United States of America v. Brett Depue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRETT DEPUE,
Defendant - Appellant.
No. 12-10345
D.C. No. 2:10 cr-0121-RLH-RJJ-
1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted December 8, 2014
San Francisco California
Before: TASHIMA and PAEZ, Circuit Judges, and QUIST, Senior District
Judge.**
Brett Depue appeals his convictions for conspiracy to commit bank fraud,
mail fraud, and wire fraud pursuant to 18 U.S.C. § 1349, and wire fraud and aiding
and abetting pursuant to 18 U.S.C. §§ 2, 1343. Because Depue’s waiver of his
FILED
MAR 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.

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right to counsel did not comport with the standards established in Faretta v.
California, 422 U.S. 806 (1975), we vacate the convictions and remand. Because
the issues are likely to recur on retrial, we reach and reject Depue’s challenges to
the district court’s evidentiary rulings.
I. Depue’s Waiver of Counsel
For a criminal defendant’s assertion of the right to self-representation to be
valid, the accused generally must understand: “(1) the nature of the charges
against him; (2) the possible penalties; and (3) the dangers and disadvantages of
self-representation.” United States v. Lopez-Osuna, 242 F.3d 1191, 1199 (9th Cir.
2000) (quoting United States v. Hernandez, 203 F.3d 614, 623-24 (9th Cir. 2000)).
The government bears a heavy burden in establishing that the defendant’s waiver
was valid, because we “indulge in every reasonable presumption against waiver.”
United States v. Arlt, 41 F.3d 516, 520 (9th Cir. 1994) (quoting Brewer v.
Williams, 430 U.S. 387, 404 (1977)); see United States v. Mohawk, 20 F.3d 1480,
1484 (9th Cir. 1994).
When the district judge asked Depue whether he understood the possible
sentences for the crimes with which he was charged, Depue responded “30 years.”
This response was inaccurate. Several of the crimes with which Depue was
charged carried a 20-year possible sentence. Because of this material
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misstatement, which was not corrected during the hearing at which Depue waived
counsel, the government did not meet its burden of proving that Depue understood
the possible penalties he faced. Cf. United States v. Forrester, 512 F.3d 500, 507
(9th Cir. 2007). The district court thus erred in concluding Depue’s waiver was
knowing and intelligent. Because we have “repeatedly rejected harmless error
analysis in the Faretta waiver context,” we have no choice but to vacate Depue’s
convictions. Id. at 508.
II. District Court Evidentiary Rulings
Separately, Depue raises several challenges to the district court’s evidentiary
rulings. In the interest of judicial efficiency, we address those arguments here and
conclude that each challenge lacks merit. Cf. Thompson v. Paul, 547 F.3d 1055,
1063 (9th Cir. 2008).
1. Depue first contends that the district court erred in admitting
testimony and a letter from his former attorney, James Adams, on the ground that
such evidence was subject to attorney-client privilege. When an individual
“disclos[es] the content of a privileged communication which is relevant and
material to an issue in the case,” he waives attorney-client privilege with respect to
that communication. Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18,
25 (9th Cir. 1981). In his first trial, Depue testified in detail about his meeting with
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Adams, including the specific advice Adams provided and his response to the
advice. Depue thus waived the attorney-client privilege as to that communication.
Even if the privilege were not waived, Depue’s argument would fail because the
government made a prima facie showing that Depue used Adams’ services (which
were the subject of Adams’ testimony) to help further an illegal scheme. Thus,
Adams’ testimony and letter were admissible under the crime-fraud exception. See
In re Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir. 1996).
2. Depue also contends that the district court erred in allowing Adams to
offer expert testimony. Because Depue failed to object to Adams’ testimony at
trial on this ground, our review is for plain error. See United States v. Rivera, 43
F.3d 1291, 1295 (9th Cir. 1995). Depue’s challenge fails because Adams’
testimony was not expert testimony. Adams’ statements about the law were
offered to show Depue knew about his subordinates’ criminal actions, not to clarify
the law’s meaning. Cf. United States v. Beckman, 298 F.3d 788, 795 (9th Cir.
2002).
3. Finally, Depue contends that the district court erred in excluding his
alternative defenses. None of Depue’s proposed defenses, however, even if
established, would have mitigated his alleged crimes. The district court thus
properly excluded them as irrelevant under Fed. R. Evid. 401 and 402.
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III. Conclusion
We reject each of Depue’s challenges to the district court’s evidentiary
rulings, but conclude that the government did not meet its burden of proving his
waiver of counsel was knowing and intelligent. Accordingly, we vacate Depue’s
convictions and remand to the district court for further proceedings.
VACATED and REMANDED.
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