*1 play no here. proach has role See Des-
camps,
It follows that should not have been assessed a “crime of violence” enhancement under U.S.S.G. 2L1.2(b)(l)(A).
§ vacate his sentence re-sentencing and remand for without the enhancement.
VACATED and REMANDED. America,
UNITED STATES of Plaintiff-Appellee, Lynn FRENCH, Defendant-
Appellant. No. 12-10185. Appeals, United States Court of Ninth Circuit. Argued and Submitted March April Filed
Michael Kennedy (argued), J. Chief As- Defender, sistant Federal Public Rene Val- ladares, Defender, Federal Public Dan C. Maloney, Research Writing & Attorney, Reno, NV, for Defendant-Appellant. Elizabeth Olson (argued), White Assis- tant Attorney, United States Daniel G. Bogden, United Attorney, Robert Reno, NV, support French’s con- Chief, for was insufficient Ellman, Appellate L. counts, money laundering victions on two Plaintiff-Appellee. improperly instructed as and the charges. therefore to one of these in part and reverse French’s part affirm address We need convictions. claims and remand for sentencing French’s of her re-sentencing light of the reversal NOONAN, T. Before: JOHN money laundering convictions on the FISHER, and C. RAYMOND counts. NGUYEN, H. Circuit JACQUELINE Judges.
BACKGROUND OPINION *4 Defraud I. The Scheme
NGUYEN, Judge: Circuit eBay- an online operated The Frenches (“French” or “Jenni- Jennifer French business, Look What We Got based fer”) convictions and sentence appeals her (“LWWG”). indictment, According to fraud, money fraud, and mail for wire online business to the Frenches used their French charges against The laundering. as follows: LWWG defraud customers (“Da- then-husband, Darin French and her high- being itself out as able to order held rin”), allegations that were based on directly from man- appliances end kitchen by tricking defrauded customers Frenches at a dis- it could re-sell ufacturers which for making payments into advanced them however, major most actuality, count. appliances which were high-end kitchen explicitly declined lines had appliance trial, Prior to both Jenni- delivered. never authorized request to become an LWWG’s pro proceed se. fer and Darin elected Viking, even company, One such dealer. trial, nine-day jury they were Following a letter de- a cease-and-desist sent LWWG convicted. both refer- remove all manding that LWWG two Sixth appeal, French raises On from its website. Viking products ences to claims, mer- of which Amendment neither First, we her convictions. its reversal of positive artificially established LWWG right that French’s waiver of hold creating fake eBay by feedback record voluntary, knowing, and intel- counsel was positive accounts to write merchandiser that, Second, during ligent. we conclude company also reviews LWWG. trial, self-representation French’s way pre- in a transactions structured adopted the violated when she was not leaving feed- actual customers from vented Darin suggestion permit district court’s profile. eBay seller company’s on the back exami- and re-direct conduct her direct in pur- expressed interest who Consumers nation. di- were chasing appliances LWWG and eBay platform away from the rected that the evidence also contends
French They would to a website for LWWG. on support her convictions. was insufficient and pricing with receive an email then sufficient to that the evidence was We hold from “Jennifer” information purchasing mail for wire and her convictions support gave con- This structure ebay@lwwg.com. in- fraud, properly district court and the they were impression sumers the false rea regarding the mens structed through eBay, when products However, purchasing the evidence offenses. for these in fact the transactions were not conducted of mail fraud in violation of 18 U.S.C. 1341; on eBay platform. § wire fraud in violation of 18 1343; § U.S.C. money laundering in 8, 2004, Between June 1 and October § violation of 18 U.S.C. 1957 and 18 U.S.C. collected million in LWWG $1.6 customer 1956(a)(l)(B)(i). § In August after payment, spent only but $105,422.07 ap-— changes numerous of counsel and nine con- proximately percent of that amount—on tinuances, Jennifer and Darin both moved appliances.1 accepted LWWG payments to proceed pro se. (American for appliances by credit card The district held a hearing Discover), order, Express money their Faretta lasting motions approximate- wire transfer. It then failed to fill hun- ly five hours over the days. course of two purchase dreds of Many orders. custom- Although the court conducted the hear- ers who tried to contact LWWG to check ing including sealed portions — —in on the whereabouts of their merchandise presence Darin, of both Jennifer and it response. never received a Others were addressed each defendant separately. contacted phone via French Jennifer had done most legal of the re- email. occasions, On numerous light search in of Darin’s incarceration for plied unhappy consumers excuses for a different appliance-related scheme, fraud delay delivery. times, Other and she was the speaker dominant at the simply promised them a refund. Faretta hearing. LWWG’s customers never received *5 During this hearing, the district court of promised Instead, refunds. large repeatedly implored the Frenches to main- money sums of were transferred from tain attorney their representation. In- LWWG’s account to joint the Frenches’ deed, the court explicitly stated it that personal checking account and used to could “impress on enough [them] how purchase, among things, other a Ford Ex- important I think it [they] is that have cursion, truck, $50,880 a Ford pickup and a counsel in this case.” The district court Bayliner boat. Money from ac- LWWG’s then cataloged the many “dangers and dis- count was also transferred to per- advantages of representing yourself,” sonal E*Trade where it account was used warning the Frenches that they would be to purchase stock. up against skilled, highly-trained govern- total, LWWG defrauded its custom- prosecutors ment and be disadvantaged ers out of more than million. $1.5 Eventu- a variety respects. of Upon concluding its ally, percent of were customers reim- discussion, the suggested court that bursed the credit companies card for Frenches might “want a moment to dis- However, their loss. the 46 customers it your cuss with counsel or discuss it with paid personal who or cashier’s checks each other.” interjected, Jennifer saying: $325,875.00. a lost combined total of I appreciate your eloquent words, all and I do feel that I need a moment II. Proceedings Post-Indictment because, after listening you, you to me terrified. 29, 2009, April jury On a grand returned indictment, a superseding charging Jenni- The court then took a recess at Darin’s fer and Darin French with multiple counts request. Twenty later, minutes Darin as- high-end 1. Given that appliance major dealers are in which appliance dealers often write a line expensive of inventory, contracts, business with price gross floors into a mar- 90% retailers, competition stiff from gin highly other and in is unusual. you it and clear other, will the Court repre- to had elected he court sured answer. with the may proceed as- individually himself. sent a in front of very made the awkward had That is that the court sured yourself have to ask you because choice. same can answer you before French, is Okay. Mrs. THE COURT: to has government and the. question, yourself] represent [to your desire that its ob- interpose opportunity have an as well? sug- I reason It’s for that jection. Yes, Your FRENCH: JENNIFER testifying that is you that if one gest Honor. the one questioning be one the other the government, hearing After testifying. is who indi- defendant each canvassed then court just I’m that. requiring But I’m decision stated vidually. Jennifer It way go. that’s easier saying “knowing, intel- was a herself represent smoothly. go more your may make case made voluntary request,” and ligent, Proceedings understood faith, that she and Trial and Post-Trial good III. in- in the count to each relating penalties February commenced The trial concluded court thus dictment. trial, the dis- day of fourth 2011. On knowing, intelli- counsel waiver suggestion its earlier court reiterated trict granted It Jennifer’s voluntary. gent testimony, stat- the method regarding continuance, continued request ing: the French- to give months trial for six way for some- the smoothest I think prepare. es time case, testify in this you one—either 2011, during pretrial witness January questions that On if other one po- raised conference, otherwise, situa- because, you’re district presentation in the up regarding going trial be you’re issue tential tion where elected or Darin indicate box, need you either Jennifer event witness you *6 that stating: is testify, question your to next what like to answer. would itself, to I want the trial regard to With you’re question, your phrasing ap- you’re we ... how So Frenches inform the to opportunity government the preparing giving be you can so proach this no there’s you’re and then object, accordingly.... —if the answer going to you’re objection, way for me, best that to the seems [I]t is awk- And that question. next in the defense present evidence you to .... ward you question to one of be for would case you’re if that recommend So I would testifying. is the other other while the con- Mr. French testify, to going just you I alert you ... up to But that’s rely you and examination your duct if that approach accept I that would that. upon. it. approach to way you wanted the day of' the sixth testified Jennifer you of have ... both So, here to be clear sugges- court’s trial, adopting district testify.... to not privilege an absolute direct her to conduct Darin to allow to tion you do-choose in the event But Throughout examination. and re-direct be thát would normal rule testify, the terms Darin used testimony, Jennifer’s you’re question identify the you “our,” little making “us,” “we,” and such as if the and then asking yourself; his and Jen- distinguish between effort an- form or in one objectionable twice, nifer’s conduct. At least the court argued for the time first that Darin men- objections sustained from government tally and her, physically abused and that that Darin “trying to circumvent testi- he controlled both her and oper- LWWG’s fying by [improperly] trying get his ations. French further claimed that be- testimony in through his wife.” cause she believed everything her husband told including that oper- LWWG was jury began
The deliberations on the sev- her— legitimately ated therefore lacked day enth of trial. following The —she morning, intent defraud. The court denied the court received note from the jury motion, her declining to address issues asking: raised for the first time in her reply brief. regards intent, With when it comes to law, does, “ill” intent have to be French subsequently moved for recon- established start of compa- sideration, reiterating previous allega- ny or at throughout time the life of tions about domestic abuse. The district the company? court denied the untimely motion as and court, parties’ concurrence, unmeritorious. April 12, 2012, On French referred jury to an timely instruction telling filed of appeal, notice challenging jury to decide each against count convictions and sentence. separately, defendants and instructions re-
garding the elements wire fraud Jurisdiction fraud, mail the meaning of “intent to de- The district jurisdiction court had pursu fraud,” liability, co-schemers’ good ant § to 18 U.S.C. 3231. juris We have faith defense. The court provided also a diction pursuant § to 28 U.S.C. supplemental four-paragraph response, to Juan, United States v. 1137, 1140 which objected on grounds of re- (9th Cir.2013). dundancy. After almost days three deliberations, Discussion verdict, reached a convicting Jen- I. French’s Waiver Right (14 nifer of counts counts of mail fraud; Knowing, Was Intelligent, Counsel six fraud; counts of wire and two counts of Voluntary money laundering) and acquitting her of 30 counts, finding she did engage in crimi- challenges first the valid nal conduct on or before July ity of her waiver the right to counsel. Darin was convicted of 36 counts. The Sixth guarantees Amendment a defen dant proceed without counsel.
At the sentencing, the district court im-
*7
See
v. California,
Faretta
422
806,
U.S.
posed a
24
sentence of
imprison-
months of
820,
2525,
(1975).
95 S.Ct.
929 validity of a defendant’s assessing the In intelligently and competently in order to the may look waiver, reviewing court be he should self-representation, choose whole, was just what said not as a disad- dangers and record of aware made Gerritsen, 571 colloquy. so that Faretta self-representation, at the vantages of on properly knows is ‘he The focus at 1008. will establish F.3d the record understood, what is made his choice doing defendant] and [a he is “what what Id. understood.” open.’ or eyes said the court for requirements to meet Failure 835, 2525 95 S.Ct. Faretta, 422 U.S. prejudicial per se constitutes waiver valid ex rel. States v. United Adams (quoting a defendant’s of error, reversal requiring 269, 279, 63 S.Ct. McCann, 317 U.S. Erskine, at 1167. 355 F.3d See conviction. district (1942)). Although 268 L.Ed. 87 “formula any set recite need court to waive seeks who a defendant
script” to
A.
Tovar, 541 U.S.
counsel, Iowa v.
French,
the court’s
(2004),
According
we
1379, 158 L.Ed.2d
124 S.Ct.
she
because
guide district
was deficient
language
colloquy
Faretta
suggested
and dis
colloquies.
dangers
of
conducting Faretta
left “unaware
courts
in multi-
self-representation
Hayes,
advantages
States
of
United
See
Cir.2000).2
of
(9th
general,
dis-
where conflicts
prosecutions
1138-39
defendant
a defendant
court
faulting
ensure
By
must
exist.”3
trict courts
interests
charges
(1)
of the
of a
the nature
existence
her about
understands:
failing warn
(2)
penalties;
her;
possible
effectively
as
conflict,
against
potential
disadvantages of
(3)
dangers and
obligated
and
court
the district
serts
States v.
See United
self-representation.
substantive
potential
to a
her as
to advise
(9th
Cir.
Erskine,
F.3d
knowledge about
lacked
defense—that
2004).
scheme.
of
nature
fraudulent
however,
nature,
differs
this
warning of
A
knowingly
a defendant
“Whether
“pit
pro se
the sorts
materially from
right to coun
his
waived
intelligently
and
and
“dangers
phrase
to which
falls”
fact,
law and
a mixed
is
sel
has
self-representation”
disadvantages of
United
de novo.”
reviewed
to refer.
Cir.2010).
understood
generally
been
Hantzis,
and
evidence,
direct
appropriate
what
is
the fol-
suggested
Hayes, we
Specifically, in
witnesses, what mo-
examination
cross
language:
lowing
to make
when
you must make
tions
some
you
tell
about
now
court will
you
permit
to make
during the
trial
them
represent-
disadvantages of
dangers
rights
your
protect
motions and
post-trial
by the
to abide
will have
ing yourself. You
appropriate
constitutes
appeal, and what
if
lawyers
Even
do.
rules in
same
jury.
to the
closing argument
mistakes,
given no
be
you will
you make
1138-39.
F.3d at
benefits,
judge
privileges or
special
rep-
is
government
help you. The
will not
regarding
claims
French’s
address
first
3. We
trained,
prosecutor
skilled
by a
resented
col-
Faretta
court's
self-representation and
law and
criminal
experienced who
*8
how Darin
issue of
the
separate from
loquy,
prosecutor
the
Unlike
procedures.
testimony
during French’s
asking questions
case,
ex-
you will be
in this
you will face
representa-
French’s
dynamic of
changed the
disadvantages of
dangers and
posed to the
Later,
questioning,
address
we
tion.
of
selec-
complexities
knowing the
af-
conflict
for
opportunity
created
which
opening
permissible
tion,
what constitutes
colloquy,
ter
is admissible
jury, what
statement
explained,
As we have
phrase
“dan- Amendment
compel
did not
such an admo
gers
disadvantages”
does
92, 124
not mean
nition. Id. at
S.Ct. 1379.
judge
that “the
must serve
surrogate
as a
French asserts that the case-specific fac
lawyer for the
Hayes,
defendant.”
231 tors which must be considered under To-
Rather,
at
F.3d
purpose
of ad- var “surely include” the involvement of
vising a defendant about
dangers
and multiple defendants with possible conflicts
disadvantages
self-representation
of
is to
of interest.
in
Nothing
our case law re
ensure that he or she understands
quires such explicit advisement in the con
value
being
of
represented by counsel.
text of non joint representation.4
To
See
See United States v. Gillings, 568 F.2d var, 541
(a
U.S.
B.
wit,
personal participation
her active and
next address whether French’s
to
support
proceed pro
We
of her motion
to
was know
right
waiver of the
counsel
properly
se—the
found that
district
Gerritsen,
voluntary. The dis
ing, intelligent, and
voluntary.
her
See
waiver
and
trict court conducted an extensive
F.3d at
guided
our model
thorough colloquy,
by
foregoing,
on the
Based
we therefore
adequately apprised
It
French
language.
right
her
to coun-
hold that French waived
disadvantages
self-
dangers
of the
and
of
intelligently, and voluntari-
knowingly,
sel
alia,
to,
representation
inter
respect
ly-
statements,
selection,
closing
opening
evidentiary objections, framing
arguments,
Trial,
Right
During
to
II.
French’s
witnesses,
evi
questions
introducing
to
Self-Representation
Not
Was
Vio-
dence,
witnesses, making mo
examining
lated
record, procedural
preserving
and
a
tions
question—
turn next to
related
rules,
French
advocacy.
oral
While
whether
the trial court denied French’s
statement that she
makes much
her
it
right
self-representation
when
allowed
warnings, her
“terrified”
the court’s
Darin to
her direct and re-direct
conduct
claim that
actually belies her
trepidation
inquiry pres
This
examination at trial.
and intelli
knowing
her
was not
waiver
law
and fact
ents mixed
proceed
gent. That she was “terrified” of
subject
is
to de novo review. McKas
thus
fact,
was,
ing
suggests that she
pro se
168, 177, 104
Wiggins,
kle
465 U.S.
S.Ct.
self-
fully
grasp
to
the hazards of
able
Erskine,
(1984);
79 L.Ed.2d
representation.
right
denial of the
F.3d at 1166. Because
waiver,
voluntariness of her
As
structural,
it is
self-representation
that because
decision
French contends
not amenable to harmless error
therefore
proceed pro
“by-product”
se was a
McKaskle,
at 177 n.
465 U.S.
analysis.
emotional
physical
her husband’s
944;
Hazey,
see also Frantz
S.Ct.
abuse,
truly voluntary. Again,
it was not
(en banc).
(9th Cir.2008)
story.
a different
Not
the record tells
contends
Specifically,
only
expressly
did French
affirm that
testimony on
voluntary,
allowing
direct her
Darin to
proceed pro
se was
request
Faret-
infringed upon her “core”
the stand
was the dominant advocate at
ac
“preserve
McKaskle
to the
ta
under
hearing
response
on the motion.
presented
the case”
their
tual control over
questions about the
court’s
basis
44(c)
only
rep-
advisement.
sought
to mandate Rule
Since each
sent himself.
herself, it makes little sense
resent
himself
*10
jury. McKaskle,
Although French
may
her own
behalf
ceded con-
numerous
during
times
trol of her
trial.
husband,
examination to her
After
gave
Darin
she
opening
state-
ultimately
ment,
retained
gave
control over
she
her own separate
case
opening
presented to the jury. From
outset,
statement in which she
only
reiterated
gave
she
the district court every
the same
indication
theory
defense
advanced Da-
that she and her husband
present
would
rin’s opening,
but referred to herself and
coordinated defense, predicated on
Darin
the the-
defendants,”
“the
rather than as
ory
they
that
ran a legitimate, “innovative” individual
Similarly,
actors.
end
business that was simply unsuccessful.6 trial she followed Darin’s closing statement
As previously noted, Jennifer took the lead with her own
summation,
short
in which
in preparing pre-trial
(on
motions
behalf of
she again emphasized
and Darin
both
Darin),
herself and
actively
par- were failed
owners,
business
but not crimi-
ticipated in pre-trial hearings. She also nals. French also actively participated in
expressed concern about how seating ar-
the cross-examination
government
wit-
rangements in the courtroom could impair
nesses, separately questioning 10 different
ability
to confer with Darin throughout witnesses.7 At
point,
one
she even cor-
6. The "innovative”
plan
business
this,
was for
will
doing
from
which would somehow
purchase
LWWG to
full-priced appliances
eventually
profit.
translate to
suppliers,
and then
advantage
take
their status as a
corporation
Nevada
to sell to
questions
French's
generally
were
consis-
discount,
California consumers at a
without
tent with Darin's
strategy
defense
with one
collecting sales taxes. The
purport-
Frenches
exception: she asked one
witness a
ed to believe
they
generate
could
good
designed
point
out that the EUTade ac-
appear
to have counsel
before
elects
misimpression
court’s
the trial
rected
concerning
complaints
his
jury,
questioning
[her].”
husband
“[her]
*11
partic-
subsequent unsolicited
counsel’s
totality, we
in
record
Thus,
viewing
of their
lose much
force.
ipation
fair
a
afforded
that French
find
own case.8
her
present
to
chance
here,
182-83,
944.
too
at
S.Ct.
So
104
Id.
readily assented
that French
fact
con-
by French’s
persuaded
are we
Nor
her examina-
shaping
role in
husband’s
of
compels reversal
that McKaskle
tention
post-
“substantially undermines”
tion
McKaskle,
the Su-
In
her convictions.
her abili-
he interfered with
claim that
hoc
limitations
certain
imposed
Court
preme
in
of
own case
violation
to control her
ty
right
Faretta
proa
se defendant’s
protect
rights.
Id9
her Sixth Amendment
excessively intru-
against unsolicited
standby counsel.
by
participation
sive
however,
district
Importantly,
178-79, 104 S.Ct.
McKaskle,
at
U.S.
465
Jen-
that Darin conduct
suggestion
court’s
in
from McKaskle
differs
This case
944.
re-direct examination
nifer’s direct and
unlike Jenni-
respect:
one crucial
at least
rule
the well-settled
likely contravened
involvement
fer,
in
acquiesced Darin’s
who
created the
against lay representation
in
examination,
the defendant
in her
1654;
§
28 U.S.C.
opportunity
conflict.
standby
objected to
expressly
McKaskle
States, 486 U.S.
v. United
see also Wheat
is
This distinction
participation.
counsel’s
1692,
140
159,
100 L.Ed.2d
108 S.Ct.
because,
explained
as the Court
important
(“an
(1988)
is not a member
who
advocate
McKaskle,
in
(other
may
represent clients
the bar
not
of
himself)
court”);
County
v.
in
Johns
than
invitation
counsel
defendant’s
[a]
(9th
874, 876
Cir.
Diego,
F.3d
any
San
114
trial obliterates
in the
participate
(“While
1997)
non-attorney may appear
in question
participation
claim that
behalf,
author-
he has no
his own
pro se on
control over
defendant
deprived the
attorney for others
appear
ity
in-
when he
Even
own defense....
his
(internal quotation marks
himself.”
than
his Faretta
waiving
that he is
sists
rel.
omitted));
ex
United States
accord
solicitation
se defendant’s
rights,
pro
Flaherty,
F.3d 89
Mergent
Servs.
types
in certain
acquiescence
of or
Mfg.
(2d Cir.2008);
v. Lenc-Smith
Lewis
substantially
by counsel
participation
Cir.1986) (“[I]t
(7th
Co.,
784 F.2d
that
protestations
later
undermines
in
may appear
individual
clear that an
is
unacceptably....
[I]f
counsel interfered
through
only
se
pro
the federal courts
given
opportunity
a defendant
But,
ignoring
2525.
n.
95 S.Ct.
U.S. at 834
trans-
company
were
funds
which
count into
appointing stand
exclusively
problems
name.
that
practical
in
ferred was held
willing
question
presented,
indicates that she
such as
This
have
counsel would
her conduct
trial,
differentiate
and able to
is no
there
delay
serious
she so desired.
Darin’s when
would
record
in the
indication
way.
testify
other
any
have been inclined
Darin con-
suggesting that
Additionally, in
Newland,
Cooks
See
examination,
district court
duct Jennifer's
Cir.2005)
may ...
(“Standby counsel
ask herself
expressly
could
noted
proceedings, without
participate in trial
Darin
follow-up questions
defendant,
long as
so
express
consent
advantage of this
take
did not
She
asked.
‘seriously under
participation does
however.
opportunity,
jury’ that
before the
'appearance
mine[ ]’
could
the district court
We note
(citing
pro
proceeding
se.”
defendant is
French,
standby
to assist
appointed
counsel
944)).
McKaskle,
104 S.Ct.
465 U.S.
Faretta, 422
objection. See
even over her
counsel.”); Herrerar-Venegas v.
Sanchez-
to counsel. Given French’s valid
(1st
Rivera,
Cir.1982)
waiver,
Faretta
the Sixth Amendment
(“The
consistently
federal courts have
re-
right to counsel and the authorities cited
jected attempts
third-party lay repre-
by the
inapposite.
dissent are
By
may ap-
sentation.
law an individual
sum,
while we harbor substantial mis-
pear
only pro
federal courts
se or
givings about the
technique
examination
(citation omitted)).
through legal counsel.”
employed
case,
given
this
the considera-
But,
assuming
even
the district court ble evidence showing that French person-
erred in
regard,
this
the record does not
ally
indeed,
acceded
deliberately pur-
to—
*12
that,
support the conclusion
had Jennifer
sued—the same
theory
defense
that Darin
examination,
conducted her own
she would sought to
through
establish
testimony,
her
pursued
independent
defense we
right
hold that her
self-representa-
which placed
solely
the blame
on Darin.
tion was not violated.
Accordingly, any such error was harmless.
See United States
Spangle,
v.
626 F.3d III. The
Properly
District Court
De-
(9th
Cir.2010) (“Any
494
alleged viola-
nied French’s Motion for a New
tion
party’s statutory right
of a
to self-
Trial
representation is reviewed under a harm-
French also asserts
that she
less
(discussing
error standard.”
28 U.S.C.
was entitled to a new trial in the “interests
1654)).
§
justice”
because her husband’s abuse
finding
violation,
In
a constitutional
manipulation
precluded
pur
her from
dissent confuses the Sixth Amendment
suing
independent
her
defense.
Fed.
right
to counsel with the Sixth Amend-
33(a)
R.Crim.P.
(“Upon the defendant’s
right
ment
self-representation.
The dis-
motion, the court may
any judg
vacate
sent acknowledges that —in accordance
grant
ment and
a new trial if the interest
with Faretta —French waived her Sixth
justice
requires.”).
so
We review the
Amendment right to counsel and elected to
district court’s denial of a motion for a new
proceed pro se. The dissent
rightly
also
trial for abuse of discretion. See United
points out that the Sixth Amendment “af-
Moses,
(9th
States v.
496 F.3d
987
right
fords the
self-representation,”
but
Cir.2007). In determining whether a dis
not a right
“lay
representation.” See
discretion,
trict court abused its
apply
we
United
Wright,
States v.
568 F.2d
143
two-part
First,
test.
we determine de
(9th Cir.1978)
cases).
(citing
But the dis-
novo whether the court identified the cor
sent then arrives at the converse conclu-
legal
rect
rule
apply
to the relief re
lay representation
sion—that
in this case
quested.
Hinkson,
United
v.
States
585
violates the Sixth Amendment and consti-
(9th
Cir.2009) (en
F.3d
1261-62
tutes structural error.
banc).
so,
If
we then consider “whether
French
argues
nowhere
that her Sixth the trial court’s application of the correct
Amendment right to counsel was violated.
(1)
legal
(2)
standard was
‘illogical,’
‘im
Instead, as
correctly
recognized, the
(3)
plausible,’ or
without ‘support in infer
question is whether her right
represent
may
ences that
be drawn from the facts in
herself
compromised.
dissent,
”
on the record.’
Id.
hand,
the other
in concluding that
French’s Sixth
Amendment
was vio-
French
satisfy
fails to
this stan
lated,
solely
relies
on
involving pur-
cases
dard. The district court stated the correct
ported violations of the Sixth
legal
Amendment
standard in denying both her initial
support
her
was insufficient
evidence
motion to recon-
trial and
for a new
motion
a district court’s
review
Nor
convictions. We
trial motion.
of her new
denial
sider
de novo. Unit-
of a Rule 29 motion
illogi- denial
of this standard
application
was its
Wiggan,
v.
in the
ed States
support
cal,
or without
implausible,
Cir.2012).
assessing a suffi-
When
did not raise
record. Because
challenge, we must con-
ciency
un-
of evidence
alleged abuse
about
arguments
at trial in the
presented
the evidence
jury ver-
sider
days
after the
than
til more
prosecution.
most favorable to the
light
its
dict,
did not abuse
district court
Nevils,
598 F.3d
untimely
States
deeming
motion
United
discretion
(en banc).
(9th Cir.2010)
33(b)(2).
thenWe
Fed.R.Crim.P.
under
evidence,
viewed, this
so
“whether
ask
Mack,
French relies
United
fact
allow
rational trier of
adequate to
(9th Cir.2004),
Rodgers v.
of the crime
to find the essential elements
(9th Cir.2012),
Marshall,
with French about their orders. Addition- argues French that this conviction should ally, the during evidence showed that be reversed because there was no evi summer of LWWG increased its rev- she, opposed dence that to her hus appliances, yet enue from sales of de- band, engaged monetary in a transaction inventory creased its considerably. relating purchase to the of this truck. We agree. government any fails to cite
Viewing
light
the evidence
most
evidence—and we are aware of none—
prosecution,
must,
favorable to the
as we
supporting
particular
this
count of
in
we believe a rational
trier of fact could
dictment as to Jennifer French. To the
beyond
have found
a reasonable doubt that
contrary,
only
pertaining
evidence
possessed
requisite
intent
testimony
Count
from a manager at
defraud. Accordingly, French’s sufficiency
Ford that Darin was the individual who
challenge
of evidence
respect
fails with
truck,
bought the
and that
signed
he alone
her convictions for mail and wire fraud.
the transaction documents. Because the
government has
pointed
evi
B.
*14
dence from which a rational trier of fact
could infer that
knowingly
French
en
challenges
also
the suffi
gaged in monetary
transaction involving
ciency of
supporting
evidence
her convic
property
criminal
in purchasing
pickup
the
tions of
money
two counts of
laundering.
truck, her conviction for money laundering
We turn first to
money
her conviction of
pursuant
§to
1957 cannot stand.11
in
laundering
1957,
§
violation of 18 U.S.C.
as charged in Count 61 of the indictment.
agree
We also
with French that
the
Criminal liability
§
attaches under
1957 government failed to adduce sufficient evi
(1)
where a defendant
knowingly engages
support
dence to
her conviction money
for
(2)
transaction,
in a monetary
knowing
in
laundering
violation of 18 U.S.C.
that
the transaction involved criminal
1956(a)(1)(B),
§
charged
as
in Count 62.
(3)
property,
property’s
the
value exceeds
$40,000
This charge was based on a
trans
(4)
$10,000,
property
derives from fer of funds from LWWG’s bank account
10. Mail
"specified
fraud is listed as a
unlaw-
purchases
based on the
pickup
of the
truck
activity.”
1957(f)(3);
ful
§
18 U.S.C.
18
French,
and boat. See United States v. Darin
1956(c)(7)(A);
1961(1).
§
U.S.C.
§
18 U.S.C.
(9th Cir.2012).
Fed.Appx.
494
784
The same
reasoning applies here—whether the French-
11. We also find instructional error with re-
appliances
es’ use of the truck to deliver
gard to Count 61 because the court failed to
component
a "central
of the scheme” under
"proceeds”
"profits”
define
under United
Alstyne,
United
States Van
der Jury Instruction Supplemental V. *15 prosecution. the light the most favorable Plainly Erroneous Not Was which formed the transactions Unlike the district contends that French also laundering money the basis of other supplemental formulating in court erred indictment, the funds in the charges meaning of regarding jury instruction were not transferred issue Count objected to Because French “ill intent.” to the Frenches’ from LWWG’s account a different instruction supplemental account; they went the West joint Bank of ap raises on she now than basis trial account held exclu- an E*Trade directly to See Unit applies. review plain error peal, is Notably, there in Darin’s name. sively Toro-Barboza, v. Del ed States indicating record evidence no Cir.2012). 1136, 1152 account, let to this had access deliberations, the day of the second On mon- transferred personally alone that she a note: jury submitted be the it, the funds to knowing ey into intent, it comes when regards With Contrary to activity. proceeds unlawful to be law, “ill” intent does contention, that French government’s compa- of the from the start an established had her husband aware that added); ny throughout phasis or at time the life of see also United company? (9th Cir.2010) Hofus, 598 F.3d (stating that the relevant inquiry for a Following parties, discussion with the reviewing court is “whether the instruc jury court referred the to an instruction tions as a whole are misleading inade telling sepa- them to consider each count (em quate guide jury’s deliberation” rately, as to regarding as well instructions added)). viewed, phasis So the district aiding abetting, elements of mail court’s fraud, supplemental instruction was not fraud, elements of wire the defini- plainly jury defraud,” erroneous. The instructions tion of “intent to co-schemer lia- clearly as a whole bility, repeatedly articulat good faith. After continued discussions, “knowing ed the participation” the court element of supplemen- issued Moreover, any tal the offense. ambigu instruction that included the minor following language: ity regarding meaning of “ill intent” likely prejudicial was not in light of the
Your concerns intent and the clear instruction that the “good faith of a timing of intent. As reflected in the complete defendant is a instructions, defense” because necessary element of mail it is “inconsistent with the intent to de fraud and wire fraud an is intent required fraud defraud; is, all mail fraud and wire intent to deceive or Moran, fraud offenses.” cheat at the time of 493 F.3d at alleged the offense Cf. against (upholding each instructions defendant. that had a ambiguity” “minor after a picking “careful The intent to defraud must have existed apart” of the wording). Accordingly, we at the alleged time offense. How- reject French’s challenge to the ever, supple jury is entitled to consider all mental instruction. of the bearing upon evidence intent as it may relate to intent at the time of the
charged offense. Conclusion argues focusing Based on the foregoing, we affirm exclusively on the intent-to-defraud ele French’s convictions of mail and wire fraud, ment of mail and wire the trial fraud, reverse her convictions money supplemental court’s instruction “diluted” laundering, and remand for re-sentenc- aspect another of criminal intent —the ele ing.12
ment of “knowingly participating in a part; AFFIRMED in REVERSED scheme.” recognize ambiguity in part. herent in jury’s question; it was un query clear whether their about “ill intent” NOONAN, Judge, Circuit dissenting; pertained only to the intent-to-defraud ele ment, Today, or to the the majority approves broader mens rea. How as harm- ever, inquiry the crucial less the juncture at this examination at trial pro of a se *16 “how the by interested, would have defendant an reasonably non-lawyer un co- derstood challenged instruction in the defendant. Because this result is uncon- context of the instructions as a stitutional representation whole.” and because by a Moran, United 1002, States v. lay person 493 F.3d directly bears on the “frame- (9th Cir.2007) curiam) (em- 1009-10 (per work within which the trial proceeds,” Ari- however, 12. Because the matter is remanded procedural for sen- that her claim of error is tencing, we need not by address French’s sen- foreclosed our decision United v. tencing note, appeal. (9th Cir.2012). claims raised Vasquez-Cruz, We 692 F.3d 1001
939
sixth
310,
history
of the
279,
language or
Fulminante,
111
499 U.S.
v.
zona
contem
to the Constitution”
(1991),
amendment
1246,
302
L.Ed.2d
113
S.Ct.
by per
representation
plates permitting
and not amenable
is structural
defect
attorneys.
qualified
are not
who
Wiggins,
sons
McKaskle v.
error. See
harmless
142,
568 F.2d
143
944,
Wright,
v.
79 United States
8,
168,
n.
104 S.Ct.
177
465 U.S.
Cir.1978).
(9th
Indeed, lay representation
(1984).
122
L.Ed.2d
objectives of the Sixth
would obstruct
the Sixth
the text of
begin with
We
Amendment,
further
Id.
“not
them.”
prosecu
Amendment,
all criminal
“[i]n
mean,”
may
the Su
else it
“Whatever
...
right
tions,
enjoy the
the accused shall
right
“the
explained,
preme Court has
for his
of Counsel
the Assistance
to have
Four
by the Sixth and
granted
counsel
Const,
This
VI.
amend.
defence.” U.S.
a
at least that
means
Amendments
teenth
a
defendant
guarantees
criminal
provision
lawyer
help
of a
person is entitled
his defense
of counsel
appointment
judicial proceed
the time that
at or after
stages
prosecution.
of the
critical
at all
against him.”
initiated
ings have been
335, 343-
Wainwright, 372 U.S.
v.
Gideon
Williams,
387, 398, 97
430 U.S.
Brewer v.
(1963).
792,
44,
“The such cases is that one to practice never admitted law and acquired therefore who never the thresh- qualification represent old client court cannot allowed to ... be do so purposes of the Amendment.” Sixth Unit- Mouzin,
ed 785 F.2d Cir.1986). See, agree. Other circuits e.g., States, Solina v. United (2d Cir.1983); States, Harrison v. United (D.C.Cir.1967). 212-14 governing representation by
Rules coun- sel are of long English fruits and American Faretta,
experience. See U.S. 821- 33, 95 S.Ct. These rules are not to lightly disregarded
be in the interest of efficiency or in order things along. to move was, Well-intentioned as judge the trial he authority had no to suggest that a non- lawyer less an interested co-defen- —much represent defendant, a criminal nor dant —
did that defendant any right to be one, represented by herself, other than who is not a member of the bar. Without
the assistance of counsel and after losing represent herself at a critical trial,
stage at her Jennifer was convicted of a serious federal crime. Her conviction
cannot stand. HENRY,
Graham S. Petitioner- Appellant, RYAN, Respondent- Charles L.
Appellee. No. 09-99007. Amy Kapp, E.B. Assistant Federal Pub- United Appeals, States Court of Defender, lic Office of the Federal Public Ninth Circuit. Defender, Konrad, Robin Esquire, C. As-
April Defender, sistant Federal Public FPDAZ- Office, Phoenix,
Federal Public Defender’s AZ, for Petitioner-Appellant.