FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRETT DEPUE,

Defendant-Appellant.

No. 15-10553

D.C. No.

2:10-cr-00121-

RLH-RJJ-1

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 coconspirators 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 coconspirators 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 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).

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.