IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH …circ9-datastore.s3.amazonaws.com/datastore/uploads/enbanc/15-10… · Case: 15-10553, 03/26/2018, ID: 10813319, DktEntry: 52,

No. 15-10553

Opinion, January 11, 2018

Panel: TALLMAN, CALLAHAN, EZRA (District Judge).

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRETT DEPUE,

Defendant-Appellant.

On Appeal from the United States District Court

for the District of Nevada

No. 2:10-cr-00121-RLH-RJJ-1

APPELLANT’S PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

MARIO D. VALENCIA

Nevada Bar No. 6154

1055 Whitney Ranch Dr., Ste. 220

Henderson, Nevada 89014

(702) 940-2222

Counsel for Brett Depue

Case: 15-10553, 03/26/2018, ID: 10813319, DktEntry: 52, Page 1 of 38

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF COUNSEL .................................................................................. 1

REASONS FOR GRANTING REHEARING .......................................................... 3

A. The panel opinion conflicts with Symington because the record

evidence discloses a reasonable possibility that Juror 9 was dismissed

because of his views on the merits of the case. .............................................. 3

B. The panel opinion, holding Depue waived, rather than forfeited, his

right to appeal the Guideline calculation errors in the PSR, conflicts

with Perez and Jimenez, which led to the panel erroneously concluding

there was no plain error in the district court’s miscalculation of the

Guidelines. ....................................................................................................10

CONCLUSION ........................................................................................................ 17

CERTIFICATE OF COMPLIANCE ....................................................................... 18

CERTIFICATE OF FILING AND SERVICE ........................................................ 19

ADDENDUM (PANEL DECISION) ...................................................................... 20


ii

TABLE OF AUTHORITIES

CASES

Miller v. Stagner, 757 F.2d 988 (9th Cir. 1985) ........................................................ 9

Molina-Martinez v. United States, __ U.S. __, 136 S. Ct. 1338 (2016) ........... 13, 16

Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997) .................................................7, 9

Puckett v. United States, 556 U.S. 129 (2009) ........................................................11

United State v. Morris, 744 F.3d 1373 (9th Cir. 2014) ...........................................13

United States v. Alvirez, 831 F.3d 1115 (9th Cir. 2016) ..........................................13

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) ........................16

United States v. Beard, 161 F.3d 1190 (9th Cir. 1998) ............................................. 9

United States v. Depue, 879 F.3d 1021 (9th Cir. 2018) ................................... passim

United States v. Dischner, 960 F.2d 870 (9th Cir. 1992) .......................................... 9

United States v. Egbuniwe, 969 F.2d 757 (9th Cir. 1992) ......................................... 9

United States v. Garcia-Lopez, 309 F.3d 1121 (9th Cir. 2002) ...............................13

United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) ................................. 1, 2, 8

United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) ............................. 2, 12, 13

United States v. Joseph, 716 F.3d 1273 (9th Cir. 2013) ..........................................16

United States v. Olano, 507 U.S. 725 (1993) ..........................................................11

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) ...................................... passim

United States v. Potter, 895 F.2d 1231 (9th Cir. 1991) ...........................................12

United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) ............................ passim

United States v. Tapia, 665 F.3d 1059 (9th Cir. 2011)……..…………………14, 15

United States v. Vargem, 747 F.3d 724 (9th Cir. 2014).…..……………………...14

Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011) rev’d on other grounds,

Johnson v. Williams, 568 U.S. 289 (2013) .................................................... 3, 6, 8

Williams v. Johnson, 840 F.3d 1006 (9th Cir. 2016) ................................................. 7

RULES

Fed. R. App. P. 35 …………………………………………………………………1

Fed. R. App. P. 40 …………………………………………………………………1

Fed. R. Crim. P. 23..………………………………………………………….passim

Fed. R. Crim. P. 52(b)………………………………………….…………………13

UNITED STATES SENTENCING GUIDELINES

U.S.S.G. § 2B1.1 ............................................................................................... 13, 14


1

STATEMENT OF COUNSEL

In accordance with FRAP 35(b)(1) and 40(a)(2), Brett Depue respectfully

petitions for panel rehearing and rehearing en banc of the opinion in this case,

United States v. Depue, 879 F.3d 1021 (9th Cir. 2018).

The opinion conflicts with United States v. Symington, 195 F.3d 1080 (9th

Cir. 1999), because the record evidence discloses a “reasonable possibility” that

Juror 9, the “odd man out” (ER1 8, 9), was dismissed because of his views on the

merits of the case. The trial judge removed him because keeping him on the jury

might “force him to capitulate” or “jeopardize the efficacy of a jury verdict.” ER1

16. The panel overlooked or misapprehended this. Depue, 879 F.3d at 1028

(mistakenly claiming judge “ignored” the fact that Juror 9 was the “odd man out”).

The opinion also conflicts with United States v. Hinkson, 585 F.3d 1247 (9th

Cir. 2009), wherein this Court adopted an objective two-part test for “abuse of

discretion” review on appeal. Id. at 1251, 1261-62. Besides making sure a district

court identifie the correct legal standard for decision of the issue before it, the test

requires this Court “to determine whether the district court’s findings of fact, and

its application of those findings of fact to the correct legal standard, were illogical,

implausible.” Id. (emphasis added).

According to the panel in this case, however, the facts and reasons guiding a

district court’s determination of “good cause” to excuse a juror during

deliberations, which is reviewed for “abuse of discretion” on appeal, are irrelevant


2

because this Court only “review[s] judgments.” Depue, 879 F.3d at 1028. This

directly conflicts with Hinkson.

Lastly, the panel held that Depue waived, rather than forfeited, his right to

appeal the Guideline calculation errors in the presentence report (PSR) because he

did not object to the errors in the PSR. Depue, 879 F.3d at 1028-29. That directly

conflicts with United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc), and

United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001), which holds that neither

the failure to object to nor confirmation of the accuracy of a PSR is sufficient to

waive the right to appeal the error.


3

REASONS FOR GRANTING REHEARING

A. The panel opinion conflicts with Symington because the record

evidence discloses a reasonable possibility that Juror 9 was

dismissed because of his views on the merits of the case.

In United States v. Symington, 195 F.3d 1080 (9th Cir. 1999), this Court held

that a trial court “must not dismiss a juror” during the course of deliberations “if

the record evidence discloses any reasonable possibility that the impetus for the

juror’s dismissal stems from the juror’s views on the merits of the case.” Id. at

1087 (emphasis included).1 The reason for this prohibition is clear: “To remove a

juror because he is unpersuaded by the Government’s case is to deny a defendant

his right to a unanimous verdict.” Id. at 1085.

The panel opinion in this case directly conflicts with Symington.

1. The record evidence shows that the judge excused Juror 9, the

“odd man out,” because keeping him on the jury might “force him

to capitulate” or “jeopardize the efficacy of [the] jury[’s]

verdict.”

After deliberating with his fellow jurors for several hours on the first day of

deliberations, Juror 9 submitted a note to the trial judge stating he felt “as though

someone in [the jury] room ha[d] poisoned or drugged [his] drink or the food [he]

brought for lunch.” ER1 4. When the judge asked him why he felt that way, Juror 9

1 See also, Williams v. Cavazos, 646 F.3d 626, 642-43 (9th Cir. 2011) rev’d

on other grounds, Johnson v. Williams, 568 U.S. 289 (2013) (“[T]he Sixth

Amendment does not allow a trial judge to discharge a juror on account of his

views of the merits of the case.”).


4

responded that it was because he was “the odd man out,” (ER1 8, 9) and

complained that after lunch his heart started “pounding really fast and [he] was

beginning to feel a dizziness and a slight headache and a stomachache.” ER1 8-9.

The trial judge followed up by asking whether any of these symptoms were

associated with the emphysema he had separately reported that he suffered from,

but Juror 9 expressly disclaimed any connection between his emphysema and these

symptoms. ER1 11. In response to the judge’s question whether he felt he could

“continue as a juror in the case,” Juror 9 did not refer to any health concerns but

rather to his lack of “trust” in another juror. ER1 12. The trial court then asked if

he could continue to “participate in deliberations if there’s somebody in that group

that [he] can’t trust,” to which Juror 9 equivocally responded, “No, not especially,

no.” Id.

The trial court decided to dismiss the juror “under the circumstances.” ER1

13. After Depue objected to the removal of Juror 9 on the grounds that the trial

judge may be removing “the only holdout,” the judge acknowledged that there was

a collective “feeling” that “he’s the holdout or that he is a holdout,” and

commented that he was “not confident that [Juror 9] is the only holdout.” ER1 16.

The trial judge went on to note that it would be “unfair” to require Juror 9 to

continue to deliberate–––as it “could impair his health even more, or force him to

capitulate” and “would jeopardize the efficacy of the jury verdict.” Id.


5

Taken as a whole, the trial record plainly raises a “reasonable possibility

that the impetus for [Juror 9’s] dismissal stem[med] from the juror’s views on the

merits of the case.” Symington, 195 F.3d at 1087. The trial record shows that at the

time of the dismissal, the trial judge understood Juror 9’s reference to being the

“odd man out” as an assertion that he was a dissenting voice in the jury room. ER1

16. As important, the trial judge’s entire colloquy with Juror 9 reinforced that Juror

9’s difficulties all “stem[med] from his views on the merits of the case.” Juror 9’s

description of himself as an “odd man out” was offered in response to the trial

judge’s question about why he suspected another juror was attempting to harm

him, and his declaration of his contrarian position in the jury room was directly

followed by his complaint of physical ailments. ER1 8-9. Thus, Juror 9’s concerns

about other jurors and his claimed physical maladies were all rooted in his stated

position as a dissenter in the jury’s deliberations.

Notably, the district court did not ask Juror 9 if he would be unable to serve

because of his health; rather, he asked him whether he could continue to

“participate in deliberations” in light of the fact that there was someone in the jury

room “that you can’t trust.” ER1 12. But where a juror has previously indicated

that his concern about his fellow jurors and his symptoms of illness arise directly

out of his status as a dissenting voice in the jury room, the trial judge’s question

about his ability to continue to serve did nothing to separate his dismissal from his


6

views on the merits of the case; quite the opposite, Juror 9’s response that he could

“not especially” continue to serve with a juror he did not “trust” only served to

underscore that his subsequent dismissal stemmed from his views on the case and

his status as a “holdout.” ER1 16.

And against this factual backdrop, the trial judge’s extemporaneous remark

that forcing the juror to continue to serve on the jury “would jeopardize the

efficacy of a jury verdict” (ER1 16) can only be understood as the trial court’s

expression of concern that Juror 9’s continued presence on the jury might frustrate

the orderly resolution of the case. But concerns that a dissenting juror may extend

the proceedings or prevent a final resolution from being reached may not animate a

trial court’s decision to dismiss a juror. See Symington, 195 F.3d at 1088 (while

there may have been some reason to doubt the removed juror’s abilities as a juror,

there was also considerable evidence suggesting she was removed because she held

a position opposite to other jurors on the case).

Here, the record evidence, at a minimum, raises a “reasonable possibility”

that the dismissal was based on Juror 9’s “position opposite to other jurors.” Id.

Under these circumstances, the judge had only two options: send him back to

continue deliberating or declare a mistrial. Id.at 1087. What he legally was not

permitted to do was to remove the “odd man out.” See e.g., Williams, 646 F.3d at

646 n.17 (“[T]he deadlock-breaking dismissal of a holdout juror on an improper


7

basis is an unconstitutional form of interference with deliberations.”). This violated

Depue’s Sixth Amendment rights. Symington, 195 F.3d at 1085; cf., Perez v.

Marshall, 119 F.3d 1422, 1427 (9th Cir. 1997) (removal of holdout juror affirmed

on appeal because “nothing in the record” indicated the judge’s decision was

clouded by his desire to have a unanimous verdict).2

2. The dismissal of Juror 9 is also unconstitutional because there

is no record evidence that “good cause” existed.

Federal Rule of Criminal Procedure 23(b) allows a judge to remove a juror

during deliberations for “good cause.” The panel opinion acknowledges that the

trial judge did not “investigat[e] [Juror 9’s] mental state” before concluding that he

was “unfit” to continue to serve as a juror. Depue, 879 F.3d at 1028. Nor is there

any record evidence that the trial judge concluded Juror 9’s mental state rendered

him “unfit” to serve. Despite this evidentiary void, the panel found the dismissal of

Juror 9 was not an abuse of discretion and excused the trial judge’s failure to “spell

2 The trial court’s comment that it was not “confident that [Juror 9 is] the

only holdout in the jury” suggests a misunderstanding of the constitutional

limitations on a trial court’s discretion to dismiss a juror. The question before the

trial court was not whether Juror 9 was “a hold out” or “the only holdout;” rather,

the Sixth Amendment-mandated inquiry is whether the dismissal of the juror stems

from the juror’s views on the case. As explained in detail above, the record

establishes at least a “reasonable possibility” that the dismissal was tainted by

what the trial court acknowledged to be Juror 9’s “holdout” status, and as a

consequence, the dismissal violated Depue’s Sixth Amendment rights. Williams v.

Johnson, 840 F.3d 1006, 1009 (9th Cir. 2016) (“[T]he dismissal of a juror violates

the Sixth Amendment when it is ‘reasonably possible that the impetus for [the

juror’s] dismissal came from her position on the merits of the case.’”).


8

out the reasons” for dismissing him because this Court “review[s] judgments, not

the reasons guiding the courts below.” Depue, 879 F.3d at 1028.

This conflicts with United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009)

(en banc), holding that “abuse of discretion” review requires this Court to consider

a district court’s factual findings and the application of those factual findings to the

correct legal standard to determine if the district court’s decision was illogical or

implausible in light of the facts. Id. at 1251, 1261-62.

By relieving the trial court of any obligation to conduct a meaningful inquiry

into a juror’s potential incapacity to continue to serve as a juror, and of any

requirement to provide the reasons for its decision to dismiss a juror during

deliberations, the panel opinion effectively eviscerates Rule 23(b)’s “good cause”

standard. Except for situations where there is a “reasonable possibility that the

impetus for the juror’s dismissal stem[med] from the juror’s views on the merits of

the case,” Symington, 195 F.3d at 1087, the panel opinion vests plenary discretion

in a trial court to remove jurors during deliberations. That standard cannot be

reconciled with the plain meaning of Rule 23(b)’s “good cause” standard, which

this Court has held is constitutionally required. See Williams, 646 F.3d at 647

(holding that the absence of “good cause” in dismissing a juror renders the removal

unconstitutional under the Sixth Amendment).


9

Here, the trial judge failed to conduct the minimum of what would be

required to dismiss Juror 9 for “good cause” because of a mental incapacity (or any

other reason), and thus Juror 9’s removal was unconstitutional.

Rule 23(b) is designed to remedy situations where “one of the jurors is

seriously incapacitated or otherwise found to be unable to continue service upon

the jury.” United States v. Egbuniwe, 969 F.2d 757, 761 (9th Cir. 1992). Consistent

with Rule 23’s purpose, the case law is replete with examples where jurors are

removed for “good cause” when the juror was physically, mentally, or emotionally

incapable of continuing with deliberations. See Perez, 119 F.3d at 1427; Miller v.

Stagner, 757 F.2d 988, 995 (9th Cir. 1985) (juror had flu and could not continue

deliberating); United States v. Dischner, 960 F.2d 870 (9th Cir. 1992) (juror broke

shoulder and could not continue with deliberations for more than a week); United

States v. Beard, 161 F.3d 1190, 1193-94 (9th Cir. 1998) (juror was too emotionally

unstable to continue deliberating).

Here, by contrast, there is no record evidence that Juror 9, by virtue of some

physical or mental incapacity, was unable to continue as a juror.

The panel opinion implies that Juror 9 may have been removed because his

“allegations did not reflect favorably on his mental state.” Depue, 879 F.3d at

1028. But the trial court did not excuse Juror 9 because of mental instability (see

ER1, 13, 16, 17); nor did the court conduct any investigation into his mental state.


10

Depue, 879 F.3d at 1028. But “good cause” under Rule 23(b) requires more than a

suspicion that the person may be unable to serve.

Tellingly, the panel opinion notes that in not conducting such an inquiry into

his mental state, “the trial judge spared him, the parties and the court the indignity

and expense of investigating his mental state.” Depue, 879 F.3d at 1028. But in

failing to conduct a factual inquiry into Juror 9’s mental state, the trial judge spared

imposing a burden on Juror 9 at the expense of Depue’s constitutional rights. A

juror’s inconvenience must always give way to a defendant’s Sixth Amendment

rights.

Here, there is no basis in the record to find that “good cause” existed to find

that Juror 9 could not deliberate. In the absence of any facts to support a

conclusion that Juror 9 was mentally or physically incapable of continuing to

serve, his removal from the jury violated Rule 23(b) and Depue’s Sixth

Amendment rights.

B. The panel opinion, holding Depue waived, rather than forfeited,

his right to appeal the Guideline calculation errors in the PSR,

conflicts with Perez and Jimenez, which led to the panel

erroneously concluding there was no plain error in the district

court’s miscalculation of the Guidelines.

The Guideline errors in this case are “subject to plain-error review.” Depue,

879 F.3d at 1028. Plain-error review involves four prongs: (1) there is an error that

was not intentionally relinquished or abandoned; (2) the error was clear; (3) it


11

affected the appellant’s substantial rights; and (4) 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 panel in this case did not consider the last three prongs because it

erroneously held that Depue waived, rather than forfeited, his right to appeal the

errors by failing to object to the PSR. Depue, 879 F.3d at 1028-29. Under this

Court’s decisions in United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc),

and United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001), Depue only forfeited

his claim, and the panel should have considered all four prongs of the plain error

standard. As shown below, the trial court committed plain error and Depue is

entitled to relief.

1. Depue forfeited his argument that the district court

miscalculated the Guidelines.

Forfeited rights are reviewable on appeal for plain error; waived claims are

not. Perez, 116 F.3d at 845. Waiver, however, requires more than simply failing to

object or mistakenly stating the PSR is correct. There must be record evidence that

the appellant “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right.”

United States v. Olano, 507 U.S. 725, 733 (1993). Specifically, the record must

show the defendant (a) knew of the specific legal basis for the claim, and (b)

“intentionally relinquished” it, or abandoned it, for “some tactical or other reason.”

Perez, 116 F.3d at 845-46.


12

There is no such record evidence here. The panel’s holding that Depue

“affirmatively waived” the sentencing errors (Depue, 879 F.3d at 1028-29) directly

conflicts with United States v. Jimenez, 258 F.3d at 1124.3 In Jimenez, this Court

held that neither the failure to object to nor confirmation of the accuracy of a PSR

is sufficient to waive the right to appeal the error. See also United States v. Potter,

895 F.2d 1231, 1238 n.6 (9th Cir. 1991) (reviewing the defendant’s sentence for

plain error despite the fact that defense counsel “agreed with the prosecutor and the

court to proceed on the basis of the [PSR].”); see also, e.g., Perez, 116 F.3d at 844-

45 (holding defendant did not “waive” his right to appeal an erroneous jury

instruction although his attorney affirmatively agreed to the instruction at trial; the

error was deemed “forfeited,” and this court proceeded under plain-error review).

There is no evidence in the record that Depue, who was representing

himself, was aware of the legal basis of his claim (i.e., how loss for sentencing

purposes in a mortgage fraud case is correctly calculated), and nevertheless

intentionally relinquished or abandoned those claims. Depue had no tactical reason

to ignore these errors. They resulted in a higher Guidelines range and a longer

3 The opinion says Depue “called the [Guideline] computations [in the PSR]

‘correct’ and ‘accurate.’” Depue, 879 F.3d at 1029 (emphasis added). But, Depue

never commented on the accuracy of the computations specifically. ER1 25.


13

sentence, while providing him no benefit before the district court. Indeed, even the

government itself never argued before this Court that Depue waived his claim. 4

In short, by failing to object, Depue forfeited, but did not waive, the

Guideline calculation errors. Jimenez, 258 F.3d at 1124; see also, e.g., Molina-

Martinez v. United States, __ U.S. __, 136 S. Ct. 1338, 1341, 1343 (2016)

(Guideline calculation errors “that went unnoticed by the [district] court and the

parties” were reviewed for plain error); United States v. Alvirez, 831 F.3d 1115,

1126 (9th Cir. 2016) (rejecting waiver). As a consequence, the claimed sentencing

errors should have been reviewed for plain error under Federal Rule of Criminal

Procedure 52(b).

2. The district court plainly erred in its Guideline calculations

when it determined loss based on sale price.

There was error in this case and it was plain. It’s clearly established in this

Circuit that loss under U.S.S.G. § 2B1.1(b)(1) in mortgage fraud cases is calculated

by taking the unpaid principal amount of a fraudulently obtained loan and reducing

it by the amount the lender recovers by disposing of the property in a foreclosure

sale. United State v. Morris, 744 F.3d 1373, 1375 (9th Cir. 2014).

The district court, however, erroneously used the sales prices of the

properties (relied upon in the government’s loss calculation) instead of the unpaid

4 The government waived the waiver argument because it did not argue in its

answering brief that Depue waived the Guideline errors. See, e.g., United States v.

Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir. 2002).


14

principal amount of the loans to calculate loss. See ER2 172-175. The district court

thus violated the plain rule of Morris by basing loss amount on the sales price

rather than the unpaid principal value of the mortgages.

3. The district court’s error affected Depue’s substantial rights.

The error affected Depue’s substantial rights because there is a reasonable

probability he would have received a shorter sentence had the district court

properly calculated the Guidelines. See United States v. Vargem, 747 F.3d 724, 729

(9th Cir. 2014) (when a sentencing judge incorrectly calculates the Guidelines

range, potentially resulting in the imposition of a greater sentence, the error affects

the defendant’s substantial rights). “A ‘reasonable probability’ is, of course, less

than a certainty, or even a likelihood.” United States v. Tapia, 665 F.3d 1059, 1061

(9th Cir. 2011).

There were 106 properties involved in the fraudulent scheme, according to

the government. ER2 169. And by using the sales price instead of the unpaid

principal amount of the loan, see e.g., ER2 172-175, the district court calculated a

loss of $25,488,050. ER2 169. But if that number fell below $25 million, it would

reduce Depue’s offense level by two points. See U.S.S.G. § 2B1.1(b)(1)(K) & (L).

While the loan documents for all 106 properties underlying the loss

calculation are not in the record, the record evidence for the 17 properties charged

in the indictment shows material differences between the principal loan amount


15

and the sales price. See ER2 41; see also, e.g., ER2 136, 138 (loan documents

admitted at trial).

In one example, the property located at 2324 Cockatiel had a sales price of

$405,000. ER2 175 (#18); ER2 138. But the principal amount of the loan was

$384,750. ER2 136, 138. Instead of deducting the amount the lender recovered at

the foreclosure sale ($200,000) from the principal amount of the loan ($384,750),

the government subtracted the recovery amount from the sales price of the home

($405,000). ER2 175 (#18). By using this method, the government erroneously

increased the loss amount attributed to Depue by $20,250. If an error of the same

magnitude were repeated in 24 other properties, the loss amount would drop below

$25 million, enough to lower Depue’s offense level.5 With 106 properties in the

loss calculation, there is at least a reasonable probability that a correction of the

error will result in a lower Guidelines range. Tapia, 665 F.3d at 1061 (“reasonable

probability” is less than a certainty or even a likelihood).6

5 There were other mistakes as well. For example, the government did not

always write the correct sales price on its loss chart. Opening Brief at 40-41

(showing how this type of mistake, at least for one property, resulted in overstating

the amount of the loss by $120,000). And, some properties were mistakenly

counted twice for loss purposes. Id. at 38-40. 6 The district court added 22 points for a loss of “[m]ore than $25,000,000,”

which resulted in a Guidelines range of 262-327 months. ER1 28. But if the loss

amount is less than $25 million, Depue’s offense level would drop to a Guidelines

range of 210-262 months.


16

With that correction, there is a reasonable probability that Depue’s sentences

would have been lower too. “When a defendant is sentenced under an incorrect

Guidelines range—whether or not the defendant’s ultimate sentence falls within

the correct range—the error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome absent the error.” Molina-Martinez,

136 S.Ct. at 1345. Depue has thus shown that his substantial rights were affected,

and he should not be barred from relief on appeal. Id. at 1346 (“[W]hen a

defendant shows that the district court used an incorrect range, he should not be

barred from relief on appeal simply because there is no other evidence that the

sentencing outcome would have been different had the correct range been used.”).

4. The district court’s error undermines the appearance of

fairness and integrity of the courts.

Finally, the district court’s error “seriously affect[ed] the fairness, integrity,

or public reputation of judicial proceedings.” United States v. Ameline, 409 F.3d

1073, 1078 (9th Cir. 2005) (en banc) (quotation omitted).

This court has “regularly deemed [this] fourth prong of the plain error

standard to have been satisfied where, as here, the sentencing court committed a

legal error that may have increased the length of a defendant’s sentence.” United

States v. Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013).


17

CONCLUSION

For the foregoing reasons, the panel is requested to rehear the case. In the

alternative, the en banc Court should rehear the case to maintain uniformity of the

Court’s decisions.

DATED: March 26, 2018.

s/ Mario D. Valencia

MARIO D. VALENCIA



18

CERTIFICATE OF COMPLIANCE

Form 11. Certificate of Compliance Pursuant to Circuit Rules 35-4 and 40-1

I certify that pursuant to Circuit Rule 35-4 or 40-1(a), the attached petition for

panel rehearing/petition for rehearing en banc (check applicable option):

Contains 4,052 words, including footnotes (petitions and answers must not

exceed 4,200 words), and is prepared in a format, type face, and type style that

complies with FRAP 32(a)(4)-(6) (“Times New Roman”).

or

Is in compliance with FRAP 32(a)(4)-(6) and does not exceed 15 pages.


MARIO D. VALENCIA



19

CERTIFICATE OF FILING AND SERVICE

When Not All Case Participants are Registered for the

Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing Petition for Panel

Rehearing and Rehearing En Banc with the Clerk of the Court for the United States

Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on

March 26, 2018.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF

users. I have mailed the foregoing Petition for Panel Rehearing and Rehearing En

Banc by First-Class Mail, postage prepaid, or have dispatched it to a third party

commercial carrier for delivery within 3 calendar days to the following non-

CM/ECF participants:

BRETT IVAN DEPUE # 81757-208

FCI Safford

Federal Correctional Institution

P.O. Box 9000

Safford, AZ 85548

Defendant-Appellant


MARIO D. VALENCIA



20

ADDENDUM (PANEL OPINION)

Ninth Circuit Rule 40-1(c)


United States v. Depue, 879 F.3d 1021 (2018)

18 Cal. Daily Op. Serv. 452, 2018 Daily Journal D.A.R. 399

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

879 F.3d 1021 United States Court of Appeals,

Ninth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v.

Brett DEPUE, Defendant–Appellant.

No. 15-10553 |

Argued and Submitted October 16, 2017 San Francisco, California |

Filed January 11, 2018

Synopsis

Background: Defendant was convicted in the United States District Court for the District of

Nevada, Roger L. Hunt, Senior District Judge, of wire fraud and conspiracy to commit bank

fraud, mail fraud, and wire fraud. Defendant appealed.

Holdings: The Court of Appeals, Callahan, Circuit Judge, held that:

[1]

district court did not abuse its discretion during jury deliberations by dismissing juror, and

[2]

defendant affirmatively waived his right to challenge computations in pre-sentence report

(PSR).

Affirmed.

West Headnotes (17)

[1]

Criminal Law Issues related to jury trial

Criminal Law Issues related to jury trial


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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.

Cases that cite this headnote

[2]

Criminal Law Sentencing and Punishment

When a defendant fails to timely object to the District Court’s calculation of a sentence,

the Court of Appeals review for plain error.


[3]

Criminal Law Necessity of Objections in General

Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights; 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.


[4]

Criminal Law Burden of showing error

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.



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[5]

Jury Discharge of juror or jury pending trial

District court did not abuse its discretion during jury deliberations in mortgage fraud

prosecution by dismissing juror, who was possible hold-out, after juror reported he was

possibly poisoned by another juror and physically unwell, since dismissal did not stem

from juror’s views on merits of case; although juror stated he was “odd man out,” trial

court ignored remark and questioned him on his ability to serve as juror, probed juror

about poisoning allegation, asked about sequence of events, juror’s allegation did not

reflect favorably on his mental state, and court noted there might well be more than one

hold-out juror. U.S. Const. Amend. 6; Fed. R. Crim. P. 23(b)(3).


[6]

Jury Representation of community, in general

Jury Competence for Trial of Cause

The Sixth 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. U.S.

Const. Amend. 6.


[7]


A district court may dismiss a juror during deliberations for good cause, which includes a

juror’s physical incapacity, a juror’s untruthfulness or misconduct, including violations

of the court’s instructions to the jury, and a juror’s inability to deliberate impartially. Fed.

R. Crim. P. 23(b)(3).





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[8]


Good cause enabling a district court to dismiss a juror during deliberations broadly

embraces all kinds of problems, temporary as well as those of long duration, that may

befall a juror during jury deliberations. Fed. R. Crim. P. 23(b)(3).


[9]


Generally, the decision to excuse a juror is committed to the district court’s discretion.


[10]


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.


[11]


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.


















[12]


Trial judges remain empowered with the necessary authority to handle special challenges

concerning juror dismissal.


[13]

Criminal Law Theory and Grounds of Decision in Lower Court


Trial judges are not obligated to spell out the reasons they excuse a juror because the

Court of Appeals reviews judgments, not the reasons guiding the courts below.


[14]

Criminal Law Sentencing and Punishment

Plain-error review applied to wire fraud defendant’s challenge of trial court’s calculation

of loss amount under Sentencing Guidelines, where defendant did not object to any

alleged Guidelines errors during trial or sentencing. Fed. R. Crim. P. 52(b).


[15]

Criminal Law Necessity of Objections in General







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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. Fed. R. Crim. P. 52(b).


[16]

Criminal Law Estoppel or Waiver

The first prong of the plain error test is that the defendant must not have intentionally

relinquished or abandoned his claim. Fed. R. Crim. P. 52(b).


[17]

Criminal Law Estoppel or Waiver

Wire fraud defendant affirmatively waived his right to challenge computations in

pre-sentence report (PSR) by stating before district court that his only problems with

PSR concerned the incarceration dates, precluding plain error review of trial court’s

calculation of total offense level under Sentencing Guidelines; defendant even called the

computations “correct” and “accurate.”


*1022 Appeal from the United States District Court for the District of Nevada, Roger L. Hunt,

Senior District Judge, Presiding, D.C. No. 2:10-cr-00121-RLH-RJJ-1

Attorneys and Law Firms

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.

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and David A. Ezra,**

District Judge. **

The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.

Opinion

OPINION

CALLAHAN, Circuit Judge:

*1023 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 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

*1024 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.

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.

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 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 Fed.Appx. 732 (9th Cir. 2015).


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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.”

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 *1025

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 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.”


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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

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

*1026 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. §

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.

2

A district court properly begins “sentencing proceedings by [attempting to] correctly calculat[e] the applicable Guidelines range.”

Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013) (citation and internal quotation marks

omitted).

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.

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

[1]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).


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[2]

[3]

[4]

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, 113

S.Ct. 1770, 123 L.Ed.2d 508 (1993). *1027 “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).

III. Discussion

A. Juror Dismissal

[5]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.

[6]

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, 95 S.Ct. 692,

42 L.Ed.2d 690 (1975); see also Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119

L.Ed.2d 492 (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, 115 S.Ct. 2310, 132 L.Ed.2d 444 (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.

[7]

[8]

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. Laborers Union





















Local No. 324, 55 F.3d 1445, 1452 (9th Cir. 1995), cert. denied, 517 U.S. 1219, 116 S.Ct. 1847,

134 L.Ed.2d 948 (1996); a juror’s untruthfulness or “misconduct,” including “violation[s] of the

court’s instructions to the jury,” Vartanian, 476 F.3d at 1098–99; 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).

[9]

[10]

[11]

[12]

[13]

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 *1028 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, 107 S.Ct. 2852, 97 L.Ed.2d 258 (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 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.

B. Calculation of the Loss Amount for Guidelines–Based Sentencing

[14]

[15]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, 129 S.Ct. 1423, 173 L.Ed.2d

266 (2009).

[16]

[17]

The first prong is that the defendant must not have “intentionally relinquished or

abandoned” his claim. Molina–Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1343,

194 L.Ed.2d 444 (2016) (citing Olano, 507 U.S. at 732–33, 113 S.Ct. 1770). Before the district

court, *1029 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 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.

All Citations

879 F.3d 1021, 18 Cal. Daily Op. Serv. 452, 2018 Daily Journal D.A.R. 399

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.


CA No. 15-10553

District Court No. 2:10-cr-00121-RLH-RJJ

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRETT DEPUE,

Defendant-Appellant. ________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA ________

GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT’S

PETITION FOR REHEARING OR REHEARING EN BANC ________

DALYE ELIESON ADAM FLAKE United States Attorney Assistant United States Attorney District of Nevada ELIZABETH O. WHITE 501 Las Vegas Blvd S., Suite 1100 Appellate Chief Las Vegas, Nevada 89101 (702) 388-6336 Attorneys for the United States

Date submitted: May 14, 2018


i

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................. 1

II. ISSUES PRESENTED FOR REVIEW ............................................... 1

III. STATEMENT OF THE CASE ........................................................... 2

IV. STATEMENT OF RELEVANT FACTS ............................................ 3

V. SUMMARY OF ARGUMENT .......................................................... 7

VI. ARGUMENT .................................................................................... 8

A. As the Panel Correctly Held, the District Court’s Decision to Dismiss Juror 9 Was a Proper Exercise of Discretion. ................. 8

B. As This Court Correctly Held, Depue Could Not Show Plain Error Regarding the Loss Amount. ........................................... 12

C. Neither Panel Rehearing nor Rehearing En Banc Is Warranted. .. 15

VII. CONCLUSION ............................................................................... 16


CERTIFICATE OF SERVICE


ii

TABLE OF AUTHORITIES

Federal Cases

United States v. Alvirez, 831 F.3d 1115 (9th Cir. 2016) .................................... 14

United States v. Araujo, 62 F.3d 930 (7th Cir. 1995) .................................. 11, 12

United States v. Beard, 161 F.3d 1190 (9th Cir. 1998) ....................................... 9

United States v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000) ........................... 13

United States v. Depue, 595 Fed. Appx. 732 (9th Cir. Mar. 5, 2015) .................. 2

United States v. Depue, 879 F.3d 1021 (9th Cir. 2018) ...............................passim

United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. 2013) ...................... 14

United States v. Hammons, 558 F.3d 1100 (9th Cir. 2009) ............................... 14

United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) .................................. 14

United States v. Mageno, 786 F.3d 768 (9th Cir. 2015) .................................... 15

United States v. Perez, 116 F.3d 840 (9th Cir 1997) ......................................... 13

United States v. Popov, 742 F.3d 911 (9th Cir. 2014) ....................................... 14

United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) ..................................... 14

United States v. Scrivner, 114 F.3d 964 (9th Cir. 1997) ............................... 13, 15

United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) ....................... 8, 9, 11

United States v. Vartanian, 476 F.3d 1095 (9th Cir. 2007) ................................. 8

United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) .................................. 14

United States v. Walter-Eze, 869 F.3d 891 (9th Cir. 2017) ................................ 14


iii

United States v. Yijun Zhou, 838 F.3d 1007 (9th Cir. 2016) ........................ 13, 15

Federal Statutes

18 U.S.C. § 1343 .......................................................................................... 2

18 U.S.C. § 1349 .......................................................................................... 2

Federal Rules

Fed.R.App.P. 35 .................................................................................... 1, 15

Fed.R.Crim.P. 23 ......................................................................................... 8

Fed.R.Crim.P. 32 ....................................................................................... 12


1

I.

INTRODUCTION

Pursuant to Rule 35(e) of the Federal Rules of Appellate Procedure, the

government respectfully files this response in opposition to Defendant Brett

Depue’s petition for rehearing of the panel’s opinion in the above-captioned

case, United States v. Depue, 879 F.3d 1021 (9th Cir. 2018). In its opinion, the

panel rejected Depue’s claim that the district court abused its discretion when

it dismissed a juror who had complained of illness and said he believed another

juror was poisoning him; and it found no plain error in the district court’s

adoption of the loss calculation in the presentence report, the accuracy of

which Depue confirmed at sentencing.

The panel’s decisions are correct, and are consistent with Supreme Court

and this Court’s precedent. Rehearing is therefore unwarranted.

II.

ISSUES PRESENTED FOR REVIEW

1. Whether, as the panel correctly held, the district court’s decision to

dismiss Juror 9 was a proper exercise of discretion.

2. Whether, as the panel correctly held, Depue could not show plain error

regarding the loss amount.

3. Whether panel rehearing and rehearing en banc are unwarranted.


2

III.

STATEMENT OF THE CASE

On March 10, 2010, the federal grand jury in the District of Nevada

returned a multi-count indictment against Depue and others for violating 18

U.S.C. § 1349 (Count 1) and §§ 1343, and 2 (Counts 2-12). ER 37-48. The jury

in the first trial did not reach a verdict, and the court declared a mistrial on

February 16, 2012. CR 137. Depue opted to represent himself and was retried

beginning February 27, 2012. CR 161. On March 6, 2012, the jury found

Depue guilty on all remaining Counts. CR 175, 177.

Depue appealed and this Court reversed his conviction, finding that the

district court had incorrectly informed him regarding the maximum sentence

he faced when it allowed him to proceed in pro se after telling him that he faced

a maximum sentence of 30 years, when in fact some of the charges carried a

maximum sentence of only 20 years. United States v. Depue, 595 Fed. Appx. 732

(9th Cir. March 5, 2015) (unpublished).

Depue’s third jury trial commenced on July 27, 2015. CR 300. On July

30, the government rested and Depue, who represented himself and called no

witnesses, rested as well. CR 303. On July 31, Juror 9 sent a note to the district

court, the court questioned him, and dismissed him thereafter, replacing him


3

with an alternate juror. ER 3-20. The jury resumed deliberations on August 3,

2015, and found Depue guilty on the remaining counts. CR 311, 315.

The court held a sentencing hearing on November 9, 2015, where Depue

represented himself and raised no relevant objections, and the district court

sentenced Depue principally to 262 months’ imprisonment. ER 21-36. It

entered judgment the same day. ER 235-43.

Depue appealed, and this Court upheld his convictions and sentence. It

held that the district court properly dismissed Juror 9 for a material problem

impeding fair deliberations and not due to the juror’s view on the merits of the

case, and that Depue had not shown that the district court committed plain

error in calculating the loss amount when Depue had affirmatively agreed that

the PSR was accurate. Depue, 879 F.3d at 1023. Depue petitioned for rehearing

and rehearing en banc, AR 52, two amici filed briefs in support of Depue’s

position, AR 53, 57, and the government hereby opposes rehearing.

IV.

STATEMENT OF RELEVANT FACTS

On the first day of jury deliberations, the district judge received a note

from Juror 9, who wrote, “I feel as though someone in this room has poisoned

or drugged either my drink or the food I brought for lunch[.]” ER 4. The judge

also noted that the same juror had alleged his bicycle had been vandalized. Id.


4

The judge called Juror 9 for questioning, and after telling him not to

discuss anything the jury had been deliberating about, asked, “[W]hat it is that

you observed or why it is you feel that someone has poisoned or drugged your

food or drink?” ER 8. Juror 9 responded:

Well, umm, I seem to be the odd man out on this and, umm, when I came in to the courtroom at the very last—last time to hear the testimony, rereading of the testimony, I—my heart started pounding really fast and I was beginning to feel a dizziness and a slight headache and a stomachache. . . . And . . . that was a concern of mine. I felt like it was seeing how I am the odd man out—”

ER 8-9 (first ellipsis added, second ellipsis in original). The judge interrupted,

expressly instructing Juror 9 not to discuss his position in the deliberations,

and again asked what made the juror feel that his food or drink was poisoned.

The juror said:

Well, it’s—umm—I, umm—I think it’s—from the cause of—it’s just seems that there was a cause and effect from drinking my—at the lunch, umm, one—one of the individuals took interest in how much I ate and, umm, I thought that was kind of odd and, in that regard, when I came in here, I was feeling, umm, as I’ve described before.

ER 9. Juror 9 confirmed he had brought his own food and drink. ER 9. He

said he believed his food may have been tampered with when he went to the

bathroom. ER 10-11.

The judge asked Juror 9 if he felt he could continue as a juror, and he

responded: “Well, in the capacity of sitting and—but I, at this point, do not


5

trust someone in that—in that jury room, I do not trust somebody in that jury

room, so . . .” ER 12. The judge asked specifically if Juror 9 thought he could

participate in deliberations, and he responded: “Not—not especially, no.” Id.

The judge asked whether the Juror 9 was “still feeling symptoms,” and he said

he was feeling “[j]ust slight symptoms.” Id. The judge and Juror 9 then

discussed Juror 9’s allegations that someone had vandalized his bike on two

separate occasions during the trial, confirming that the court security officers

had offered to keep the bike indoors, but that Juror 9 declined. ER 12-13.

The judge then stated: “Well, sir, I’m concerned—I’m concerned about

your health. It appears to the Court that it would be improper to have you

attempt to continue to serve as a juror under the circumstances. I’m going to

excuse you as a juror.” ER 13. The judge also arranged for the juror’s medical

checkup, instructing the court security officers to facilitate Juror 9’s departure

and to ensure the medical checkup occurred. ER 13, 15.

Depue objected, ER 16, but the judge explained that he thought it would

be “patently unfair” to force Juror 9 to continue. ER 16. The judge said his

“concern is for [Juror 9] and his health and for the integrity of the decision of

the jury,” and accordingly dismissed Juror 9. ER 17.

In preparation for sentencing, the probation office prepared a

presentencing investigation report (“PSR”), which found that “the


6

investigation identified no less than 102 properties involved in the instant

conspiracy.” PSR 10. It further found that, as of the date of the report, “Depue

and his co-schemers caused a loss to lending institutions in the amount of

approximately $25,488,050.” Id.

At sentencing, Depue objected to the PSR’s recitation of his

incarceration dates, but said that “[o]ther than that, the rest of it appeared to be

correct.” ER 25; see also id. (“[O]ther than those dates there in that report,

everything else appears to be accurate.”). The court therefore adopted the

recitations in the PSR as its findings of fact, ER 25-26, calculated an advisory

guidelines range of 262 to 327 months, ER 26, and imposed a low-end

guidelines sentence of 262 months’ imprisonment, ER 30.

Depue appealed, and this Court affirmed. United States v. Depue, 879 F.3d

1021 (9th Cir. 2018). First, the Court upheld the dismissal of Juror 9,

concluding that he “was removed for reasons other than his views on the

merits of the case.” Id. at 1028. Specifically, the Court found that “Juror No. 9

was removed because[ ] he said he was physically unwell; he said that he could

not serve with his fellow jurors; he said he did not trust ‘someone’ in the jury

room; and/or he made conclusory allegations against them,” and that “Juror

No. 9’s views on the case played no part in the district court’s decision to

dismiss him.” Id. In addition, the Court stressed that “a trial judge is charged


7

with maintaining the courtroom’s dignity as well as managing the expeditious

flow of voluminous information, motions, evidence, and actors.” Id. The

Court noted that “Juror No. 9’s allegations did not reflect favorably on his

mental state” and that “[t]he trial judge spared him, the parties, and the court

the indignity and expense of investigating his mental state.” Id.

Second, the Court found that Depue “affirmatively waived his right to

challenge the PSR’s computations” noting that he “even called the

computations ‘correct’ and ‘accurate.’” Id. at 1029. In light of that affirmative

waiver, the Court found that Depue could not satisfy his burden under the

plain error standard of review. Id.

V.

SUMMARY OF ARGUMENT

In seeking rehearing, Depue and amicus the National Association of

Criminal Defense Lawyers (NACDL) argue that the record discloses a

reasonable possibility that the impetus for Juror 9’s dismissal stemmed from

his views on the merits of the case, and that the record does not demonstrate

that Juror 9 suffered from mental impairment. They are incorrect. This Court

properly held that the district court acted within its discretion by dismissing

Juror 9 for reasons not related to his views on the merits.


8

Depue and amicus the Ninth Circuit Federal Public and Community

Defenders (NCFPCD) claim the Court erred in finding that Depue could not

show plain error with respect to the loss calculation because he failed to object

to the facts contained in the PSR. Once again, they are incorrect. This Court

has repeatedly held that alleged factual errors—such as loss amount—do not

rise to the level of plain error.

VI.

ARGUMENT

A. As the Panel Correctly Held, the District Court’s Decision to Dismiss Juror 9 Was a Proper Exercise of Discretion.

1. Standard of Review

This Court “review[s] a district court’s dismissal of a juror during

deliberations for abuse of discretion and the district court’s factual findings

relating to the issue of juror misconduct for clear error.” United States v.

Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007). It does so “because as a general

matter, the district court is in the best position to evaluate the jury’s ability to

deliberate.” United States v. Symington, 195 F.3d 1080, 1085 (9th Cir. 1999)

(citations, quotations, and alterations omitted).

2. Argument

Federal Rule of Criminal Procedure 23(b) allows the district court to

dismiss a juror during deliberations for good cause. Fed.R.Crim.P. 23(b).


9

Good cause includes sickness, but also “embraces all kind of problems—

temporary as well as those of long duration—that may befall a juror during

jury deliberations.” United States v. Beard, 161 F.3d 1190, 1193 (9th Cir. 1998)

(citation and quotation omitted).

The district court may properly dismiss a juror during deliberations if the

juror’s health prohibits him from participating in deliberations. Symington, 195

F.3d at 1085. “[I]f 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.” Id. at 1087.

Juror 9 wrote a note stating that he was sick because he thought

someone was poisoning his food (which he brought from home, in spite of the

fact that the court ordered that the jury be provided meals during deliberations,

see CR 307). This same juror had previously complained that during the trial,

someone had vandalized his bike on two separate occasions, but declined the

court security officers’ offer to keep it in their care. ER 12−13. The district

court questioned the juror, who said that he “[did] not trust someone in that

room,” did not feel he could participate in deliberations, and still felt “slight

symptoms.” ER 12. The judge excused the juror, explaining that he was


10

concerned about the juror’s health and that it would be “improper to have

[him] attempt to continue to serve as a juror under the circumstances.” ER 13.1

In seeking rehearing, Depue and the NACDL claim that the record

discloses a reasonable possibility that the impetus for dismissing Juror 9 was

his view on the merits. AR 52 at 3−7; AR 57 at 8−12. They are incorrect. As

the panel correctly recounted, the district court removed Juror 9 because “he

said he was physically unwell; he said that he could not serve with his fellow

jurors; he said he did not trust “someone” in the jury room; and/or he made

conclusory allegations against them.” Depue, 879 F.3d at 1028. Moreover, the

court properly ignored Juror 9’s unprompted statement that he felt like the

“odd man out” and questioned him solely on his ability to serve as a juror. Id.

at 1028.2

1 The judge did not state whether he was worried about Juror 9’s physical health or mental health.

2 Because the district court properly ignored that remark, no

explanation for it was sought or given. NACDL’s characterization of Juror 9 as a “self-avowed holdout” is inaccurate. Juror 9 never referred to himself as a “holdout.” Rather, he referred to himself as “the odd man out,” an unsurprising statement in light of his belief that he was being poisoned by other jurors and his allegation that his bicycle had been repeatedly vandalized. Any suggestion that his “odd man out” comment implicitly referred to his position in the deliberations, rather than to his clearly expressed belief that one or more of the other jurors were out to get him, is pure speculation.


11

The experienced district judge—the person “in the best position to

evaluate the jury’s ability to deliberate,” Symington, 195 F.3d at 1085—was

concerned about Juror 9’s health, and concluded that he could not continue to

deliberate. ER 13−17. The judge acted well within his discretion when he

dismissed the juror for that reason.

Depue and the NACDL also claim that the district court’s decision to

dismiss Juror 9 was not supported by the record. AR 52 at 7−10; AR 57 at

13−19. Specifically, the NACDL argues that “what is missing [is] record

evidence that Juror 9 suffered from mental incapacity that would have

supported dismissing him from the jury, and trial court findings of mental

incapacity.” AR 57 at 14. In support of its argument, it relies on a Seventh

Circuit case, United States v. Araujo, 62 F.3d 930 (7th Cir. 1995), which states,

“Before dismissing a juror pursuant to Rule 23(b), the district court must

render a finding that it is necessary to do so for just cause; and if the record

does not already make clear the precise nature or likely duration of the juror’s

NACDL further asserts that Juror 9 related “the physical manifestations of illness … to his hold out role,” AR 57, at 9, but the record does not support that assertion. Again, Juror 9 never said he was a “hold out.” And he clearly related the “physical manifestations of his illness” to his belief that someone in the jury room was poisoning him. See ER 9, 11 (Juror 9 claiming that one of the other jurors “took interest in how much [he] ate” and speculating that a juror poisoned his food when he went to brush his teeth before lunch).


12

inability to serve, the court bears an affirmative duty to inquire further into

those circumstances.” Id. at 934.

Even if Araujo bound this Court, it would not help Depue because the

district court here made a finding that it was necessary to dismiss Juror 9 for

just cause—forcing him to continue serving on the jury could have been

detrimental to his health. ER 13−17. Moreover, contrary to the NACDL’s

claim, the record is replete with evidence that Juror 9’s mental health was in

danger. His conduct at trial and during deliberations, as recounted in the

statement of facts above, demonstrates that his grasp of reality was tenuous at

best. As the panel properly found, no further inquiry by the district court was

advisable, let alone required.

B. As This Court Correctly Held, Depue Could Not Show Plain Error Regarding the Loss Amount.

As this Court noted in its opinion, at sentencing, Depue objected only to

the PSR’s recitation of his incarceration dates, and otherwise called the PSR

“correct” and “accurate.” Depue, 879 F.3d at 1029.

The process of discovery, preparing the PSR, objecting to the PSR, filing

sentencing memoranda, and addressing factual issues at sentencing is strictly

regulated by statute, regulation, and case law. Of particular relevance in this

case, Federal Rule of Criminal Procedure 32(I)(3)(A) states that the sentencing

court “may accept any undisputed portion of the presentence report as a


13

finding of fact[.]”; see also United States v. Charlesworth, 217 F.3d 1155, 1160 (9th

Cir. 2000) (“a sentencing court may rely only on an unchallenged PSR to find

that the facts underlying a sentence enhancement have been established by a

preponderance of the evidence”).

This Court held that Depue could not show plain error because he

waived any objection to the factual basis for the loss amount when he did not

object at sentencing and explicitly confirmed that the facts in the PSR, with

one exception not relevant here, were “correct” and “accurate.” Depue, 879

F.3d at 1028−29. This holding is correct. This Court has repeatedly held that

alleged factual errors at sentencing do not arise to the level of plain. See, e.g.,

United States v. Yijun Zhou, 838 F.3d 1007, 1011 (9th Cir. 2016) (“an error that

hinges on a factual dispute is not ‘obvious’ as required by the ‘plain error’

standard”); United States v. Scrivner, 114 F.3d 964, 968 (9th Cir. 1997)

(“[F]actual disputes do not rise to the level of plain error.” (internal quotation

marks omitted)).

In seeking rehearing, Depue and the NCFPCD rely on several cases in

which this Court has reviewed allegedly erroneous legal determinations or

alleged procedural errors in spite of a defendant’s lack of objection, or even

affirmative agreement with the district court. See AR 52 at 11, citing United

States v. Perez, 116 F.3d 840 (9th Cir 1997) (en banc) (reviewing for plain error


14

an erroneous jury instruction) and United States v. Jimenez, 258 F.3d 1120 (9th

Cir. 2001) (reviewing for plain error the legal determination that a prior

conviction qualified as an aggravated felony); AR 53 at 3−7, citing Perez,

Jimenez, United States v. Alvirez, 831 F.3d 1115 (9th Cir. 2016) (reviewing for

plain error the court’s determination that its factual findings regarding the

victim’s injury satisfied the legal standard of “permanent bodily injury”);

United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. 2013) (reviewing for

plain error the legal question whether defendant’s prior conviction qualified as

a crime of violence); United States v. Hammons, 558 F.3d 1100 (9th Cir. 2009)

(reviewing for plain error the district court’s procedural errors in failing to

calculate a guidelines range or give any reasons for the sentence imposed);

United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (reviewing for plain error

the application of the 18 U.S.C. § 924(e) enhancement); and United States v.

Waknine, 543 F.3d 546 (9th Cir. 2008) (reviewing for plain error procedural

errors made at sentencing). These cases simply have no application here.

Depue challenges the loss amount—a factual determination. See, e.g., United

States v. Walter-Eze, 869 F.3d 891, 912 (9th Cir. 2017) (loss amount is a factual

determination); United States v. Popov, 742 F.3d 911, 914 (9th Cir. 2014) (same).

Such alleged errors do not arise to the level of plain error. Yijun Zhou, 838 F.3d

at 1011; Scrivner, 114 F.3d at 968.


15

C. Neither Panel Rehearing nor Rehearing En Banc Is Warranted.

The Federal Rules of Appellate Procedure provide that rehearing en banc

“is not favored and shall not be ordered unless: (1) en banc consideration is

necessary to secure or maintain uniformity of the court’s decisions; or (2) the

proceeding involves a question of exceptional importance.” Fed.R.App.P. 35

(a). Such necessity or importance may be shown where “the panel decision

conflicts with a decision of the United States Supreme Court . . . and

consideration of the full court is therefore necessary to secure and maintain

uniformity of the court’s decisions”; or where, for example, the case “involves

an issue on which the panel decision conflicts with the authoritative decisions

of other United States Court of Appeals that have addressed the issue.”

Fed.R.App.P. 35 (b). Neither criterion is met in this case. Rehearing en banc is

unwarranted.

Panel rehearing is unwarranted as well. This Court has explained that its

“authority under Rule 40 extends only to those situations in which [it has]

‘overlooked or misapprehended’ a ‘point of law or fact.’” United States v.

Mageno, 786 F.3d 768, 774 (9th Cir. 2015). As explained above, the panel’s

decision fully comports with the facts and with this Court’s precedent, and the

decisions on which Depue and amici rely are readily distinguishable. The

panel decision is correct, and panel rehearing is unnecessary.


16

VII.

CONCLUSION

For the reasons stated above, the United States respectfully requests that

this Court deny Depue’s petition.

Dated this 14th day of May 2018.

DAYLE ELIESON United States Attorney ELIZABETH O. WHITE Appellate Chief s/ Adam Flake ADAM FLAKE Assistant United States Attorney 501 Las Vegas Blvd S. Ste. 11000 Las Vegas, NV 89101 (702) 388-6336 Attorneys for the United States


17


I hereby certify that:

Pursuant to Ninth Circuit Rules 35-4 and 40-1(a), the attached

Government’s Response in Opposition to Defendant’s Petition for Rehearing

or Rehearing En Banc is proportionately spaced, has a typeface of 14 points,

and contains 3,635 words.

Dated this 14th day of May 2018.

s/ Adam Flake ADAM FLAKE Assistant United States Attorney


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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Government’s

Response in Opposition to Defendant’s Petition for Rehearing or Rehearing En

Banc with the Clerk of the Court for the United States Court of Appeals for the

Ninth Circuit by using the Appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the Appellate CM/ECF system.

Dated: May 14, 2018

s/ Nicole Vazquez NICOLE VAZQUEZ Paralegal U.S Attorney’s Office


Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH …circ9-datastore.s3.amazonaws.com/datastore/uploads/enbanc/15-10… · Case: 15-10553, 03/26/2018, ID: 10813319, DktEntry: 52,