Argued and Submitted, San Francisco, California March 13, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:08-cr-00006-LRH-WGC-2. Larry R. Hicks, District Judge, Presiding.
Michael J. Kennedy (argued), Chief Assistant Federal Public Defender, Rene Valladares, Federal Public Defender, Dan C. Maloney, Research & Writing Attorney, Reno, Nevada, for Defendant-Appellant.
Elizabeth Olson White (argued), Assistant United States Attorney, Daniel G. Bogden, United States Attorney, Robert L. Ellman, Appellate Chief, Reno, Nevada, for Plaintiff-Appellee.
Before: John T. Noonan, Raymond C. Fisher, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen; Dissent by Judge Noonan.
NGUYEN, Circuit Judge:
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.
I. The Scheme to Defraud
The Frenches operated an online eBay-based business, Look What We Got (" LWWG" ). According to the indictment, the Frenches used their online business to defraud customers as follows: LWWG held itself out as being able to order high-end kitchen appliances directly from manufacturers which it could re-sell at a discount. In actuality, however, most major appliance lines had explicitly declined LWWG's request to become an authorized dealer. One such company, Viking, even sent LWWG a cease-and-desist letter demanding that LWWG remove all references to Viking products from its website.
LWWG artificially established a positive feedback record at eBay by creating fake merchandiser accounts to write positive reviews for LWWG. The company also structured transactions in a way that prevented actual customers from leaving feedback on the company's eBay seller profile. Consumers who expressed interest in purchasing appliances from LWWG were directed away from the eBay platform and on to a website for LWWG. They would then receive an email with pricing and purchasing information from " Jennifer" at firstname.lastname@example.org. This structure gave consumers the false impression that they were purchasing products through eBay, when
in fact the transactions were not conducted on the eBay platform.
Between June 1 and October 8, 2004, LWWG collected $1.6 million in customer payment, but spent only $105,422.07--approximately 10 percent of that amount--on appliances. LWWG accepted payments for appliances by credit card (American Express and Discover), money order, and wire transfer. It then failed to fill hundreds of purchase orders. Many customers who tried to contact LWWG to check on the whereabouts of their merchandise never received a response. Others were contacted by Jennifer French via phone or email. On numerous occasions, French plied unhappy consumers with excuses for the delay in delivery. Other times, she simply promised them a refund.
LWWG's customers never received any of the promised refunds. Instead, large sums of money were transferred from LWWG's account to the Frenches' joint personal checking account and used to purchase, among other things, a Ford Excursion, a Ford pickup truck, and a $50,880 Bayliner boat. Money from LWWG's account was also transferred to Darin's personal E*Trade account where it was used to purchase stock.
In total, LWWG defrauded its customers out of more than $1.5 million. Eventually, 80 percent of customers were reimbursed by the credit card companies for their loss. However, the 46 customers who paid with personal or cashier's checks lost a combined total of $325,875.00.
II. Post-Indictment Proceedings
On April 29, 2009, a grand jury returned a superseding indictment, charging Jennifer and Darin French with multiple counts of mail fraud in violation of 18 U.S.C. § 1341; wire fraud in violation of 18 U.S.C. § 1343; and money laundering in violation of 18 U.S.C. § 1957 and 18 U.S.C. § 1956(a)(1)(B)(i). In August 2010, after numerous changes of counsel and nine continuances, Jennifer and Darin both moved to proceed pro se .
The district court held a hearing on their Faretta motions lasting approximately five hours over the course of two days. Although the court conducted the hearing--including sealed portions--in the presence of both Jennifer and Darin, it addressed each defendant separately. Jennifer had done most of the legal research in light of Darin's incarceration for a different appliance-related fraud scheme, and she was the dominant speaker at the Faretta hearing.
During this hearing, the district court repeatedly implored the Frenches to maintain their attorney representation. Indeed, the court explicitly stated that it could not " impress on [them] enough how important I think it is that [they] have counsel in this case." The district court then cataloged the many " dangers and disadvantages of representing yourself," warning the Frenches that they would be up against skilled, highly-trained government prosecutors and be disadvantaged in a variety of respects. Upon concluding its discussion, the court suggested that the Frenches might " want a moment to discuss it with your counsel or discuss it with each other." Jennifer interjected, saying:
I appreciate all your eloquent words, and I do feel that I need a moment because, after listening to you, you have me terrified.
The court then took a recess at Darin's request. Twenty minutes later, Darin assured
the court he had elected to represent himself. Jennifer individually assured the court that she had made the same choice.
THE COURT: Okay. Mrs. French, is that your desire [to represent yourself] as well?
JENNIFER FRENCH: Yes, Your Honor.
After hearing from the government, the court then canvassed each defendant individually. Jennifer stated that her decision to represent herself was a " knowing, intelligent, and voluntary request," made in good faith, and that she understood the penalties relating to each count in the indictment. The court thus concluded that her waiver of counsel was knowing, intelligent and voluntary. It granted Jennifer's request for a continuance, and continued the trial for six months to give the Frenches time to prepare.
On January 13, 2011, during a pretrial conference, the district court raised a potential issue regarding trial presentation in the event either Jennifer or Darin elected to testify, stating:
With regard to the trial itself, I want to inform the Frenches . . . how we approach this so you can be preparing accordingly . . . .
[I]t seems to me, that the best way for you to present evidence in the defense case would be for one of you to question the other while the other is testifying. But that's up to you . . . I just alert you that I would accept that approach if that was the way you wanted to approach it.
So, to be clear here . . . both of you have an absolute privilege not to testify . . . . But in the event that you do choose to testify, the normal rule would be that you have to identify the question you're asking yourself; and then if the question is not objectionable in one form or another, the Court will clear it and you may proceed with the answer.
That is very awkward in front of a jury because you have to ask yourself the question before you can answer the question, and the government has to have an opportunity to interpose its objection. It's for that reason that I suggest that if one of you is testifying that the other one be questioning the one who is testifying.
But I'm not requiring that. I'm just saying that's an easier way to go. It may make your case go more smoothly.
III. Trial and Post-Trial Proceedings
The trial commenced on February 8, 2011. On the fourth day of trial, the district court reiterated its earlier suggestion regarding the method of testimony, stating:
I think the smoothest way for someone -- either of you to testify in this case, is if the other one questions that witness because, otherwise, you're in the situation where you're going to be up in the witness box, and you need to indicate what your next question is that you would like to answer.
So you're phrasing your question, you're giving the government an opportunity to object, and then ...