In tangled case, judge kept sense of fairness

In a tough-talking tussle between U.S. Judge Roger Hunt and U.S. Attorney Dan Bogden, an appellate court gave a slap-down to the judge, handing Bogden’s office a legal victory.

The appeal centered on a woman who testified against her brother in a mortgage fraud case and whether she should forfeit $76,667 — the salary she was paid for running her crooked brother’s office between 2005 and 2007.

Federal prosecutors insisted Jenna Depue should forfeit the money, but Hunt took the unusual step and refused to order the money forfeited.

The prosecutors argued — and the U.S. 9th Circuit Court of Appeals agreed — that forfeiture to the government was legal and mandatory.

But Hunt, who was the trial judge in Depue’s brother’s two trials, didn’t think it was fair to penalize Jenna Depue, though she had pleaded guilty to one count of conspiracy.

She testified twice against brother Brett Depue. The first trial ended in a mistrial when jurors couldn’t agree. The second time, Brett Depue was convicted and sentenced to nearly 22 years in prison and ordered to forfeit $8.6 million.

In an unusually harsh finding, Hunt accused the prosecutors of compelling Jenna Depue to plead guilty when she was actually innocent. He said the U.S. attorney’s office “has lost sight of the self-imposed mandate that its first priority is not winning cases, but to do justice.”

Hunt also wrote that the prosecutors’ actions toward Jenna Depue demonstrates “the most egregious miscarriage of justice” he had experienced in his more than 20 years as a judge. “I refuse to be a party to it.”

Without even hearing oral arguments, three appellate judges said Oct. 6 that in this case, the legal questions were straightforward, and Hunt was “obligated to enter a forfeiture judgment against (Depue) at the government’s request.”

Depue is now working in Arizona and declined to comment, according to her Las Vegas attorney, Thomas Ericsson. “Her case is a sad case,” Ericsson said. “She is a sweet gal. … she did some things she shouldn’t have.”

Depue tried to help her brother, who cheated financial institutions out of $22 million by finding straw buyers to apply for loans, which were not repaid.

Ericsson didn’t appeal the case himself. Hunt took the unusual step of refusing to sign the forfeiture order, prompting the government’s appeal. But Ericsson said the government had been reasonable in asking for $76,667. “We were concerned. They could have asked for in excess of $1 million.”

The U.S. attorney’s office declined to comment because the forfeiture finding remains pending before U.S. District Judge Kent Dawson.

In Hunt’s opinion, Jenna Depue had no intent to defraud. He saw the brother as the villain, because Jenna and another sister lost $180,000 when he persuaded them to take out equity loans to invest with him. The sisters lost their homes. Brett Depue also convinced his parents to invest, and they lost their life savings.

The government’s attorney who handled the appeal was Robert Ellman. He said that Jenna Depue knew what she did was wrong and that Hunt’s observations at trial didn’t prove her innocence. Nor did the government need to prove she benefited from the fraud in this forfeiture action. Ellman said Hunt’s order refusing to sign the forfeiture contain “significant factual and legal errors.”

When I wrote about this case in January 2013, I predicted either the judge or the U.S. attorney’s office was going to be embarrassed when the appellate decision came down.

Wrong.

“I’m disappointed, but I’m not embarrassed by it,” Hunt said Wednesday. “There’s no reason to be embarrassed. I still think I was right. But that was their call.”

While legally incorrect, Judge Hunt demonstrated his sense of fairness.

What’s embarrassing about that?

Jane Ann Morrison’s column appears Thursday. Email her at Jane@reviewjournal.com