United States v. Jennifer French

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10185
Plaintiff-Appellee,
D.C. No.
v. 3:08-cr-00006-
LRH-WGC-2
JENNIFER LYNN FRENCH,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Argued and Submitted
March 13, 2013—San Francisco, California

Filed April 7, 2014

Before: John T. Noonan, Raymond C. Fisher,
and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen;
Dissent by Judge Noonan
2 UNITED STATES V. FRENCH

SUMMARY*

Criminal Law

The panel affirmed in part and reversed in part a criminal
judgment in a case in which the government alleged that the
defendant and her then-husband, both of whom proceeded to
trial pro se, defrauded customers by tricking them into
making advance payments for high-end kitchen appliances
which were never delivered.

The panel rejected the defendant’s contention that the
district court’s Faretta colloquy was deficient by the
omission of an explicit warning about a potential conflict of
interest in this multi-defendant prosecution, and held that the
defendant’s waiver of the right to counsel was voluntary,
knowing, and intelligent.

The panel held that the defendant’s Sixth Amendment
right to self-representation was not violated when she adopted
the district court’s suggestion to permit her husband to
conduct her direct and re-direct examination. The panel held
that the district court did not abuse its discretion in denying
the defendant’s motion for a new trial “in the interests of
justice.”

The panel held that the evidence was sufficient to support
the defendant’s convictions for wire and mail fraud, and that
the district court properly instructed the jury regarding the
mens rea for these offenses. The panel held that the evidence

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. FRENCH 3

was insufficient to support the defendant’s convictions on two
money laundering counts, and that the jury was improperly
instructed as to one of these charges, where the district court
failed to define “proceeds” as “profits.” The panel remanded
for resentencing in light of the reversal of her convictions on
the money laundering counts.

Dissenting, Judge Noonan wrote that the examination at
trial of a pro se defendant by an interested, non-lawyer co-
defendant is a structural constitutional defect not amenable to
harmless error analysis.

COUNSEL

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.

OPINION

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
4 UNITED STATES V. FRENCH

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.

BACKGROUND

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
 UNITED STATES V. FRENCH 5

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 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.1 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

1
Given that high-end appliance dealers are in a line of business with
expensive inventory, stiff competition from other retailers, and in which
major appliance dealers often write price floors into contracts, a 90% gross
margin is highly unusual.
6 UNITED STATES V. FRENCH

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.
 UNITED STATES V. FRENCH 7

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?
8 UNITED STATES V. FRENCH

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
 UNITED STATES V. FRENCH 9

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 you’re – if there’s no
10 UNITED STATES V. FRENCH

objection, you’re going to answer the next
question. And that is awkward. . . .

So I would recommend that if you’re going to
testify, that Mr. French conduct your
examination and you rely upon that.

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 conduct. At
least twice, the court sustained objections from the
government that Darin was “trying to circumvent testifying
by [improperly] trying to get his testimony in through his
wife.”

The jury began deliberations on the seventh day of trial.
The following morning, the court received a note from the
jury asking:

With regards to intent, when it comes to the
law, does, “ill” intent have to be established
from the start of the company or at any time
throughout the life of the company?

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.
 UNITED STATES V. FRENCH 11

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.
12 UNITED STATES V. FRENCH

JURISDICTION

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).

DISCUSSION

I. French’s Waiver of the Right to Counsel Was
Knowing, Intelligent, and Voluntary

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 (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:

Although a defendant need not himself have
the skill and experience of a lawyer in order
competently and intelligently to choose
self-representation, he should be made aware
of the dangers and disadvantages of
self-representation, so that the record will
establish that ‘he knows what he is doing and
his choice is made with eyes open.’

Faretta, 422 U.S. at 835 (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942)). Although a district
court need not recite any set “formula or script” to a
 UNITED STATES V. FRENCH 13

defendant who seeks to waive counsel, Iowa v. Tovar,
541 U.S. 77, 88 (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).2 In
general, district courts must ensure that a defendant
understands: (1) the nature of the charges against her; (2) the
possible penalties; and (3) the dangers and disadvantages of
self-representation. See United States v. Erskine, 355 F.3d
1161, 1167 (9th Cir. 2004).

“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

2
Specifically, in Hayes, we suggested the following language:

The court will now tell you about some of the dangers
and disadvantages of representing yourself. You will
have to abide by the same rules in court as lawyers do.
Even if you make mistakes, you will be given no
special privileges or benefits, and the judge will not
help you. The government is represented by a trained,
skilled prosecutor who is experienced in criminal law
and court procedures. Unlike the prosecutor you will
face in this case, you will be exposed to the dangers and
disadvantages of not knowing the complexities of jury
selection, what constitutes a permissible opening
statement to the jury, what is admissible evidence, what
is appropriate direct and cross examination of
witnesses, what motions you must make and when to
make them during the trial to permit you to make
post-trial motions and protect your rights on appeal, and
what constitutes appropriate closing argument to the
jury.

231 F.3d at 1138–39.
14 UNITED STATES V. FRENCH

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.

A.

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.”3 By faulting
the court for failing to warn her about the existence of a
potential conflict, French effectively asserts that the district
court was obligated to advise her as to a potential substantive
defense—that she lacked knowledge about the fraudulent
nature of Darin’s scheme. A warning of this nature, however,
differs materially from the sorts of pro se “pitfalls” to which
the phrase “dangers and disadvantages of self-representation”
has been generally understood to refer.

As we have explained, the phrase “dangers and
disadvantages” does not mean that “the judge must serve as
a surrogate lawyer for the defendant.” Hayes, 231 F.3d at
1138. Rather, the purpose of advising a defendant about the

3
We first address French’s claims regarding self-representation and the
court’s Faretta colloquy, separate from the issue of how Darin asking
questions during French’s testimony changed the dynamic of French’s
representation. Later, we address Darin’s questioning, which created the
opportunity for conflict after the colloquy.
 UNITED STATES V. FRENCH 15

dangers and disadvantages of self-representation is to ensure
that he or she understands the value of being represented by
counsel. See United States v. Gillings, 568 F.2d 1307, 1309
(9th Cir. 1978) (“The defendant must be aware that he or she
will be on his or her own in a complex area where experience
and professional training are greatly to be desired.”); United
States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (an
accused seeking self-representation must understand “the
possible consequences of mishandling [a lawyer’s] core
functions and the lawyer’s superior ability to handle them”).

French relies on the Supreme Court’s reference to
“case-specific factors” in Tovar, 541 U.S. at 88, 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. Writing for a
unanimous court, Justice Ginsburg opined that the Sixth
Amendment did not compel such an admonition. Id. at 92.

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.4 See Tovar, 541 U.S.
at 92 (a Faretta waiver can “satisf[y] the constitutional
minimum” even where a defendant “lack[s] a full and

4
Again, we address the impact that Darin’s questioning had on French’s
representation later.
16 UNITED STATES V. FRENCH

complete appreciation of all of the consequences flowing
from his waiver” (emphasis added)); see also Gerritsen,
571 F.3d at 1012 (interpreting Tovar’s reference to
“case-specific factors” as pertaining to factors bearing on the
defendant’s knowledge about the value of counsel).

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.5

5
French also cites Federal Rule of Criminal Procedure 44(c) as support
for her argument. This provision states, in relevant part:

The court must promptly inquire about the propriety of
joint representation and must personally advise each
defendant of the right to the effective assistance of
counsel, including separate representation. Unless
there is good cause to believe that no conflict of interest
is likely to arise, the court must take appropriate
measures to protect each defendant’s right to counsel.

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.
 UNITED STATES V. FRENCH 17

We thus reject French’s claim that the Faretta colloquy
was rendered constitutionally deficient by the omission of an
explicit warning about a potential conflict of interest,
particularly because Darin had no involvement in French’s
individual self-representation at this stage of the proceedings.

B.

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
18 UNITED STATES V. FRENCH

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.

II. During Trial, French’s Right to Self-Representation
Was Not Violated

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 (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; 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 the jury. McKaskle, 465 U.S. at 178.
This argument carries some intuitive appeal. Allowing one
pro se defendant to conduct another pro se defendant’s
examination at trial raises concerns about the erosion of the
testifying defendant’s Faretta rights, as well as an obvious
 UNITED STATES V. FRENCH 19

problem with potential conflicts of interest. We are unaware
of any other instance in which a trial court allowed such an
arrangement. But the constitutional question before us cannot
be resolved in the abstract; our decision must turn on the facts
of this particular case. As the Supreme Court has explained,
in determining whether a pro se defendant’s right to self-
representation was respected, the crucial question is whether
she had a “fair chance to present [her] case in [her] own
way.” McKaskle, 465 U.S. at 176. Here, our review of the
record leads us to conclude that French not only had such a
chance, but she in fact presented her case in her own way.

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.6 As previously noted, Jennifer took the
lead in preparing pre-trial motions (on behalf of both herself
and Darin), and actively participated in pre-trial hearings.
She also expressed concern about how seating arrangements
in the courtroom could impair her ability to confer with Darin
throughout the trial. In short, she was thoroughly engaged,
and numerous times took the lead, at every stage of the
proceedings.

6
The “innovative” business plan was for LWWG to purchase full-priced
appliances from suppliers, and then take advantage of their status as a
Nevada corporation to sell to California consumers at a discount, without
collecting sales taxes. The Frenches purported to believe that they could
generate good will from doing this, which would somehow eventually
translate to profit.
20 UNITED STATES V. FRENCH

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.7 At one point, she even
corrected the trial court’s misimpression that “[her] husband

7
French’s questions were generally consistent with Darin’s defense
strategy with one exception: she asked one witness a question designed to
point out that the E*Trade account into which company funds were
transferred was held exclusively in Darin’s name. This question indicates
that she was willing and able to differentiate her conduct from Darin’s
when she so desired.
 UNITED STATES V. FRENCH 21

was questioning for [her].” Thus, viewing the record in
totality, we find that French was afforded a fair chance to
present her own case.8

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. 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,

[a] defendant’s invitation to counsel to
participate in the trial obliterates any claim
that the participation in question deprived the
defendant of control over his own defense. . . .
Even when he insists that he is not waiving
his Faretta rights, a pro se defendant’s
solicitation of or acquiescence in certain types
of participation by counsel substantially
undermines later protestations that counsel
interfered unacceptably. . . . [I]f a defendant is
given the opportunity and elects to have
counsel appear before the court or jury, his
complaints concerning counsel’s subsequent

8
Additionally, in suggesting that Darin conduct Jennifer’s examination,
the district court expressly noted that she could ask herself follow-up
questions to any question Darin asked. She did not take advantage of this
opportunity, however.
22 UNITED STATES V. FRENCH

unsolicited participation lose much of their
force.

Id. at 182–83. 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.9

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 (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 counsel.”);

9
We note that the district court could have appointed standby counsel
to assist French, even over her objection. See Faretta, 422 U.S. at 834
n.46. But, ignoring the practical problems that appointing standby counsel
would have presented, such as a serious delay in the jury trial, there is no
indication in the record that French would have been inclined to testify in
any other way. See Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir.
2005) (“Standby counsel may . . . participate in trial proceedings, without
the express consent of the defendant, so long as the participation does not
‘seriously undermine[]’ the ‘appearance before the jury’ that the defendant
is proceeding pro se.” (citing McKaskle, 465 U.S. at 187)).
 UNITED STATES V. FRENCH 23

Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir.
1982) (“The federal courts have consistently rejected attempts
at third-party lay representation. By law an individual may
appear in federal courts only pro se or through legal counsel.”
(citation omitted)).

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
24 UNITED STATES V. FRENCH

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.

III. The District Court Properly Denied French’s
Motion for a New Trial

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.
 UNITED STATES V. FRENCH 25

French fails to satisfy this standard. The district court
stated the correct legal standard in denying both her initial
motion for a new trial and motion to reconsider denial of her
new trial motion. Nor was its application of this standard
illogical, implausible, or without support in the record.
Because French did not raise her arguments about Darin’s
alleged abuse until more than 14 days after the jury verdict,
the district court did not abuse its discretion in deeming her
motion untimely under Fed. R. Crim. P. 33(b)(2).

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, 133 S. Ct. 1446 (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.”
26 UNITED STATES V. FRENCH

IV. Sufficient Evidence Supported French’s Wire
and Mail Fraud Convictions, but Not the Money
Laundering Convictions

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).

A.

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
 UNITED STATES V. FRENCH 27

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 falsehoods well into that summer.
For instance, French falsely stated in an email to a customer
that LWWG would send his refund as soon as the company
got the funds back from the “second supplier” (who did not,
in fact, exist). Numerous other witnesses similarly testified
that they either spoke to or exchanged emails with French
about their orders. Additionally, the evidence showed that
during the summer of 2004, LWWG increased its revenue
from sales of appliances, yet decreased its inventory
considerably.

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.

B.

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
28 UNITED STATES V. FRENCH

involved criminal property, (3) the property’s value exceeds
$10,000, and (4) the property derives from a specified
unlawful activity.10 Rogers, 321 F.3d at 1229.

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.11

10
Mail fraud is listed as a “specified unlawful activity.” 18 U.S.C.
§ 1957(f)(3); 18 U.S.C. §1956(c)(7)(A); 18 U.S.C. §1961(1).
11
We also find instructional error with regard to Count 61 because the
court failed to define “proceeds” as “profits” under United States v.
Santos, 553 U.S. 507 (2008), and United States v. Bush, 626 F.3d 527 (9th
Cir. 2010). Addressing this same issue in Darin French’s appeal, we
reversed his money laundering convictions based on the purchases of the
pickup truck and boat. See United States v. Darin French, No. 11-10294,
494 F. App’x 784 (9th Cir. 2012). The same reasoning applies
here—whether the Frenches’ use of the truck to deliver appliances was a
 UNITED STATES V. FRENCH 29

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 to Darin’s
E*Trade account between August 5 and 19, 2004. To convict
a defendant of money laundering under § 1956(a)(1)(B), the
government must prove that (1) the defendant conducted or
attempted to conduct a financial transaction, (2) the
transaction involved the proceeds of unlawful activity, (3) the
defendant knew that the proceeds were from unlawful
activity, and (4) the defendant knew that the transaction [was]
designed in whole or in part—to conceal or disguise the
nature, the location, the source, the ownership, or the control
of the proceeds of specified unlawful activity. United States
v. Wilkes, 662 F.3d 524, 545 (9th Cir. 2011).

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

“central component of the scheme” under United States v. Van Alstyne,
584 F.3d 803 (9th Cir. 2009), is a factual question that should have gone
to the jury. See French, 2012 WL 4845561, at *2.
30 UNITED STATES V. FRENCH

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).
 UNITED STATES V. FRENCH 31

V. The Supplemental Jury Instruction Was Not Plainly
Erroneous

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:

With regards to intent, when it comes to the
law, does “ill” intent have to be established
from the start of the company or at any time
throughout the life of the company?

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:

Your question concerns intent and the timing
of intent. As reflected in the instructions, a
necessary element of mail fraud and wire
fraud is an intent to defraud; that is, an intent
to deceive or cheat at the time of the offense
alleged against each defendant.
32 UNITED STATES V. FRENCH

The intent to defraud must have existed at the
time of the alleged offense. However, the jury
is entitled to consider all of the evidence
bearing upon intent as it may relate to intent at
the time of the charged offense.

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.
 UNITED STATES V. FRENCH 33

CONCLUSION

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.12

AFFIRMED in part; REVERSED in part.

NOONAN, Circuit Judge, dissenting;

Today, the majority approves as harmless the examination
at trial of a pro se defendant by an interested, non-lawyer co-
defendant. Because this result is unconstitutional and
because representation by a lay person bears directly on the
“framework within which the trial proceeds,” Arizona v.
Fulminante, 499 U.S. 279, 310 (1991), the defect is structural
and not amenable to harmless error. See McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984).

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 (1963). The Supreme Court has recognized
one solitary constitutionally permissible alternative to

12
Because the matter is remanded for sentencing, we need not address
French’s sentencing claims raised on appeal. We note, however, that her
claim of procedural error is foreclosed by our decision in United States v.
Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).
34 UNITED STATES V. FRENCH

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 (1975). These rights balance
trial fairness, see Gideon, 372 U.S. at 344, with “the dignity
and autonomy of the accused,” McKaskle, 465 U.S. at
176–77. 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
(“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 19, 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 lawyer at or after the time that judicial
proceedings have been initiated against him.” Brewer v.
Williams, 430 U.S. 387, 398 (1977) (emphasis added); see
also United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.
 UNITED STATES V. FRENCH 35

1989) (holding that “counsel” means “attorney” under the
Sixth Amendment).

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 (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. 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,
733 F.2d 596, 600 (9th Cir. 1984). “The principle applied in
such cases is that one never admitted to practice law and
therefore who never acquired the threshold qualification to
represent a client in court cannot be allowed to do so . . . for
purposes of the Sixth Amendment.” United States v. Mouzin,
785 F.2d 682, 697 (9th Cir. 1986). Other circuits agree. See,
e.g., Solina v. United States, 709 F.2d 160, 168 (2d Cir.
1983); Harrison v. United States, 387 F.2d 203, 212–14 (D.C.
Cir. 1967).

Rules governing representation by counsel are fruits of
long English and American experience. See Faretta,
422 U.S. 821–33. These rules are not to be lightly
36 UNITED STATES V. FRENCH

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.