listed numerous motions, evidentiary requests, and not have found the essential elements of the money structural, it is therefore not amenable to harmless error united states v. french8 waived her right to counsel knowingly, intelligently, and united states v. french 9 “reply” that raised a number of new assertions. notably, she “whether this evidence, so viewed, is adequate to allow any 1166. because denial of the right to self-representation is with regards to intent, when it comes to the on the second day of deliberations, the jury submitted a jurisdiction argument, however, is inconsonant with tovar’s actual understands: (1) the nature of the charges against her; (2) the ‘seriouslyundermine[]’the‘appearancebefore thejury’that the defendant examination at trial raises concerns about the erosion of the supporting her convictions of two counts of money questions during french’s testimony changed the dynamic of french’s was no evidence that she, as opposed to her husband, engaged been prepared by court staff for the convenience of the reader. refunds. instead, large sums of money were transferred from complaints concerning counsel’s subsequent examination to her husband, she ultimately retained control district court raised a potential issue regarding trial either of you to testify in this case, is if the argues that this conviction should be reversed because there account and used to purchase, among other things, a ford pro se defendant’s sixth amendment rights were violated additionally, in suggesting that darin conduct jennifer’s examination, could have found beyond a reasonable doubt that french to proceed pro se was voluntary, she was the dominant she acted with the requisite intent. we disagree. at trial, the 1001, 1007 (9th cir. 2009) (citation omitted). as the before you can answer the question, and the government has to have an opportunity to formulating a supplemental jury instruction regarding the described these rights as “concomitant,” sandoval v. to her convictions for mail and wire fraud. approach if that was the way you wanted to went directly to an e*trade account held exclusively in for publication § 1957 where a defendant (1) knowingly engages in a but, even assuming the district court erred in this regard, iii. the district court properly denied french’s 1 of self-representation.”). joint representation and must personally advise each (“the right to counsel was viewed as guaranteeing a choice united states v. french 11 highly-trained government prosecutors and be disadvantaged them into making advanced payments for high-end kitchen “whether the instructions as a whole are misleading or district court’s denial of a motion for a new trial for abuse of requiring reversal of a defendant’s conviction. see erskine, darin conduct jennifer’s direct and re-direct examination filed with the court; she discussed defectsshe perceivedin the relinquished benefits.” united states v. gerritsen, 571 f.3d we begin with the text of the sixth amendment, “[i]n all lasting approximately five hours over the course of two days. and placate customers with falsehoods well into that summer. 1307, is instructive. in gillings, we held that although reverse in part french’s convictions. we need not address nor do we agree with french that gillings, 568 f.2d wiggins, 465 u.s. 168, 177 n.8 (1984). harmless error analysis. approach it. 1983);harrison v.united states, 387 f.2d 203, 212–14(d.c. the “innovative” business plan was for lwwg to purchase full-priced same). “it is settled law that intent to defraud may be united states v. french 7 court’s denial of a rule 29 motion de novo. united states v. $1.6 million in customer payment, but spent only french subsequently moved for reconsideration, the defendant’s convictions for wire and mail fraud, and that personal bank account on july 27, 2004. these funds were very end of the hearing. id. here, in contrast, french participate in the trial obliterates any claim joint checking account between september 2 and september we turn next to a related question—whether the trial 2011), suggesting that these rights are the two and only two claim of procedural error is foreclosed by our decision in united states v. jennifer french: yes, your honor. chance, but she in fact presented her case in her own way. on [them] enough how important i think it is that [they] have united states v. french 33 determine de novo whether the court identified the correct is not a qualified attorney constitutes a per se violation of the of merely pro forma answers to pro forma questions at the court need not recite any set “formula or script” to a proceed pro se—the district court properly found that her in the courtroom could impair her ability to confer with darin rules governing representation by counsel are fruits of 12 government that darin was “trying to circumvent testifying united states court of appeals particularly because darin had no involvement in french’s v. wilkes, 662 f.3d 524, 545 (9th cir. 2011). violation of a party’s statutory right to self-representation is 2012). 571 f.3d at 1012 (interpreting tovar’s reference to examination and you rely upon that. as charged in count 62. this charge was based on a $40,000 rel. mccann, 317 u.s. 269, 279 (1942)). although a district voluntarily. the district court properly instructed the jury regarding the and court procedures. unlike the prosecutor you will opinion throughout the trial. in short, she was thoroughly engaged, waiver, a reviewing court may look to the record as a whole, that he or she understands the value of being represented by assented to her husband’s role in shaping her examination transaction involving criminal property in purchasing the transferred from darin’s e*trade account to the frenches’ things along. well-intentioned as the trial judge was, he had measures to protect each defendant’s right to counsel. cir. 2004), and rodgers v. marshall, 678 f.3d 1149 (9th cir. from the start of the company or at any time court also provided a supplemental four-paragraph response, got the funds back from the “second supplier” (who did not, permit darin to conduct her direct and re-direct examination. considerable evidence showing that french personally she had made the same choice. note: mack, we held that it was structural error to forbid a pro se (citation omitted)). products through ebay, when in fact the transactions were not we note that the district court could have appointed standby counsel supreme court explained in faretta: 11 (stating that the relevant inquiry for a reviewing court is discretion. see united states v. moses, 496 f.3d 984, 987 santos, 553 u.s. 507 (2008), and united states v. bush, 626 f.3d 527 (9th at third-party lay representation. by law an individual may reasoned that ruth’s participation in the colloquy consisted explicit warning about a potential conflict of interest, the panel held that the defendant’s sixth amendment “central component of the scheme” under united states v. van alstyne, (2d cir. 2008); lewis v. lenc-smith mfg. co., 784 f.2d 829, defraud. the court denied her motion, declining to address laundering. we turn first to her conviction of money between june 1 and october 8, 2004, lwwg collected to one of these charges. we therefore affirm in part and argued for the first time that darin mentally and physically the “interests of justice” because her husband’s abuse and motion untimely under fed. r. crim. p. 33(b)(2). her contention that the court was required to provide a states v. mohawk, 20 f.3d 1480, 1484 (9th cir. 1994) (an canvassed each defendant individually. jennifer stated that united states v. french10 by our model language. it adequately apprised french of the united states v. french 29 record leads us to conclude that french not only had such a credit card (american express and discover), money order, 9 given the opportunity and elects to have given the objective indicia of voluntariness—to wit, her point out that the e*trade account into which company funds were wasinsufficienttosupportthedefendant’sconvictions ontwo of her sixth amendment rights. id.9 effort to distinguish between his and jennifer’s conduct. at abused its discretion, we apply a two-part test. first, we scant support for french’s position.5 you need to indicate what your next question decision. on at least two occasions, she inquired about the defendant in mckaskle expressly objected to standby disadvantages of not knowing the complexities of jury waived her sixth amendment right to counsel and elected to reimbursed by the credit card companies for their loss. the intent to defraud must have existed at the so, to be clear here . . . both of you have an 1992) (noting that the elements of mail and wire fraud are the purposes of the sixth amendment.” united states v. mouzin, 2 reviewed de novo.” united states v. hantzis, 625 f.3d 575, added)). so viewed, the district court’s supplemental mckaskle in at least one crucial respect: unlike jennifer, who unlawful activity.10 was rendered constitutionally deficient by the omission of an the district court did not abuse its discretion in deeming her although a defendant need not himself have convicted of a serious federal crime. her conviction cannot nor are we persuaded by french’s contention that juncture is “how the jury would have reasonably understood the time of the charged offense. stand. represent herself at a critical stage at her trial, jennifer was darin’s name. notably, there is no evidence in the record objections, or presenting a closing argument, even where the laundering in violation of 18 u.s.c. § 1957 and 18 u.s.c. conflict advisement as part of its faretta colloquy. this march 13, 2013—san francisco, california any other way. see cooks v. newland, 395 f.3d 1077, 1080 (9th cir. a defendant of money laundering under § 1956(a)(1)(b), the fact and thus is subject to de novo review. mckaskle v. downward variance from french’s advisory guidelines interested co-defendant – represent a criminal defendant, nor we first consider whether sufficient evidence supported because she never moved for joint representation; she moved to represent 9, 2004. this evidence, however, is not enough to sustain plaintiff-appellee, statement to the jury, what is admissible evidence, what transfer of funds from lwwg’s bank account to darin’s testify, stating: even if you make mistakes, you will be given no then used to purchase a 2003 ford f250 pickup truck. french is that you would like to answer. appliances which were never delivered. prior to trial, both 579 (9th cir. 2010). in assessing the validity of a defendant’s dominant speaker at the faretta hearing. 362 f.3d at 601–03. and, while we held in rodgers that a would have presented, such as a serious delay in the jury trial, there is no court was obligated to advise her as to a potential substantive alone had access to—the account at the time of the offense listening to you, you have me terrified. ii. post-indictment proceedings united states v. french36 motion for a new trial § 1957(f)(3); 18 u.s.c. §1956(c)(7)(a); 18 u.s.c. §1961(1). although french may have ceded control of her transaction involved the proceeds of unlawful activity, (3) the rejectfrench’schallengeto thesupplemental juryinstruction. plied unhappy consumers with excuses for the delay in then-husband, darin french (“darin”), were based on united states v. french 31 fed. r. crim. p. 44(c)(2). french’s reliance on rule 44(c) is misplaced united states v. french 25 she again emphasized that she and darin were failed business for her argument. this provision states, in relevant part: maynot allow, let alone encourage, a non-lawyer to represent michael j. kennedy (argued), chief assistant federal public she had a “fair chance to present [her] case in [her] own d.c. no. rational trier of fact to find the essential elements of the crime “by-product” of her husband’s physical and emotional abuse, in response to the government’s opposition brief, she filed a selection, what constitutes a permissible opening to deceive or cheat at the time of the offense darin used terms such as “we,” “us,” and “our,” making little laundering offense charged in count 62 beyond a reasonable french also challenges the sufficiency of evidence v. california, 422 u.s. 806, 820 (1975). “because a court’s faretta colloquy, separate from the issue of how darin asking account to the frenches’ joint bank of the west account; they from sales of appliances, yet decreased its inventory at trial of a pro se defendant by an interested, non-lawyer co- viewing the evidence in the light most favorable to the the mails or wires to further the fraudulent scheme, and united states v. french4 witnesses, introducing evidence, examining witnesses, adduce sufficient evidence to support her conviction for added), she could only have been talking about funds which jennifer testified on the sixth day of trial, adopting the present evidence in the defense case would be a defendant at a critical stage of her trial. * lrh-wgc-2 otherwise, you’re in the situation where motion for a new trial and motion to reconsider denial of her “nothing in the language or the history of the sixth supplemental instruction “diluted” another aspect of criminal representation in this case violates the sixth amendment and united states v. french34 prosecution, as we must, we believe a rational trier of fact next, french contends that the district court should have stages of the prosecution. gideon v. wainwright, 372 u.s. advocate who is not a member of the bar may not represent french’s questions were generally consistent with darin’s defense united states v. hofus, 598 f.3d 1171, 1174 (9th cir. 2010) based on the foregoing, we therefore hold that french court conducted an extensive and thorough colloquy, guided money laundering. the charges against french and her (2) ‘implausible,’ or (3) without ‘support in inferences that from the start of the company or at any time court’s questions about the basis for their faretta request, united states v. wright, 568 f.2d 142, 143 (9th cir. 1978). the challenged instruction in the context of the instructions as 176–77. we have described these rights as “reciprocal,” also united states v. turnbull, 888 f.2d 636, 638 (9th cir. have to abide by the same rules in court as lawyers do. 7 lead in preparing pre-trial motions (on behalf of both herself filed april 7, 2014 nature, the location, the source, the ownership, or the control for one of you to question the other while the defendant and her then-husband, both of whom proceeded to owners, but not criminals. french also actively participated united states v. french16 united states v. french24 representation was respected, the crucial question is whether manipulation precluded her from pursuing her independent functioned as lwwg’s appliance supplier testified that vasquez-cruz, 692 f.3d 1001 (9th cir. 2012). even when he insists that he is not waiving but i’m not requiring that. i’m just saying prejudicial in light of the clear instruction that the “good faith email with pricing and purchasing information from french contends that there was insufficient evidence that purchase stock. district court’s suggestion to allow darin to conduct her direct problem with potential conflicts of interest. we are unaware $30,000 from lwwg’s bank account to the frenches’ joint long english and american experience. see faretta, pro se defendant’s faretta right against unsolicited and by the district court. moreover, because no conflict of i. the scheme to defraud iv. sufficient evidence supported french’s wire proceeding pro se suggests that she was, in fact, fully able to during this hearing, the district court repeatedlyimplored mckaskle, 465 u.s. at 178–79. this case differs from and disadvantages of representing yourself. you will legal rule to apply to the relief requested. united states v. such cases is that one never admitted to practice law and the dissent then arrives at the converse conclusion—that lay johns v. county of san diego, 114 f.3d 874, 876 (9th cir. we are unaware of any court that has allowed the and oral advocacy. while french makes much of her for the ninth circuit husband had an e*trade account when she testified at trial in the skill and experience of a lawyer in order testifying defendant’s faretta rights, as well as an obvious representation later. her decision to represent herself was a “knowing, intelligent, united states v. french 21 multiple defendants with possible conflicts of interest. conclusion we also find instructional error with regard to count 61 because the dangers and disadvantages of self-representationwith respect different appliance-related fraud scheme, and she was the jury. declined lwwg’s request to become an authorized dealer. id. at 182–83. so too here, the fact that french readily darin used her as a mouthpiece at trial, it was in furtherance the money laundering counts. jennifer french (“french” or “jennifer”) appeals her scheme.” we recognize the ambiguity inherent in the jury’s proceedings. be represented by an individual, other than herself, who is not received a response. others were contacted by jennifer 153, 159 (1988) (“an advocate who is not a member of the united states of america, deficient because she was left “unaware of the dangers and skilled prosecutor who is experienced in criminal law rogers, 321 f.3d at 1229. “jennifer” at ebay@lwwg.com. this structure gave arrangement here, see op. at 19, and for good reason. unmeritorious. on april 12, 2012, french timely filed a proceedings have been initiated against him.” brewer v. defendant knew that the proceeds were from unlawful after almost three days of deliberations, the jury reached and not amenable to harmless error. see mckaskle v. own behalf numerous times during trial. after darin gave an 3:08-cr-00006- dissenting, judge noonan wrote that the examination at neither of which merits reversal of her convictions. first, we was questioning for [her].” thus, viewing the record in counsel appear before the court or jury, his counts of mail fraud in violation of 18 u.s.c. §1341; wire of mail and wire fraud, reverse her convictions for money n.46. but, ignoringthepractical problemsthat appointing standbycounsel francis gillings knowingly and intelligently waived his right for resentencing in light of the reversal of her convictions on french first challenges the validity of her waiver of the were transferred out of darin’s e*trade account and into orders. many customers who tried to contact lwwg to self-representation. see united states v. erskine, 355 f.3d we next address whether french’s waiver of the right to counsel. see united states v. gillings, 568 f.2d 1307, 1309 defense—that she lacked knowledge about the fraudulent functions and the lawyer’s superior ability to handle them”). represent himself or herself, it makes little sense to mandate a rule 44(c) the panel rejected the defendant’s contention that the law, does, “ill” intent have to be established issue in count 62 were not transferred from lwwg’s foregoes the benefits of exercising the right to counsel, the french also asserts that she was entitled to a new trial in with regard to the trial itself, i want to inform monetary transaction, (2) knowing that the transaction defendant’s waiver of the right to counsel was voluntary, although the court conducted the hearing—including sealed instruction was not plainly erroneous. the jury instructions jennifer and darin elected to proceed pro se. following a pointed to any evidence from which a rational trier of fact defendant-appellant. sufficient to support her convictions for wire and mail fraud, totality, we find that french was afforded a fair chance to event that you do choose to testify, the normal feel that i need a moment because, after amendments means at least that a person is entitled to “whetheradefendantknowinglyandintelligentlywaived lwwg’s account into darin’s e*trade account. knowing and intelligent. that she was “terrified” of supplemental instruction that included the following 2005) (“standby counsel may . . . participate in trial proceedings, without established by circumstantial evidence.” united states v. accused seeking self-representation must understand “the behalf, he has no authority to appear as an attorney for others elizabeth olson white (argued), assistant united states noonan, circuit judge, dissenting; fraud is an intent to defraud; that is, an intent excursion, a ford pickup truck, and a $50,880 bayliner boat. “case-specific factors” in tovar, 541 u.s. at 88, to support disadvantages” does not mean that “the judge must serve as of french’s intent to defraud. for example, the dealer who and darin), and actively participated in pre-trial hearings. notice of appeal, challenging her convictions and sentence. defendant of control over his own defense. . . . justice.” definition of “intent to defraud,” co-schemer liability, and mail fraud is listed as a “specified unlawful activity.” 18 u.s.c. general, district courts must ensure that a defendant because you have to ask yourself the question solely on cases involving purported violations of the sixth 8 the district court every indication that she and her husband acquiesced in darin’s involvement in her examination, the rule would be that you have to identify the and darin as “the defendants,” rather than as individual failed to define “proceeds” as “profits.” the panel remanded counsel’sparticipation. thisdistinction is important because, interest issue was implicated in gillings, the case provides addressed each defendant separately. jennifer had done most self-representation, so that the record will after hearing from the government, the court then v. the supplemental jury instruction was not plainly manufacturers which it could re-sell at a discount. in it was not truly voluntary. again, the record tells a different viewed in the light most favorable to the prosecution. interfered with her ability to control her own case in violation or another, the court will clear it and you may we hold that her right to self-representation was not violated. in determining whether a pro se defendant’s right to self- in the cross-examination of government witnesses, separately and the district court properly instructed the jury regarding here—whether the frenches’ use of the truck to deliver appliances was a as a whole clearly and repeatedly articulated the “knowing present her own case.8 to counsel was violated. instead, as she correctlyrecognized, amendment requires a trial court to specifically warn can be preparing accordingly . . . . waiver, the sixth amendment right to counsel and the precedent. id. at 1450–51. thus, neither mack nor rodgers will be on his or her own in a complex area where experience the mens rea for these offenses. however, the evidence was holding. the question in tovar was whether the sixth government must prove that (1) the defendant conducted or questions asked of her on the stand), jennifer spoke on her district courts in conducting faretta colloquies. see united major appliance dealers oftenwriteprice floorsintocontracts, a90%gross interfered unacceptably. . . . [i]f a defendant is sentencing range of 46–57 months. french subsequently by [improperly] trying to get his testimony in through his in violation of 18 u.s.c. § 1957 and 18 u.s.c. interpose its objection. it’s for that reason defendant’s knowledge about the value of counsel). advisement. unlike the transactions which formed the basis of other defraud,” co-schemers’ liability, and good faith defense. the right to counsel. the sixth amendment guarantees a customers as follows: lwwg held itself out as being able here, the charge in count 61 was based on a transfer of 1001, 1007 (9th cir. 2009); see also faretta, 422 u.s. at 825 to order high-end kitchen appliances directly from (3) specific intent to defraud. 18 u.s.c. §§ 1341, 1343; see that is very awkward in front of a jury affirmed in part; reversed in part. at ebay by creating fake merchandiser accounts to write dangers and disadvantages of self-representation is to ensure rule of criminal procedure 29(c) because the evidence was particular count of the indictment as to jennifer french. to nevada corporation to sell to california consumers at a discount, without opportunity, however. criminal law is likely to arise, the court must take appropriate trial fairness, see gideon, 372 u.s. at 344, with “the dignity hold that french’s waiver of the right to counsel was at one point, she even new trial motion. nor was its application of this standard united states v. french 3 importantly, however, the district court’s suggestion that represent a client in court cannot be allowed to do so . . . for williams, 430 u.s. 387, 398 (1977) (emphasis added); see alleged against each defendant. defendant of the right to the effective assistance of of intent. as reflected in the instructions, a portions—in the presence of both jennifer and darin, it cashier’s checks lost a combined total of $325,875.00. laundering counts. 28 u.s.c. § 1654)). participatedsignificantlyin the extensive colloquyconducted government presented considerable circumstantial evidence indicating that jennifer had access to this account, let alone frenchassertsthatthecase-specificfactorswhichmust be prosecutions where conflicts of interests exist.”3 alleged abuse until more than 14 days after the jury verdict, excessively intrusive participation by standby counsel. wiggins, 465 u.s. 168, 177 (1984); erskine, 355 f.3d at today,themajorityapprovesasharmlesstheexamination $10,000, and (4) the property derives from a specified and mutuallyexclusive,” united states v. gerritsen, 571 f.3d rodgers, 133 s. ct. 1446 (2013) (per curiam). the supreme pickup truck, her conviction for money laundering pursuant 355 f.3d at 1167. with regards to intent, when it comes to the appear in federal courts only pro se or through legal counsel.” defendant the right to proceed without counsel. see faretta sixth amendment). united states v. french26 “inconsistent with the intent to defraud required in all mail for instance, french falsely stated in an email to a customer this summary constitutes no part of the opinion of the court. it has 486 u.s. 153, 159 (1988). once jennifer decided to proceed which were never delivered. money laundering charges in the indictment, the funds at i. french’s waiver of the right to counsel was defendant from cross-examining witnesses, making fraud; six counts of wire fraud; and two counts of money active and personal participation in support of her motion to indictment, the frenches used their online business to defraud fulminante, 499 u.s. 279, 310 (1991), the defect is structural judgment in a case in which the government alleged that the possible consequences of mishandling [a lawyer’s] core representation. later, we address darin’s questioning, which created the funds to be the proceeds of unlawful activity. contrary to the the structure of the [sixth] amendment”: a defendant’s [a] defendant’s invitation to counsel to that they either spoke to or exchanged emails with french 1138. rather, the purpose of advising a defendant about the their joint checking account—not the transaction charged in simply unsuccessful.6 1989) (holding that “counsel” means “attorney” under the larry r. hicks, district judge, presiding the trial commenced on february 8, 2011. on the fourth else it may mean,” the supreme court has explained, “the stated the correct legal standard in denying both her initial where the district court denied his request to appoint counsel defendant is a structural constitutional defect not amenable to mens rea for these offenses. the panel held that the evidence illogical, implausible, or without support in the record. giving the government an opportunity to cir. 1967). a licensed attorney. indeed, the “control” test in mckaskle, pro se defendant to conduct another pro se defendant’s the frenches operated an online ebay-based business, fraud in violation of 18 u.s.c. § 1343; and money laundering representation and created the opportunity for conflict. indication in the record that french would have been inclined to testify in favorable to the prosecution. united states v. nevils, advocate at the hearing on the motion. in response to the erroneous considerably. just alert you that i would accept that constitutional right to represent himself. faretta v. questions to any question darin asked. she did not take advantage of this amendment to the constitution” contemplates permitting procedure 33, arguing that a new trial was warranted on 4 question. and that is awkward. . . . v. spangle, 626 f.3d 488, 494 (9th cir. 2010) (“any alleged jennifer interjected, saying: defendant who exercises the right to self-representation hazey, 533 f.3d 724, 728 (9th cir. 2008) (en banc). consumers who expressed interest in purchasing appliances § 1956(a)(1)(b). law, does “ill” intent have to be established theory that darin sought to establish through her testimony, argued and submitted now raises on appeal, plain error review applies. see united insufficient to support french’s convictions on two money representation by counsel that is “necessarily implied by moreover, even assuming that darin controlled her defense. fed. r. crim. p. 33(a) (“upon the defendant’s defendantsseparately,andinstructionsregardingtheelements discretion by refusing to grant french’s post-conviction moved for a new trial under federal rule of criminal other one questions that witness because, darin’s personal e*trade account where it was used to french via phone or email. on numerous occasions, french to § 1957 cannot stand.11 24 months of imprisonment, which represents a substantial in a monetary transaction relating to the purchase of this indeed, the court explicitly stated that it could not “impress a surrogate lawyer for the defendant.” hayes, 231 f.3d at “careful picking apart” of the wording). accordingly, we understood the penalties relating to each count in the because the matter is remanded for sentencing, we need not address making motions and preserving a record, procedural rules, testify, that mr. french conduct your therefore who never acquired the threshold qualification to on april 29, 2009, a grand jury returned a superseding appellee. adequately supported by two pieces of evidence: of this particular case. as the supreme court has explained, to which jennifer objected on grounds of redundancy. establish that ‘he knows what he is doing and presentation in the event either jennifer or darin elected to unsolicited participation lose much of their opening statement, she gave her own separate opening french also contends that the evidence was insufficient to object, and then you’re – if there’s no right to self-representationwasnot violatedwhensheadopted (9th cir. 2007). in determining whether a district court minimum” even where a defendant “lack[s] a full and omission of an explicit warning about a potential conflict of of participation by counsel substantially however, the 46 customers who paid with personal or throughout the life of the company? laundering convictions john-charles v. california, 646 f.3d 1243, 1248 (9th cir. acknowledges that—in accordance with faretta—french intent—the element of “knowingly participating in a 6 584 f.3d 803 (9th cir. 2009), is a factual question that should have gone activity, and (4) the defendant knew that the transaction [was] in sum, while we harbor substantial misgivings about the we also agree with french that the government failed to specifically, french contends that allowing darin to united states v. french 13 sixth amendment where “the defendant’s representative had attempted to conduct a financial transaction, (2) the abetting, elements of mail fraud, elements of wire fraud, the that french’s sixth amendment right was violated, relies supplemental instruction on a different basis at trial than she a whole.” united states v. moran, 493 f.3d 1002, 1009–10 she also expressed concern about how seating arrangements following discussion with the parties, the court referred the consumers the false impression that they were purchasing the phrase“dangersanddisadvantages of self-representation” appliances from suppliers, and then take advantage of their status as a throughout the life of the company? french relies on united states v. mack, 362 f.3d 597 (9th v. background fraud and wire fraud offenses.” cf. moran, 493 f.3d at 1010 the express consent of the defendant, so long as the participation does not selling to the frenches in may 2004 (effectively leaving their that she personally transferred money into it, knowing the analysis. mckaskle, 465 u.s. at 177 n.8; see also frantz v. government relies as corroborating evidence does not appear and numerous times took the lead, at every stage of the because french did not raise her arguments about darin’s of the proceeds of specified unlawful activity. united states for her clients. further, even though this dealer stopped inadequate to guide the jury’s deliberation” (emphasis his right to counsel is a mixed question of law and fact, 571 f.3d at 1008. the focus is properly on “what [a reviewed under a harmless error standard.” (discussing criminal prosecutions, the accused shall enjoy the right . . . to supports the proposition that the district court abused its will be overlooked.” tovar, 541 u.s. at 81. writing for a knowing, intelligent, and voluntary the court then took a recess at darin’s request. twenty the assistance of counsel and after losing her right to one solitary constitutionally permissible alternative to absolute privilege not to testify . . . . but in the moved to proceed pro se. united states v. french 5 that lwwg would send his refund as soon as the company that she was willing and able to differentiate her conduct from darin’s concern about keeping darin’s prior fraud conviction out of counsel in this case.” the district court then cataloged the there is good cause to believe that no conflict of interest an instruction telling the jury to decide each count against the i think the smoothest way for someone – defendant who seeks to waive counsel, iowa v. tovar, lwwg’s customers never received any of the promised the sixth amendment, “not further them.” id. “whatever states v. hayes, 231 f.3d 1132, 1138–39 (9th cir. 2000).2 to assist him with a post-verdict motion, 678 f.3d at 1154, the district court’s faretta colloquy was deficient by the may be drawn from the facts in the record.’” id. of the correct legal standard was (1) ‘illogical,’ laundering, and remand for re-sentencing.12 unanimous court, justice ginsburg opined that the sixth operations. french further claimed that because she believed trial if the interest of justice so requires.”). we review the theory advanced in darin’s opening, but referred to herself and re-direct examination. throughout jennifer’s testimony, darin was convicted of 36 counts. examination (and that she played no part in crafting the laundering) and acquitting her of 30 counts, finding she did complete appreciation of all of the consequences flowing time of the alleged offense. however, the jury (9th cir. 2007) (per curiam) (emphasis added); see also motions “in the interest of justice.” potential conflict, french effectively asserts that the district united states v. french 19 story. not only did french expressly affirm that her request force. check on the whereabouts of their merchandise never the district court denied the motion as untimely and meaning of “ill intent.” because french objected to the $105,422.07—approximately 10 percent of that amount—on given that high-end appliance dealers are in a line of business with help you. the government is represented by a trained, “framework within which the trial proceeds,” arizona v. post-trialmotionsand protect your rights on appeal, and reversed his money laundering convictions based on the purchases of the strategy with one exception: she asked one witness a question designed to the panel affirmed in part and reversed in part a criminal individual self-representationat this stage of the proceedings. united states v. french12 california, 422 u.s. 806, 819 (1975). these rights balance b. could infer that french knowingly engaged in a monetary the district court’s suggestion to permit her husband to from his waiver” (emphasis added)); see also gerritsen, jennifer lynn french, based on the foregoing, we affirm french’s convictions court failed to define “proceeds” as “profits” under united states v. the district court expressly noted that she could ask herself follow-up united states v. juan, 704 f.3d 1137, 1140 (9th cir. 2013). amendment right to self-representation. the dissent admissibility of darin’s prior felonyconviction for a different again, we address the impact that darin’s questioning had on french’s least twice, the court sustained objections from the and mail fraud convictions, but not the money clients (other than himself) in court.” wheat v. united states, desire [to represent yourself] as well? if so, we then consider “whether the trial court’s application opinion the frenches to maintain their attorney representation. could come in if darin were to testify. french’s manifest expensive inventory, stiff competition from other retailers, and in which these offenses are (1) proof of a scheme to defraud, (2) using allowed darin to conduct her direct and re-direct examination we first address french’s claims regarding self-representation and the specifically, in hayes, we suggested the following language: a. grounds of instructional error and insufficiency of evidence. transferred was held exclusively in darin’s name. this question indicates the help of a lawyer at or after the time that judicial arguments, evidentiary objections, framing questions to (9th cir. 1978) (“the defendant must be aware that he or she for a valid waiver constitutes per se prejudicial error, money laundering in violation of 18 u.s.c. § 1956(a)(1)(b), maloney, research & writing attorney, reno, nevada, for as the court explained in mckaskle, the court for failing to warn her about the existence of a the sixth amendment right to counsel with the sixth the district court held a hearing on their faretta motions counsel doubt. see nevils, 598 f.3d at 1161. nothing in our case law requires such explicit advisement in cir. 2010). addressing this same issue in darin french’s appeal, we interest in this multi-defendant prosecution, and held that the nguyen, circuit judge: knowing, and intelligent. opportunity for conflict after the colloquy. and jacqueline h. nguyen, circuit judges. $1.5 million. eventually, 80 percent of customers were french also contends that the district court erred in considered under tovar “surely include” the involvement of trial of a pro se defendant by an interested, non-lawyer co- a. see tovar, 541 u.s. united states v. french6 actuality, however, most major appliance lines had explicitly during the summer of 2004, lwwg increased its revenue defendant was disruptive and contemptuous of the court. e*trade account between august 5 and 19, 2004. to convict the court: okay. mrs. french, is that your the district court had jurisdiction pursuant to 18 u.s.c. independent defense which placed the blame solely on darin. the court will now tell you about some of the dangers united states v. french28 counsel was knowing, intelligent, and voluntary. the district defendantsthat“waivingthe assistance of counselin deciding the court must promptly inquire about the propriety of faretta, 422 u.s. at 835 (quoting adams v. united states ex the contrary, the only evidence pertaining to count 61 is business without a supplier), french continued to cash checks so i would recommend that if you’re going to stocks [were] sold, put back into the business” (emphasis what constitutes appropriate closing argument to the transaction documents. because the government has not proceed pro se. the dissent also rightly points out that the money laundering counts, and that the jury was improperly french argues that by focusing exclusively on the intent- over the case presented to the jury. from the outset, she gave 1997) (“while a non-attorney may appear pro se on his own french’s sentencing claims and remand for re-sentencing in lwwg’s account to the frenches’ joint personal checking other than herself, who is not a member of the bar. without the appointment of counsel for his defense at all critical in finding a constitutional violation, the dissent confuses authorities cited by the dissent are inapposite.


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise