Which matters most? Legal or fair?

U.S. District Judge Roger Hunt and the U.S. attorney’s office are at loggerheads over whether a woman who testified against her brother in a mortgage fraud case should forfeit $76,667.

While it doesn’t sound like an earthshaking case, the prosecution’s effort to seize that money as a criminal forfeiture has angered Hunt so much he wrote that the U.S. attorney’s office actions toward Jenna Depue "is the most egregious miscarriage of justice I have experienced in more than twenty years on the bench. I refuse to be a party to it."

Despite that tongue-lashing, U.S. Attorney Dan Bogden is asking Hunt to reconsider his decision to deny requiring Depue to forfeit the money her brother paid her as a salary while she ran his office between 2005 and 2007.

I’m no seer, but I doubt Hunt will change his mind. He wrote she is innocent, and, "It appears that the United States attorney’s office has lost sight of the self-imposed mandate that its first priority is not winning cases, but to do justice."

Hunt contended she was "compelled" by federal prosecutors to plead guilty when she was actually innocent.

Wowza. Hunt must be seething to write that. Her attorney didn’t appeal the forfeiture order because it was part of the plea bargain. The judge took the rare step of denying the government’s forfeiture request and writing a lengthy order explaining why.

But the U.S. attorney’s office slammed back against the judge. Appellate Chief Robert Ellman said Hunt’s opinion and order contained "significant factual and legal errors."

That’s harsh language to use against a federal judge.

In his response, filed Jan. 13, Ellman pointed out that Depue pleaded guilty to one conspiracy count, said she understood the charges and admitted certain illegal actions. Ellman also pointed out that case law says it’s mandatory for his office to seek criminal forfeitures in cases like this.

The arguments boil down to "it’s the law" versus "it’s not fair."

Since the case remains in litigation, neither Depue’s attorney, Thomas Ericsson, nor the U.S. attorney’s office will comment on the case, beyond the fierce documents filed.

The history of the case goes back to 2005 when Jenna Depue ran her brother Brett Depue’s investment office in Las Vegas. She pleaded guilty to conspiracy in 2010 and testified against her brother in two trials before Hunt last year. The first ended in a mistrial. In the second, Brett Depue was convicted, sentenced to almost 22 years in prison and ordered to forfeit $8.6 million.

He found straw buyers to apply for home loans. The loss to financial institutions victimized by the fraudulent loans was about $22 million.

Since Jenna Depue never went to trial, there was no evidence presented against her, Ellman noted, so Judge Hunt can’t know what evidence the prosecutors had against her, he was just forming his opinion of her innocence based on her testimony against her brother.

Hunt said based on that testimony, the government failed to show she had any intent to defraud. "Jenna was a victim, intimidated, duped and unduly influenced by her brother, Brett. Now the Department of Justice, not satisfied with making her a felon for life, wishes to make her a victim for the second time."

Hunt said she was the most credible witness in the case and faced hostile and intimidating cross-examinations from her brother, who represented himself.

Hunt pointed out that Jenna Depue, who lived in Gilbert, Ariz., and her sister were out $180,000 because her brother persuaded them to take out equity loans on their own homes to invest with him. That money was never repaid and the sisters lost their homes.

Jenna Depue testified that she spent her vacations going to California to help care for her other sister, her disabled twin.

Brett Depue wasn’t so selfless.

He persuaded his parents to invest and they lost their life savings, according to Hunt.

She wanted to quit at one point, but her brother said if she did, "she would never see her $180,000 again," Hunt wrote. "She has spent five years in hell, but the DOJ is not satisfied."

Ellman countered, quoting from her brother’s trial, that she knew what she had done was "against the law."

Hunt’s observations at trial "do not establish Depue’s innocence," the prosecutor wrote.

Hunt found it relevant that Jenna Depue didn’t receive the fraud proceeds. Ellman said that was irrelevant because the law doesn’t require that she did in a conspiracy case.

Hunt’s accusation that this was a miscarriage of justice and it’s possible there was prosecutorial misconduct were described by Ellman as "unfounded." Nor was there any evidence Depue was "compelled" to plead guilty, the prosecutor argued.

The chances Hunt will reverse himself are minuscule, when it’s so clear he thinks federal prosecutors abused their power.

That leaves the U.S. attorney’s office with two options: Drop it or appeal to the 9th U.S. Circuit Court of Appeals. I can’t see the U.S. attorney’s office not appealing when prosecutors believe they are following the law.

Either the judge or Bogden’s office is going to be embarrassed by the higher court’s decision when this ultimately is resolved.

Let’s wait and wonder whether this will escalate.

Feuding federal judges and federal prosecutors aren’t commonplace in Las Vegas. But it happens, especially when reputations are on the line.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. Email her at Jane@reviewjournal.com or call her at 702-383-0275. She blogs at lvrj.com/blogs/Morrison.

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