United States v. Brett Depue ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10553
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00121-
RLH-RJJ-1
BRETT DEPUE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted October 16, 2017
San Francisco, California
Filed January 11, 2018
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and David A. Ezra, * District Judge.
Opinion by Judge Callahan
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 UNITED STATES V. DEPUE
SUMMARY **
Criminal Law
Affirming the defendant’s convictions and sentence for
fraud and conspiracy in connection with a mortgage fraud
scheme, the panel held that a trial judge may excuse a juror
at any time for any material problem impeding fair
deliberations as long as it was not due to the juror’s views of
the merits of the case, and that the defendant cannot show
plain error at sentencing because he affirmatively waived his
right to challenge the alleged Guidelines errors.
COUNSEL
Mario Valencia (argued), Henderson, Nevada, for
Defendant-Appellant.
Adam Flake (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Steven W. Myhre,
Acting United States Attorney; United States Attorney’s
Office, Las Vegas, Nevada; for Plaintiff-Appellee.
**
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. DEPUE 3
OPINION
CALLAHAN, Circuit Judge:
Brett Depue (“Depue”) orchestrated a massive mortgage
fraud scheme victimizing at least thirty people, depressing
housing prices across the Las Vegas region, and causing a
total loss in tens of millions of dollars. Depue appeals from
his jury convictions of wire fraud and conspiracy to commit
bank fraud, mail fraud, and wire fraud; and from the 262-
month sentence the district court imposed.
Depue argues that the district court: (1) abused its
discretion under the Constitution and the Federal Rules of
Criminal Procedure when, amidst deliberations, it dismissed
a juror who had complained of being poisoned, possibly by
another juror; (2) plainly erred in using the sales prices rather
than the loan principals in arriving at the total loss
calculation for the purpose of calculating Depue’s sentence;
and (3) plainly erred in calculating, for United States
Sentencing Guidelines (“Guidelines”) purposes, the loss
amount of just over $25 million from the Government’s
summary chart allegedly containing some errors.
We hold, first, that a trial judge may excuse a juror at any
time for any material problem impeding fair deliberations as
long as it was not due to the juror’s views of the merits of
the case. We also hold Depue has not shown that the district
court committed plain error when it considered evidence for
Guidelines-based sentencing purposes which the defendant
had made no effort to address below.
I. Factual and Legal Background
Depue operated a number of Nevada businesses such as
ABS Investments Group, LLC, and Liberty Group
4 UNITED STATES V. DEPUE
Investments, LLC. From February 2005 to May 2007,
Depue conspired with about fourteen others to defraud
federally-insured banks. The conspiracy consisted of
recruiting “straw buyers” 1 to purchase homes they had no
intention of occupying, which Depue would then control.
Depue paid the straw buyers up to $5,000 to buy houses in
their names using their credit histories, occasionally
purchasing five houses per straw buyer. Sometimes, in order
to raise the likelihood that the lenders would lend to the
straw buyers, Depue would even put the straw buyers’ names
on his own bank account. Depue directed his co-
conspirators to prepare mortgage applications containing
false and fraudulent information about their employment,
income, assets, and intent to occupy the property as a
primary residence. Using this scheme, Depue and his co-
conspirators obtained mortgage loans for 110 homes in Las
Vegas and Henderson between April 2005 and April 2007.
Through this operation, Depue victimized at least thirty
people, and made $14–15 million.
Initially, Depue orchestrated straw-buyer transactions in
which the straw buyers purchased properties using 100%
financing. The properties were purchased at above asking
price, and the difference was disbursed at closing to one of
Depue’s entities. Then Depue began using “double
escrows” in which a middleman purchased a property and
soon thereafter resold it to a straw buyer at an inflated price,
frequently on the same day. The difference between the
price sold to the straw buyer and the middleman purchases
were distributed to Depue’s company as “seller proceeds.”
Paperwork made it appear as only one sale, removing
1
“Straw buyers” are individuals who permit residential real estate
to be bought in their names to facilitate the acquisition of property and
to conceal the identity of the true purchaser from the lenders.
UNITED STATES V. DEPUE 5
evidence of the middleman. The banks eventually
foreclosed on the properties, contributing to the decrease in
housing property values across the Las Vegas area. It is
estimated that the lending financial institutions lost more
than $25 million due to Depue’s fraud.
Initially, the Government indicted Depue on twelve
counts: wire fraud and aiding and abetting pursuant to
18 U.S.C. §§ 2, 1343, and conspiracy to commit bank fraud,
mail fraud, and wire fraud pursuant to 18 U.S.C. § 1349.
The Government dismissed four of the counts against Depue
during his first trial, which resulted in a mistrial on the
remaining eight counts.
In February 2012, Depue’s second trial on the remaining
eight counts began. Depue chose to proceed pro se. On
March 6, 2012, the jury found Depue guilty on all eight
counts. Depue appealed his convictions to the Ninth Circuit.
In an unpublished opinion, we vacated Depue’s convictions
and remanded because Depue’s waiver of his right to
counsel had not been sufficiently knowing and intelligent.
United States v. Depue, 595 F. App’x. 732 (9th Cir. 2015).
In Depue’s third trial, held in July 2015, he again
proceeded pro se. Depue called no witnesses and made no
opening or closing statements. Depue did not challenge the
Government’s evidence or question its witnesses. Depue
raised no objections whatsoever. Again, Depue was
convicted on all eight counts.
A. Dismissal of Juror No. 9
During the first day of jury deliberations, Juror No. 9 sent
a signed note to the trial judge stating: “I feel as though
someone in this room has poisoned or drugged either my
drink or the food I brought for lunch.”
6 UNITED STATES V. DEPUE
To address this matter, the district judge excused the jury
and discussed summoning Juror No. 9 with the Assistant
U.S. Attorney and Depue. Depue responded, in three
instances: “So as long as [this juror] has enough courage to
stand up and do the right thing and to continue his duty, then
I’d like to see that. If he is dismissed, then I most definitely
want a 12th juror to replace him”; “it seems like the best
route, as far as my opinion is, this [juror] just needs to just
tough it out, not worry about if he did get poisoned or not,
because who knows, and just finish the trial”; and “just tell
him, hey, just do your job, man up, you know, if you can
handle it and just do what you need to do.”
Juror No. 9 was then brought before the judge, who
asked him to explain, without violating any confidences
about the jury deliberations, why he suspected that one of the
other jurors or a court official had poisoned him. Declaring
himself to be “the odd man out,” Juror No. 9 complained of
a pounding in his heart, dizziness, “a slight headache,” and
stomachache. When pressed for a further explanation, Juror
No. 9 said he suspected that “one of the individuals took
interest in how much [he] ate,” along with the way he had
been “feeling” “when [he] came in here.”
The trial judge asked whether Juror No. 9 had “order[ed]
[his] lunch” through court personnel or “br[ought] [his]
lunch.” Juror No. 9 said he had brought a canned drink from
outside and had obtained two drinks from the court
refrigerator, neither of which had been tampered with.
The judge tried to ascertain the timeline. The juror said
he had left the jury room at least two or three times prior to
lunch in order to address his emphysema issues and to brush
his teeth. The district court asked the on-duty Court Security
Officer (“CSO”): “Are you aware of any time that others
were in there or around his food or drink when he was not
UNITED STATES V. DEPUE 7
there?” To this, the CSO responded that “Sir, . . . I can’t
attest to [Juror No. 9’s experiences in the restroom], but,
from 8:30 this morning, every juror has been accounted for,
either in the [jury] room or in the break room.”
Delving into the emphysema symptoms, the judge
inquired whether that illness “ever cause[s]” the
“conditions” of which the juror complained, namely “the
palpitations[,] . . . perspiration[,] [and] dizziness.” The juror
denied that emphysema causes these symptoms in him, but
asserted that “[t]he only thing I feel it causes is . . . having to
expel phlegm.”
The judge then asked whether the juror “feel[s] that [he]
can continue as a juror in this case.” The juror commented
that “[he], at this point, do[es] not trust someone . . . in that
jury room . . .” The judge then asked Juror No. 9 whether
“[he] can participate in deliberations if there’s somebody in
that group that [he] can’t trust.” The juror answered: “Not—
not especially, no.”
Explaining that it would be improper to “have [the juror]
attempt to continue to serve . . . under the circumstances,”
the judge then excused Juror No. 9. The judge also arranged
for the juror’s medical checkup. The judge then instructed
the CSO to facilitate Juror No. 9’s departure and to ensure
the medical checkup occurred.
Depue objected to the juror’s dismissal. Depue stated he
wanted a full complement of twelve jurors to adjudicate the
questions attending his culpability and that he also wanted
“[Juror No. 9] . . . to stay on the jury.” Depue asserted that
“if [Juror No. 9] really is the only holdout, rather than
allowing another person to poison and remove him because
he’s a dissenter,” he ought to be retained. In response, the
judge commented that “we only have his feeling that he’s the
8 UNITED STATES V. DEPUE
holdout or that he is a holdout” and “I’m not confident that
[the juror is] the only holdout in the jury.” The judge
continued: “[I]t would be patently unfair to force [the juror]
to continue and it would jeopardize the efficacy of a jury
verdict.” The judge opined that such a course of action
“could . . . impair [the juror’s] health even more, or force
him to capitulate . . .” Depue then stated that there was a
connection between the alleged poisoning of Juror No. 9 and
the poisoning Depue himself had suffered “many, many,
many times over the three and a half years” he spent in
prison. The judge commented that he lacked “any evidence
of [this accusation,]” and declined to consider this matter.
The judge brought the jury back to the courtroom and
notified the jurors that Juror No. 9 had been excused. The
judge cautioned that the jury was “not to speculate about
anything beyond” the juror’s health concern, announced that
the alternate juror would replace Juror No. 9, and instructed
the jury to restart deliberations from the beginning. The
following court day, the newly-constituted jury resumed
deliberations. That same day, the jury convicted Depue on
all eight counts.
B. Calculation of the Loss Amount During Sentencing
Depue’s sentencing hearing took place on November 9,
2015. In its Sentencing Memorandum (“SM”), the
Government calculated the total offense level as 39, based in
large part on a determination of loss greater than $25 million.
U.S.S.G. § 2B1.1(b)(1)(L).
Depue’s criminal history category was I. The Guidelines
provide that for loss greater than $25 million, the court will
add 22 offense levels to the base offense level. See U.S.S.G.
UNITED STATES V. DEPUE 9
§ 2B1.1(b)(1)(L). 2 The Government submitted evidence
that the total sales price for the properties in Depue’s
mortgage-fraud ring was $55,070,000; the sale from
foreclosure was $29,581,950; and, as a result, the total loss
was $25,488,050. U.S.S.G. § 2B1.1(b)(1)(L). The
Government increased the number of properties Depue had
used, from 102 (the number it alleged during the second
trial) to 106 in its SM following the third trial. The
Government asserted that “[t]he vast majority of these
properties were purchased with 100% financing, and were
foreclosed,” and that “[t]he unpaid principal on these loans
was approximately equal to the original loan amounts, which
with 100% financing, also equaled the straw buyer’s
purchase price.” Therefore, the Government took the total
sales price to be roughly equivalent to the aggregated
principal loan amounts. The Government asserted that since
the total loss exceeded $25 million, under U.S.S.G.
§ 2B1.1(b)(1)(L) a 22-level enhancement was appropriate.
The Government recommended the lower-end sentence of
262 months, the same sentence imposed on Depue following
his second trial.
Depue did not object to the Pre-Sentence Report’s
(“PSR”), the SM’s or the district court’s range calculation
method or result. The trial judge asked Depue if there were
any errors in the PSR. Depue mentioned only his qualms
about the dates of incarceration. The trial judge gave Depue
a second opportunity to object at sentencing, but Depue did
not object.
2
A district court properly begins “sentencing proceedings by
[attempting to] correctly calculat[e] the applicable Guidelines range.”
Peugh v. United States, 133 S.Ct. 2072, 2080 (2013) (citation and
internal quotation marks omitted).
10 UNITED STATES V. DEPUE
The district court imposed concurrent terms of
imprisonment: 262 months on Count One; 240 months, each,
on Counts Two, Three, Four, Five, Six, Seven, and Ten. The
district court imposed restitution in the amount of
$1,567,429.93, five years’ supervised release, and an $800
assessment fee. Depue filed a timely notice of appeal.
II. Standards of Review
A district court’s dismissal of a juror during deliberations
is reviewed for abuse of discretion, and a district court’s
factual findings relating to the issue of juror misconduct are
reviewed for clear error. United States v. Vartanian,
476 F.3d 1095, 1098 (9th Cir. 2007).
When a defendant fails to timely object to the district
court’s calculation of a sentence, we review for plain error.
United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.
2009). “Plain error is (1) error, (2) that is plain, and (3) that
affects substantial rights.” Id. (citations and internal
quotation marks omitted); see also United States v. Olano,
507 U.S. 725, 732–35 (1993). “If these three conditions are
met, the court may then exercise its discretion to grant relief
if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Hammons, 558 F.3d at
1103 (citations and internal quotation marks omitted).
Finally, on plain-error review, the defendant carries the
burden of showing a reasonable probability that, but for the
error, he would have received a lesser sentence. United
States v. Joseph, 716 F.3d 1273, 1280 (9th Cir. 2013).
UNITED STATES V. DEPUE 11
III. Discussion
A. Juror Dismissal
The question is whether, under the Sixth Amendment
and Federal Rule of Criminal Procedure (“Fed. R. Crim. P.”)
23(b)(3), a district court abuses its discretion when it
dismisses a juror who might be a hold-out for reasons not
stemming from the juror’s views on the merits of the case.
We hold that a district court does not, under those
circumstances, abuse its discretion.
The Sixth Amendment provides, in salient part: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed.” U.S.
Const. amend. VI. The Amendment prevents a district court
from depriving a criminal defendant of the right to “an
impartial jury drawn from a fair cross-section of the
community.” Taylor v. Louisiana, 419 U.S. 522, 535–36
(1975); see also Morgan v. Illinois, 504 U.S. 719, 727 (1992)
(stating that “the jury must stand impartial and indifferent”
to assess the criminal defendant’s culpability). Historically,
the right to be tried by one’s impartial peers has protected
criminal defendants “‘against a spirit of oppression and
tyranny on the part of rulers,’ and ‘was . . . the great bulwark
of their civil and political liberties.’” United States v.
Gaudin, 515 U.S. 506, 510–11 (1995) (quoting 2 J. Story,
Commentaries on the Constitution of the United States 540–
41 (4th ed. 1873)). Thus, the Sixth Amendment would
become ineffective if, in order to shift a verdict, a trial judge
could tinker with the jury’s composition.
Fed. R. Crim. P. 23(b)(3) enables a district court to
dismiss a juror during deliberations for “good cause.” Good
cause includes: a juror’s “physical incapacity,” Murray v.
12 UNITED STATES V. DEPUE
Laborers Union Local No. 324, 55 F.3d 1445, 1452 (9th Cir.
1995), cert. denied, 517 U.S. 1219 (1996); a juror’s
untruthfulness or “misconduct,” including “violation[s] of
the court’s instructions to the jury,” Vartanian, 476 F.3d at1098–99; and a juror’s “[inability] to deliberate impartially.”
United States v. Symington, 195 F.3d 1080, 1085 (9th Cir.
1999). But good cause broadly “embraces all kinds of
problems—temporary as well as those of long duration—
that may befall a juror during jury deliberations.” Murray,
55 F.3d at 1452 (citation and internal quotation marks
omitted).
Generally, “[t]he decision to excuse a juror is committed
to the district court’s discretion.” United States v.
Christensen, 828 F.3d 763, 806 (9th Cir. 2015) (citations and
internal quotation marks omitted). Should a problem with a
juror arise after deliberations have commenced, the “trial
court [must] determine[] the circumstances of what
transpired, the impact on the jurors, and whether or not the
[problem was] prejudicial.” Bell v. Uribe, 748 F.3d 857, 867
(9th Cir. 2014). But “if the record evidence discloses any
reasonable possibility that the impetus for a juror’s dismissal
stems from the juror’s views on the merits of the case, the
court must not dismiss the juror.” Symington, 195 F.3d at
1087. Trial judges remain empowered with the necessary
authority to handle “special challenges” concerning juror
dismissal. Id. at 1086. They are not obligated to spell out
the reasons they excuse a juror because we review
judgments, not the reasons guiding the courts below.
California v. Rooney, 483 U.S. 307, 311 (1987).
We uphold the dismissal because Juror No. 9 was
removed for reasons other than his views on the merits of the
case. Specifically, Juror No. 9 was removed because: he said
he was physically unwell; he said that he could not serve
UNITED STATES V. DEPUE 13
with his fellow jurors; he said he did not trust “someone” in
the jury room; and/or he made conclusory allegations against
them. Juror No. 9’s views on the case played no part in the
district court’s decision to dismiss him. Although Juror No.
9 declared that he was “the odd man out,” the trial judge
ignored this remark and continued to question Juror No. 9 as
to his ability to serve as a juror. The court later observed that
it had only Juror No. 9’s assertion that he was the “odd man
out” and that there might well be more than one hold-out
juror. Consequently, this case presents a type of “physical
incapacity” or “all kinds of [juror] problems” allowing for
juror dismissal. Murray, 55 F.3d at 1452.
The district court sensitively probed Juror No. 9’s
poisoning allegation by questioning him about the sequence
of events, whether the medical symptoms he said he was
experiencing may have been caused by his emphysema, and
the circumstances under which the alleged vandalism to his
bike took place. The trial judge could not have “delve[d]
[any] deep[er] into [Juror No. 9’s] motivations” without
impermissibly “intrud[ing] on the secrecy of the jury’s
deliberations” and “jeopardiz[ing] the integrity of the
deliberative process.” Symington, 195 F.3d at 1086(citations and internal quotation marks omitted).
Moreover, a trial judge is charged with maintaining the
courtroom’s dignity as well as managing the expeditious
flow of voluminous information, motions, evidence, and
actors. In this case, Juror No. 9’s allegations did not reflect
favorably on his mental state. The trial judge spared him,
the parties, and the court the indignity and expense of
investigating his mental state.
The district court carefully investigated Juror No. 9’s
fitness to continue to serve as a juror, and its conclusion that
he was unfit was not an abuse of discretion.
14 UNITED STATES V. DEPUE
B. Calculation of the Loss Amount for
Guidelines-Based Sentencing
Because Depue did not object to any alleged Guidelines
errors during his trial or sentencing, the question whether the
district court erred in calculating the total offense level is
subject to plain-error review. Fed. R. Crim. P. 52(b) (“A
plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.”).
An error is plain if the criminal defendant shows each of the
following: he did not waive his right to challenge an alleged
mistake at trial or sentencing; this mistake was clear; it
affected his substantial rights; and leaving the error
uncorrected will undermine the fairness, integrity and public
reputation of judicial proceedings. Puckett v. United States,
556 U.S. 129, 135 (2009).
The first prong is that the defendant must not have
“intentionally relinquished or abandoned” his claim.
Molina-Martinez v. United States, 136 S.Ct. 1338, 1343
(2016) (citing Olano, 507 U.S. at 732–33). Before the
district court, Depue said that his only problems with the
PSR concerned the incarceration dates, which means Depue
affirmatively waived his right to challenge the PSR’s
computations. Depue even called the computations
“correct” and “accurate.” Furthermore, Depue did not avail
himself of the second opportunity to object that the district
court gave him. Because Depue affirmatively waived his
right to challenge the alleged Guidelines errors, he fails to
satisfy the first prong of the plain-error analysis.
Accordingly, Depue cannot satisfy the plain-error standard.
IV. Conclusion
The district court did not abuse its discretion under the
Sixth Amendment and the Federal Rules of Criminal
UNITED STATES V. DEPUE 15
Procedure when it removed Juror No. 9 because it
reasonably determined he was unfit to continue to serve as a
juror for reasons that were unrelated to his views on the
merits of this case. Also, Depue cannot show plain error in
the district court’s calculation of the total offense level
because he affirmatively waived his right to challenge the
alleged Guidelines errors.
Depue’s convictions and sentence are AFFIRMED.