Wednesday, October 18, 2017
Ninth Circuit Panel Unsympathetic to Con Man’s Contentions
At Oral Argument, Judges Rebuff Claim That Perpetrator of $25 Million Fraud Was Unfairly Prejudiced By Removal of Juror, Holding Out for Not Guilty Verdict, Who Insisted His Food Was Being Poisoned
By a MetNews Staff Writer
The contention of a swindler that the trial judge erred by discharging a juror who wanted to acquit him based on the juror’s assertion that other members of the panel were poisoning his food appears to have failed to win favor of three-judge Ninth U.S. Circuit Court of Appeals panel that heard argument in the case in San Francisco.
Facing the near-certainty of an affirmance of his Aug. 3, 2015 conviction, as well as his sentence on Nov. 9 of that year to nearly 22 years in prison, is Brett Depue, who was involved in a massive scheme in Las Vegas to cheat lenders in connection with home mortgages.
Losses were set at more than $25 million, and Depue was ordered to pay $1.6 in restitution.
Hearing argument in his case on Monday were Circuit Judges Richard C. Tallman and Consuelo María Callahan and Senior U.S. District Judge David Alan Ezra of the District of Hawaii, sitting by designation.
Attorney Mario D. Valencia argued that the trial judge abused his discretion by dismissing a juror in the midst of deliberations without adequately investigating the circumstances or making findings.
Juror No. 9 had handed the court attaché who had charge of the jury a note saying:
“I feel someone in this room has poisoned or drugged either my drink or the food I brought for lunch.”
The trial judge, U.S. District Judge Roger Hunt of the District of Nevada, was apprised of the note. Before the juror was brought into the courtroom, Depue, who was representing himself, objected to removal of the juror.
“I can see no way that he could continue, Mr. Depue.”
Juror No. 9 was brought in and the judge inquired why he thought another juror would want to harm him. He replied:
“Because I am the odd man out.”
Each of the three judges hearing the argument expressed agreement with Hunt’s action.
‘Nut’ on Jury
Callahan told Valencia:
“I can’t help but think that if the court had left this juror on, and then they came back and convicted your client, you would be standing up before us and saying, ‘The judge left a nut on the jury—and therefore, set aside the conviction.”
Ezra chimed in:
“I think that would have been the more serious problem, actually. I think a sitting district judge that would allow a juror who displayed bizarre, irrational behavior—for which there was no articulable basis—to remain on a jury would be a serious problem.”
Valencia interjected that Hunt did not verbalize that basis. That wasn’t necessary, Ezra told him, because every lawyer should realize that a judge has the duty to assure a fair trial
‘Martians,’ ‘Hit Man’.
“How do you get a fair trial if you have a person who thinks, for instance, Martians are coming down to get him, or that somebody’s poisoning him…or there’s a hit man on the jury who’s after him?”
The lawyer said that “no one’s talking about Martians or aliens,” and noted that Juror No. Nine’s food, in the absence of poisoning, might simply have “gone bad.”
Tallman expressed the view that when Hunt asked the juror if he could continue to participate in the deliberations and he answered in the negative, that was enough to justify his exclusion.
Valencia also argued that there were patent miscalculations with respect to the amount of money involved and that if corrections were made, the figure would be less than $25 million and that this could affect the sentence, under the federal sentencing guidelines. The contention did not appear to persuade the judges in light of Depue’s concession at trial that the figures were accurate.
The case is USA v. Depue, 15-10553.
Depue’s 2015 trial was his second one in the case. His 2012 conviction—resulting in the same sentence—was reversed by the Ninth Circuit in 2012 on the ground that the government failed to show his waiver of the right to counsel was made knowingly and intelligently.
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