Brief filed: 04/05/2018
United States v. Depue
9th Circuit Court of Appeals; Case No. 15-10553
Panel decision 879 F.3d 1021 (9th Cir. Jan. 11, 2018)
Rehearing is warranted to preserve the clarity and integrity of circuit precedent because the District Court’s decision to remove Juror 9 was inextricably intertwined with Juror 9’s self-declared status as “odd man out” in deliberations. The District Court failed to make the required factual findings to support “good cause” removal for mental or physical incapacity. The District Court made no factual finding that Juror 9 had a mental incapacity that precluded him from continuing to deliberate. The District Court made no factual findings that could support the dismissal of Juror 9 for physical incapacity.
Donald M. Falk and Lee H. Rubin, Mayer Brown LLP, Palo Alto, CA.