United States v. Brett Depue, 595 F. App'x 732

Defendant Brett Depue was convicted of conspiracy to commit bank, mail, and wire fraud (18 U.S.C. § 1349) and related wire fraud and aiding-and-abetting counts, and appealed.
At a pretrial hearing Depue waived his right to counsel and proceeded pro se; the district court concluded the waiver was knowing and intelligent.
During the Faretta colloquy, the court asked Depue about possible penalties; Depue answered "30 years," but several charged offenses carried a 20-year maximum.
The government introduced testimony and a letter from Depue’s former attorney, James Adams; Depue had previously testified about communications with Adams.
The district court excluded certain proffered alternative defenses as irrelevant; it admitted Adams’ testimony and letter over privilege objections.
The Ninth Circuit vacated the convictions for an invalid Faretta waiver but upheld the district court’s evidentiary rulings (privilege waiver/crime-fraud exception, non-expert characterization of Adams’ testimony, and exclusion of irrelevant defenses) and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of Faretta waiver	Gov't: waiver was knowing and intelligent	Depue: did not understand possible penalties or risks of self-representation	Waiver invalid — Depue’s inaccurate statement about penalties ("30 years") meant government failed heavy burden to show a knowing, intelligent waiver; convictions vacated
Admissibility of former counsel’s testimony/letter (attorney-client privilege)	Gov't: privilege waived by Depue’s own testimony; crime-fraud exception applies	Depue: communications remained privileged and inadmissible	Admissible — Depue waived privilege by disclosing communications; alternatively admissible under crime-fraud exception
Characterization of Adams’ testimony as expert	Gov't: testimony was non-expert fact/opinion relevant to Depue’s knowledge	Depue: Adams improperly offered expert legal opinion	No plain error — testimony was used to show Depue’s knowledge of subordinates’ actions, not to explicate law
Exclusion of alternative defenses	Depue: proposed defenses should have been admitted	Gov't: defenses irrelevant to charged offenses	Proper exclusion — proposed defenses would not mitigate alleged crimes and were irrelevant under Rules 401–402

Faretta v. California, 422 U.S. 806 (1975) (criminal defendant has right to self-representation but waiver must be knowing and intelligent)
United States v. Lopez-Osuna, 242 F.3d 1191 (9th Cir. 2001) (elements of valid Faretta waiver: nature of charges, possible penalties, and dangers of self-representation)
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) (importance of accurate colloquy on possible penalties in Faretta waivers)
Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18 (9th Cir. 1981) (disclosure of privileged communications waives attorney-client privilege)
In re Grand Jury Proceedings, 87 F.3d 377 (9th Cir. 1996) (crime-fraud exception to attorney-client privilege)
Thompson v. Paul, 547 F.3d 1055 (9th Cir. 2008) (appellate efficiency supports addressing likely-to-recur evidentiary issues on remand)