In United States v. Dupue, --- F.3d ---, No. 15-10553 (9th Cir. 2018), the Court affirmed the pro se defendant's mortgage fraud convictions and sentence.
On appeal, the defendant challenged the district court's dismissal of a juror who claimed another juror poisoned him. Although the dismissed juror described himself as the "odd man out," the Court found no abuse of discretion because the dismissal was not based on the juror's view of the merits, but his odd claim of illness and reticence at continuing.
The Court set forth the following rule: "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."
More troubling is the Court's conclusion that the pro se defendant affirmatively waived his right to challenge the alleged Guidelines errors. The Court essentially merged the waiver and plain error doctrines finding: "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."
But the waiver was not the typical waiver -- as in the defendant being told he was giving up certain rights. Rather, it was simply a failure to object along with a statement that the PSR calculation appeared correct. Nevertheless, the Court construed this as knowing relinquishment of the right to challenge his sentence. Expect to see the government citing this case often.
