Tuesday, April 8, 2014
Panel Declines to Overturn Conviction in Case Where One Defendant Questioned Another
By a MetNews Staff Writer
A federal district judge did not commit reversible error by allowing a self-represented defendant to conduct the direct and redirect examinations of his co-defendant, who was also his wife and was also acting as her own counsel, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the panel held that U.S. District Judge Larry Hicks of the District of Nevada was not required to specifically warn Jennifer French that a potential conflict of interest between herself and her husband was one of the dangers of self-representation. And she readily acceded to the judge’s suggestion that her husband conduct the examination, which had a strategic benefit to both defendants, Judge Jacqueline Nguyen wrote for the court.
That suggestion “likely contravened the well-settled rule against lay representation and created the opportunity for conflict,” Nguyen acknowledged. But since the pair were conducting a joint defense rather than an antagonistic one, any error was harmless, the judge said, explaining that a violation of the right to qualified counsel, as distinguished from a violation of the right of self-representation, does not require reversal in the absence of prejudice.
Senior Judge Raymond Fisher concurred, while Senior Judge John Noonan dissented.
“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,” Noonan wrote. Because she was deprived of her right to self-representation, he argued, there was a structural constitutional defect to which harmless-error analysis does not apply.
Darin and Jennifer French were convicted by a federal jury of mail fraud, wire fraud, and money laundering in connection with an Internet scheme in which the victims bought and paid for high-end appliances they never received.
Darin French was sentenced to 12.5 years in prison, consecutive to a 30-month sentence he was already serving for defrauding a national appliance distributor by submitting invoices for warranty repairs that were never made.
The Frenches’ jointly owned online business, “Look What We Got,” advertised high-end kitchen appliances for sale on eBay, according to the evidence. Prosecutors and victims said they claimed to be authorized representatives, selling the merchandise at a discount, when in fact they had no such authorization and at least one manufacturer had sent them a letter demanding they cease and desist from misrepresenting themselves as its representatives.
The fraud allegedly included creation of false positive feedback on eBay and repeated promises to deliver appliances they didn’t have and had no access to, and representing that they had a supplier for the products when they didn’t.
They continued to promise either goods or refunds to customers, according to the evidence, while diverting customers’ funds from the company’s bank account to their personal accounts and eventually spending the money on themselves.
Jennifer French, who received a two-year sentence, won a partial victory yesterday as the panel ordered a new sentencing hearing. It said that while she was properly convicted of fraud, the money laundering convictions could not stand because there was no showing that she—as opposed to her husband—personally benefitted from the transfers into their personal accounts.
It was at least possible, the panel said, that she would have received a lesser sentence on the fraud counts alone.
The case is United States v. French, 12-10185.
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