United States v. Jennifer French
2014 U.S. App. LEXIS 6348
| 9th Cir. | 2014Background
- Jennifer and Darin French operated an eBay-based appliance reseller (LWWG) that took about $1.6 million from customers but purchased only ~10% of appliances; many customers never received goods or refunds. 46 customers who paid by check lost $325,875.
- A superseding indictment charged both with multiple counts of mail fraud, wire fraud, and money laundering; both defendants elected to proceed pro se after extensive Faretta colloquies.
- During trial the district court suggested that if one spouse testified, the other could question that witness; Jennifer allowed Darin to conduct her direct and re-direct examination.
- After a nine-day jury trial Jennifer was convicted of 22 counts (mail and wire fraud and two money-laundering counts) and sentenced to 24 months (substantially below guidelines).
- On appeal Jennifer argued her Faretta waiver was invalid, that allowing Darin to question her violated her self-representation right, that jury instruction on intent was erroneous, and that evidence was insufficient for some convictions.
Issues
| Issue | French's Argument | Government's / Other Argument | Held |
|---|---|---|---|
| Validity of Faretta waiver | Waiver was not knowing/intelligent — court failed to warn about multi-defendant conflict risk and she was coerced by husband | District court conducted a thorough colloquy; warnings were adequate; French actively participated and affirmed waiver | Waiver was knowing, intelligent, voluntary; no reversal |
| Right to self-representation when co-defendant (lay) questions witness | Allowing Darin (nonlawyer, interested party) to examine Jennifer on the stand violated her Faretta/McKaskle right to control her case | Jennifer acquiesced; she led pretrial work, gave opening/closing, cross-examined witnesses; arrangement was tactical and she retained control | No Sixth Amendment violation found given total record; any lay-representation error harmless |
| Sufficiency of evidence for mail/wire fraud | Lacked requisite intent; she was dominated/controlled by Darin | Circumstantial evidence showed Jennifer communicated with customers, made false assurances, and continued operations after losing supplier; intent can be inferred | Evidence sufficient for mail and wire fraud convictions |
| Sufficiency of evidence and instruction for money laundering counts | Insufficient proof that Jennifer personally engaged in transactions or knew/controlled certain accounts; instruction failed to define "proceeds" as "profits" | Government relied on transfers and testimony about using E*Trade funds to run business | Reversed two money-laundering convictions (§1957 and §1956) and found instructional error on proceeds; remand for resentencing |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (defendant has Sixth Amendment right to self-representation when waiver of counsel is voluntary, knowing, and intelligent)
- Iowa v. Tovar, 541 U.S. 77 (2004) (no fixed script required for Faretta colloquy; court must ensure waiver is knowing)
- United States v. Gerritsen, 571 F.3d 1001 (9th Cir. 2009) (reviewing waiver by looking to the whole record; focus on defendant’s understanding)
- United States v. Hayes, 231 F.3d 1132 (9th Cir. 2000) (model language and guidance for Faretta colloquies)
- McKaskle v. Wiggins, 465 U.S. 168 (1984) (limits on standby counsel and defendant’s right to control the presentation of his case)
- United States v. Erskine, 355 F.3d 1161 (9th Cir. 2004) (elements of valid Faretta waiver)
- United States v. Rogers, 321 F.3d 1226 (9th Cir. 2003) (intent to defraud may be proven by circumstantial evidence)
- United States v. Wilkes, 662 F.3d 524 (9th Cir. 2011) (elements of money-laundering under §1956)
- United States v. Santos, 553 U.S. 507 (2008) (interpretation of "proceeds" in money-laundering context)
- United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009) (fact-specific inquiry whether use of property constituted proceeds tied to scheme)