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.
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 ebay@lwwg.com. This structure gave consumers the false impression that they were purchasing products through eBay, when
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'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.
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:
The court then took a recess at Darin's request. Twenty minutes later, Darin assured
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:
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:
Jennifer testified on the sixth day of trial, adopting the district court's suggestion to allow Darin to conduct her direct and re-direct examination. Throughout Jennifer's testimony, Darin used terms such as "we," "us," and "our," making little effort to distinguish between his and Jennifer's
The jury began deliberations on the seventh day of trial. The following morning, the court received a note from the jury asking:
The court, with the parties' concurrence, referred the jury to an instruction telling the jury to decide each count against the defendants separately, and instructions regarding the elements of wire fraud and mail fraud, the meaning of "intent to defraud," co-schemers' liability, and good faith defense. The court also provided a supplemental four-paragraph response, to which Jennifer objected on grounds of redundancy.
After almost three days of deliberations, the jury reached a verdict, convicting Jennifer of 22 counts (14 counts of mail fraud; six counts of wire fraud; and two counts of money laundering) and acquitting her of 30 counts, finding she did not engage in criminal conduct on or before July 12, 2004. Darin was convicted of 36 counts.
At the sentencing, the district court imposed a sentence of 24 months of imprisonment, which represents a substantial downward variance from French's advisory guidelines sentencing range of 46-57 months. French subsequently moved for a new trial under Federal Rule of Criminal Procedure 33, arguing that a new trial was warranted on grounds of instructional error and insufficiency of evidence. In response to the government's opposition brief, she filed a "reply" that raised a number of new assertions. Notably, she argued for the first time that Darin mentally and physically abused her, and that he controlled both her and LWWG's operations. French further claimed that because she believed everything her husband told her — including that LWWG was operated legitimately — she therefore lacked the intent to defraud. The court denied her motion, declining to address issues raised for the first time in her reply brief.
French subsequently moved for reconsideration, reiterating her previous allegations about domestic abuse. The district court denied the motion as untimely and unmeritorious. On April 12, 2012, French timely filed a notice of appeal, challenging her convictions and sentence.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. United States v. Juan, 704 F.3d 1137, 1140 (9th Cir.2013).
French first challenges the validity of her waiver of the right to counsel. The Sixth Amendment guarantees a defendant the right to proceed without counsel. See Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "Because a defendant who exercises the right to self-representation foregoes the benefits of exercising the right to counsel, the accused must knowingly and intelligently forego those relinquished benefits." United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.2009) (citation omitted). As the Supreme Court explained in Faretta:
Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Although a district court need not recite any set "formula or script" to a defendant who seeks to waive counsel, Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), we have suggested language to guide district courts in conducting Faretta colloquies. See United States v. Hayes, 231 F.3d 1132, 1138-39 (9th Cir.2000).
"Whether a defendant knowingly and intelligently waived his right to counsel is a mixed question of law and fact, reviewed de novo." United States v. Hantzis, 625 F.3d 575, 579 (9th Cir.2010). In assessing the validity of a defendant's waiver, a reviewing court may look to the record as a whole, not just what was said at the Faretta colloquy. Gerritsen, 571 F.3d at 1008. The focus is properly on "what [a defendant] understood, not what the court said or understood." Id. at 1010. Failure to meet the requirements for a valid waiver constitutes per se prejudicial error, requiring reversal of a defendant's conviction. See Erskine, 355 F.3d at 1167.
According to French, the court's Faretta colloquy was deficient because she was left "unaware of the dangers and disadvantages of self-representation in multi-defendant prosecutions where conflicts of interests exist."
French relies on the Supreme Court's reference to "case-specific factors" in Tovar, 541 U.S. at 88, 124 S.Ct. 1379, to support her contention that the court was required to provide a conflict advisement as part of its Faretta colloquy. This argument, however, is inconsonant with Tovar's actual holding. The question in Tovar was whether the Sixth Amendment requires a trial court to specifically warn defendants that "waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked." Tovar, 541 U.S. at 81, 124 S.Ct. 1379. Writing for a unanimous court, Justice Ginsburg opined that the Sixth Amendment did not compel such an admonition. Id. at 92, 124 S.Ct. 1379.
French asserts that the case-specific factors which must be considered under Tovar "surely include" the involvement of multiple defendants with possible conflicts of interest. Nothing in our case law requires such explicit advisement in the context of non joint representation.
Nor do we agree with French that Gillings, 568 F.2d 1307, is instructive. In Gillings, we held that although Francis Gillings knowingly and intelligently waived his right to counsel in a prosecution for tax-related crimes, his wife and co-defendant, Ruth Gillings, did not. Id. at 1309. We reasoned that Ruth's participation in the colloquy consisted of merely pro forma answers to pro forma questions at the very end of the hearing. Id. Here, in contrast, French participated significantly in the extensive colloquy conducted by the district court. Moreover, because no conflict of interest issue was implicated in Gillings, the case provides scant support for French's position.
We next address whether French's waiver of the right to counsel was knowing, intelligent, and voluntary. The district court conducted an extensive and thorough colloquy, guided by our model language. It adequately apprised French of the dangers and disadvantages of self-representation with respect to, inter alia, jury selection, opening statements, closing arguments, evidentiary objections, framing questions to witnesses, introducing evidence, examining witnesses, making motions and preserving a record, procedural rules, and oral advocacy. While French makes much of her statement that she was "terrified" by the court's warnings, her trepidation actually belies her claim that her waiver was not knowing and intelligent. That she was "terrified" of proceeding pro se suggests that she was, in fact, fully able to grasp the hazards of self-representation.
As to the voluntariness of her waiver, French contends that because her decision to proceed pro se was a "by-product" of her husband's physical and emotional abuse, it was not truly voluntary. Again, the record tells a different story. Not only did French expressly affirm that her request to proceed pro se was voluntary, she was the dominant advocate at the hearing on the motion. In response to the court's questions about the basis for their Faretta request, French listed numerous motions, evidentiary requests, and discovery requests which she thought counsel should have filed with the court; she discussed defects she perceived in the indictment; she named material witnesses who had not yet been interviewed; and she discussed her distrust of counsel. Given the objective indicia of voluntariness — to wit, her active and personal participation in support of her motion to proceed pro se — the district court properly found that her waiver was voluntary. See Gerritsen, 571 F.3d at 1008.
Based on the foregoing, we therefore hold that French waived her right to counsel knowingly, intelligently, and voluntarily.
We turn next to a related question — whether the trial court denied French's right of self-representation when it allowed Darin to conduct her direct and re-direct examination at trial. This inquiry presents a mixed question of law and fact and thus is subject to de novo review. McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Erskine, 355 F.3d at 1166. Because denial of the right to self-representation is structural, it is therefore not amenable to harmless error analysis. McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. 944; see also Frantz v. Hazey, 533 F.3d 724, 728 (9th Cir.2008) (en banc).
Specifically, French contends that allowing Darin to direct her testimony on the stand infringed upon her "core" Faretta right under McKaskle to "preserve actual control over the case" presented to
Although French may have ceded control of her examination to her husband, she ultimately retained control over the case presented to the jury. From the outset, she gave the district court every indication that she and her husband would present a coordinated defense, predicated on the theory that they ran a legitimate, "innovative" business that was simply unsuccessful.
Further, the evidence suggests that the testimonial arrangement which French now claims violated her Sixth Amendment rights was, at the time, a deliberate tactical decision. On at least two occasions, she inquired about the admissibility of Darin's prior felony conviction for a different scheme. In response, the court explained that such evidence could come in if Darin were to testify. French's manifest concern about keeping Darin's prior fraud conviction out of evidence strongly supports an inference that, to the extent Darin used her as a mouthpiece at trial, it was in furtherance of a strategy to which she acceded.
Moreover, even assuming that Darin controlled her examination (and that she played no part in crafting the questions asked of her on the stand), Jennifer spoke on her own behalf numerous times during trial. After Darin gave an opening statement, she gave her own separate opening statement in which she not only reiterated the same defense theory advanced in Darin's opening, but referred to herself and Darin as "the defendants," rather than as individual actors. Similarly, at the end of trial she followed Darin's closing statement with her own short summation, in which she again emphasized that she and Darin were failed business owners, but not criminals. French also actively participated in the cross-examination of government witnesses, separately questioning 10 different witnesses.
Nor are we persuaded by French's contention that McKaskle compels reversal of her convictions. In McKaskle, the Supreme Court imposed certain limitations to protect a pro se defendant's Faretta right against unsolicited and excessively intrusive participation by standby counsel. McKaskle, 465 U.S. at 178-79, 104 S.Ct. 944. This case differs from McKaskle in at least one crucial respect: unlike Jennifer, who acquiesced in Darin's involvement in her examination, the defendant in McKaskle expressly objected to standby counsel's participation. This distinction is important because, as the Court explained in McKaskle,
Id. at 182-83, 104 S.Ct. 944. So too here, the fact that French readily assented to her husband's role in shaping her examination "substantially undermines" her post-hoc claim that he interfered with her ability to control her own case in violation of her Sixth Amendment rights. Id.
Importantly, however, the district court's suggestion that Darin conduct Jennifer's direct and re-direct examination likely contravened the well-settled rule against lay representation and created the opportunity for conflict. 28 U.S.C. § 1654; see also Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) ("an advocate who is not a member of the bar may not represent clients (other than himself) in court"); Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ("While a non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for others than himself." (internal quotation marks omitted)); accord United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89 (2d Cir.2008); Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir.1986) ("[I]t is clear that an individual may appear in the federal courts only pro se or through
But, even assuming the district court erred in this regard, the record does not support the conclusion that, had Jennifer conducted her own examination, she would have pursued an independent defense which placed the blame solely on Darin. Accordingly, any such error was harmless. See United States v. Spangle, 626 F.3d 488, 494 (9th Cir.2010) ("Any alleged violation of a party's statutory right to self-representation is reviewed under a harmless error standard." (discussing 28 U.S.C. § 1654)).
In finding a constitutional violation, the dissent confuses the Sixth Amendment right to counsel with the Sixth Amendment right to self-representation. The dissent acknowledges that — in accordance with Faretta — French waived her Sixth Amendment right to counsel and elected to proceed pro se. The dissent also rightly points out that the Sixth Amendment "affords the right of self-representation," but not a right to "lay representation." See United States v. Wright, 568 F.2d 142, 143 (9th Cir.1978) (citing cases). But the dissent then arrives at the converse conclusion — that lay representation in this case violates the Sixth Amendment and constitutes structural error.
French nowhere argues that her Sixth Amendment right to counsel was violated. Instead, as she correctly recognized, the question is whether her right to represent herself was compromised. The dissent, on the other hand, in concluding that French's Sixth Amendment right was violated, relies solely on cases involving purported violations of the Sixth Amendment right to counsel. Given French's valid Faretta waiver, the Sixth Amendment right to counsel and the authorities cited by the dissent are inapposite.
In sum, while we harbor substantial misgivings about the examination technique employed in this case, given the considerable evidence showing that French personally acceded to — indeed, deliberately pursued — the same defense theory that Darin sought to establish through her testimony, we hold that her right to self-representation was not violated.
French also asserts that she was entitled to a new trial in the "interests of justice" because her husband's abuse and manipulation precluded her from pursuing her independent defense. Fed. R.Crim.P. 33(a) ("Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires."). We review the district court's denial of a motion for a new trial for abuse of discretion. See United States v. Moses, 496 F.3d 984, 987 (9th Cir.2007). In determining whether a district court abused its discretion, we apply a two-part test. First, we determine de novo whether the court identified the correct legal rule to apply to the relief requested. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.2009) (en banc). If so, we then consider "whether the trial court's application of the correct legal standard was (1) `illogical,' (2) `implausible,' or (3) without `support in inferences that may be drawn from the facts in the record.'" Id.
French fails to satisfy this standard. The district court stated the correct legal standard in denying both her initial
French relies on United States v. Mack, 362 F.3d 597 (9th Cir.2004), and Rodgers v. Marshall, 678 F.3d 1149 (9th Cir.2012), neither of which compels a contrary conclusion. In Mack, we held that it was structural error to forbid a pro se defendant from cross-examining witnesses, making objections, or presenting a closing argument, even where the defendant was disruptive and contemptuous of the court. 362 F.3d at 601-03. And, while we held in Rodgers that a pro se defendant's Sixth Amendment rights were violated where the district court denied his request to appoint counsel to assist him with a post-verdict motion, 678 F.3d at 1154, the Supreme Court later reversed this decision. Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013) (per curiam). The Supreme Court held that no such right was clearly established under its precedent. Id. at 1450-51. Thus, neither Mack nor Rodgers supports the proposition that the district court abused its discretion by refusing to grant French's post-conviction motions "in the interest of justice."
Next, French contends that the district court should have granted her motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) because the evidence was insufficient to support her convictions. We review a district court's denial of a Rule 29 motion de novo. United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.2012). When assessing a sufficiency of evidence challenge, we must consider the evidence presented at trial in the light most favorable to the prosecution. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). We then ask "whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." Id. (alteration, citation, and internal quotation marks omitted).
We first consider whether sufficient evidence supported French's wire and mail fraud convictions. The elements of these offenses are (1) proof of a scheme to defraud, (2) using the mails or wires to further the fraudulent scheme, and (3) specific intent to defraud. 18 U.S.C. §§ 1341, 1343; see also United States v. Lothian, 976 F.2d 1257, 1262 (9th Cir.1992) (noting that the elements of mail and wire fraud are the same). "It is settled law that intent to defraud may be established by circumstantial evidence." United States v. Rogers, 321 F.3d 1226, 1230 (9th Cir.2003).
French contends that there was insufficient evidence that she acted with the requisite intent. We disagree. At trial, the government presented considerable circumstantial evidence of French's intent to defraud. For example, the dealer who functioned as LWWG's appliance supplier testified that French falsely told him she was a designer buying appliances for her clients. Further, even though this dealer stopped selling to the Frenches in May 2004 (effectively leaving their business without a supplier), French continued to cash checks and placate customers with
Viewing the evidence in the light most favorable to the prosecution, as we must, we believe a rational trier of fact could have found beyond a reasonable doubt that French possessed the requisite intent to defraud. Accordingly, French's sufficiency of evidence challenge fails with respect to her convictions for mail and wire fraud.
French also challenges the sufficiency of evidence supporting her convictions of two counts of money laundering. We turn first to her conviction of money laundering in violation of 18 U.S.C. § 1957, as charged in Count 61 of the indictment. Criminal liability attaches under § 1957 where a defendant (1) knowingly engages in a monetary transaction, (2) knowing that the transaction involved criminal property, (3) the property's value exceeds $10,000, and (4) the property derives from a specified unlawful activity.
Here, the charge in Count 61 was based on a transfer of $30,000 from LWWG's bank account to the Frenches' joint personal bank account on July 27, 2004. These funds were then used to purchase a 2003 Ford F250 pickup truck. French argues that this conviction should be reversed because there was no evidence that she, as opposed to her husband, engaged in a monetary transaction relating to the purchase of this truck. We agree. The government fails to cite any evidence — and we are aware of none — supporting this particular count of the indictment as to Jennifer French. To the contrary, the only evidence pertaining to Count 61 is testimony from a manager at Ford that Darin was the individual who bought the truck, and that he alone signed the transaction documents. Because the government has not pointed to any evidence from which a rational trier of fact could infer that French knowingly engaged in a monetary transaction involving criminal property in purchasing the pickup truck, her conviction for money laundering pursuant to § 1957 cannot stand.
We also agree with French that the government failed to adduce sufficient evidence to support her conviction for money laundering in violation of 18 U.S.C. § 1956(a)(1)(B), as charged in Count 62. This charge was based on a $40,000 transfer of funds from LWWG's bank account
The government maintains that this conviction was adequately supported by two pieces of evidence: (1) Jennifer's statement that she and Darin sold E*Trade stocks to "put [the money] back into the business ... to keep our business running"; and (2) the fact that $50,000 was transferred from Darin's E*Trade account to the Frenches' joint checking account between September 2 and September 9, 2004. This evidence, however, is not enough to sustain French's conviction under § 1956(a)(1)(B), even when viewed in the light most favorable to the prosecution.
Unlike the transactions which formed the basis of other money laundering charges in the indictment, the funds at issue in Count 62 were not transferred from LWWG's account to the Frenches' joint Bank of the West account; they went directly to an E*Trade account held exclusively in Darin's name. Notably, there is no evidence in the record indicating that Jennifer had access to this account, let alone that she personally transferred money into it, knowing the funds to be the proceeds of unlawful activity. Contrary to the government's contention, that French was aware that her husband had an E*Trade account when she testified at trial in February 2011 does not mean that she was aware of — let alone had access to — the account at the time of the offense conduct in 2004. Moreover, the statement on which the government relies as corroborating evidence does not appear to refer to the same monetary transaction upon which Count 62 is based. To wit, when French said that "the E*Trade stocks [were] sold, put back into the business" (emphasis added), she could only have been talking about funds which were transferred out of Darin's E*Trade account and into their joint checking account — not the transaction charged in Count 62, which was the $40,000 transfer of funds from LWWG's account into Darin's E*Trade account. Accordingly, we conclude that a rational trier of fact could not have found the essential elements of the money laundering offense charged in Count 62 beyond a reasonable doubt. See Nevils, 598 F.3d at 1161.
We therefore reverse French's two convictions for money laundering in violation of 18 U.S.C. § 1957 and 18 U.S.C. § 1956(a)(1)(B).
French also contends that the district court erred in formulating a supplemental jury instruction regarding the meaning of "ill intent." Because French objected to the supplemental instruction on a different basis at trial than she now raises on appeal, plain error review applies. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir.2012).
On the second day of deliberations, the jury submitted a note:
Following discussion with the parties, the court referred the jury to an instruction telling them to consider each count separately, as well as to instructions regarding aiding and abetting, elements of mail fraud, elements of wire fraud, the definition of "intent to defraud," co-schemer liability, and good faith. After continued discussions, the court issued a supplemental instruction that included the following language:
French argues that by focusing exclusively on the intent-to-defraud element of mail and wire fraud, the trial court's supplemental instruction "diluted" another aspect of criminal intent — the element of "knowingly participating in a scheme." We recognize the ambiguity inherent in the jury's question; it was unclear whether their query about "ill intent" pertained only to the intent-to-defraud element, or to the broader mens rea. However, the crucial inquiry at this juncture is "how the jury would have reasonably understood the challenged instruction in the context of the instructions as a whole." United States v. Moran, 493 F.3d 1002, 1009-10 (9th Cir.2007) (per curiam) (emphasis added); see also United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.2010) (stating that the relevant inquiry for a reviewing court is "whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation" (emphasis added)). So viewed, the district court's supplemental instruction was not plainly erroneous. The jury instructions as a whole clearly and repeatedly articulated the "knowing participation" element of the offense. Moreover, any minor ambiguity regarding the meaning of "ill intent" was not likely prejudicial in light of the clear instruction that the "good faith of a defendant is a complete defense" because it is "inconsistent with the intent to defraud required in all mail fraud and wire fraud offenses." Cf. Moran, 493 F.3d at 1010 (upholding instructions that had a "minor ambiguity" after a "careful picking apart" of the wording). Accordingly, we reject French's challenge to the supplemental jury instruction.
Based on the foregoing, we affirm French's convictions of mail and wire fraud, reverse her convictions for money laundering, and remand for re-sentencing.
NOONAN, Circuit Judge, dissenting;
Today, the majority approves as harmless the examination at trial of a pro se defendant by an interested, non-lawyer codefendant. Because this result is unconstitutional and because representation by a lay person bears directly on the "framework within which the trial proceeds," Arizona
We begin with the text of the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This provision guarantees a criminal defendant the appointment of counsel for his defense at all critical stages of the prosecution. Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Supreme Court has recognized one solitary constitutionally permissible alternative to representation by counsel that is "necessarily implied by the structure of the [Sixth] Amendment": a defendant's constitutional right to represent himself. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). These rights balance trial fairness, see Gideon, 372 U.S. at 344, 83 S.Ct. 792, with "the dignity and autonomy of the accused," McKaskle, 465 U.S. at 176-77, 104 S.Ct. 944. We have described these rights as "reciprocal," John-Charles v. California, 646 F.3d 1243, 1248 (9th Cir.2011), suggesting that these rights are the two and only two options allowable under the Sixth Amendment. We have also described these rights as "concomitant," Sandoval v. Calderon, 241 F.3d 765, 774 (9th Cir.2000), "correlative and mutually exclusive," United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir.2009); see also Faretta, 422 U.S. at 825, 95 S.Ct. 2525 ("The right to counsel was viewed as guaranteeing a choice between representation by counsel and the traditional practice of self-representation.").
We are unaware of any court that has allowed the arrangement here, see Op. at 932, and for good reason. "Nothing in the language or the history of the sixth amendment to the Constitution" contemplates permitting representation by persons who are not qualified attorneys. United States v. Wright, 568 F.2d 142, 143 (9th Cir.1978). Indeed, lay representation would obstruct the objectives of the Sixth Amendment, "not further them." Id. "Whatever else it may mean," the Supreme Court has explained, "the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a
The law is clear: "Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Once Jennifer decided to proceed pro se and her request was honored by the court, she may not be represented by an individual, other than herself, who is not a licensed attorney. Indeed, the "control" test in McKaskle, upon which the majority heavily relies, was contemplated only in relation to standby counsel. McKaskle, 465 U.S. at 176, 104 S.Ct. 944. While a court may appoint qualified standby attorney as a safeguard for a pro se defendant, see, e.g., id., a trial judge may not allow, let alone encourage, a non-lawyer to represent a defendant at a critical stage of her trial.
We have already held that representation by a person who is not a qualified attorney constitutes a per se violation of the Sixth Amendment where "the defendant's representative had never been admitted to any bar." United States v. Hoffman,
Rules governing representation by counsel are fruits of long English and American experience. See Faretta, 422 U.S. at 821-33, 95 S.Ct. 2525. These rules are not to be lightly disregarded in the interest of efficiency or in order to move things along. Well-intentioned as the trial judge was, he had no authority to suggest that a non-lawyer — much less an interested co-defendant — represent a criminal defendant, nor did that defendant have any right to be represented by one, other than herself, who is not a member of the bar. Without the assistance of counsel and after losing her right to represent herself at a critical stage at her trial, Jennifer was convicted of a serious federal crime. Her conviction cannot stand.
231 F.3d at 1138-39.
Fed.R.Crim.P. 44(c)(2). French's reliance on Rule 44(c) is misplaced because she never moved for joint representation; she moved to represent herself and Darin moved to represent himself. Since each sought only to represent himself or herself, it makes little sense to mandate a Rule 44(c) advisement.
