United States v. Brett Depue
879 F.3d 1021
9th Cir.2018Background
- Brett Depue ran a mortgage-fraud operation (2005–2007) using straw buyers to obtain about 106 mortgage loans on Nevada homes; banks ultimately foreclosed, producing estimated institutional losses exceeding $25 million.
- Depue was tried three times; convicted on eight counts (wire fraud and conspiracy to commit bank, mail, and wire fraud) at his third trial after proceeding pro se and not contesting evidence.
- During deliberations in the third trial, Juror No. 9 reported feeling poisoned and said he did not trust someone in the jury room; the district judge excused him and replaced him with an alternate.
- At sentencing the Government and PSR used aggregated sale prices (and an assumption of 100% financing) to equate sales price with unpaid principal, computing total loss just over $25 million and applying a 22-level Guidelines enhancement under U.S.S.G. § 2B1.1(b)(1)(L).
- Depue did not object to the PSR or the loss calculation at sentencing (beyond unrelated incarceration-date comments) and received concurrent terms, including 262 months on the lead count; he appealed.
Issues
| Issue | Depue's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether dismissing Juror No. 9 during deliberations violated the Sixth Amendment / Rule 23 | Judge abused discretion by removing a juror who might be a holdout | Juror was unfit to continue (physical symptoms, distrust of other jurors, inability to deliberate) | Removal was proper: judge reasonably found juror unfit for reasons unrelated to views on the merits; no abuse of discretion |
| Whether the district court erred in using sales prices rather than loan principals to calculate loss for Guidelines | Using sales prices inflated loss; court should have used loan principals | Most purchases used 100% financing so sales prices approximated unpaid principal; Government relied on PSR and summary | Not reviewed on the merits: Depue waived/failed to timely object, so plain-error relief not available |
| Whether the Guidelines loss calculation contained errors in the Government’s summary chart (plain-error review) | Alleged summary errors rendered the $25M+ loss calculation invalid and required correction | Depue affirmatively accepted PSR computations and made no timely objections; thus he waived challenge | Plain-error standard not met; Depue waived challenges and cannot show entitlement to relief |
Key Cases Cited
- United States v. Vartanian, 476 F.3d 1095 (9th Cir. 2007) (juror-dismissal review standard and examples of juror misconduct)
- Murray v. Laborers Union Local No. 324, 55 F.3d 1445 (9th Cir. 1995) (physical incapacity and "good cause" for juror dismissal)
- United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) (limits on dismissing jurors whose dismissal might be motivated by views on the merits)
- Taylor v. Louisiana, 419 U.S. 522 (1975) (Sixth Amendment impartial jury and fair cross-section principle)
- Morgan v. Illinois, 504 U.S. 719 (1992) (requirement that jurors be impartial and indifferent to the defendant)
- United States v. Gaudin, 515 U.S. 506 (1995) (historical importance of jury trials and impartiality)
- California v. Rooney, 483 U.S. 307 (1987) (review of trial court judgments, not its stated reasons)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (district court must correctly calculate Guidelines range)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error framework)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (waiver and plain-error prerequisites under sentencing challenges)