Ninth Circuit Blog: Case o' The Week: The First v. The Sixth in the Ninth - Carpenter and public disclosure of defense duress proffers

Ninth mulls Seal balancing.

United States v. Carpenter, 2019 WL 2049818 (9thCir. May 9, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judge Hawkins and DJ Vratil.

Facts: Carpenter and her co-D’s kidnapped Angel Gonzalez. See generally article here.

Gonzalez was suspected of stealing marijuana from a Mexican cartel: the plan was to give him up in exchange for payment. Id. at *1.

They hit Gonzalez with a cattle prod, duct-taped his hands and feet, and stashed him in a car trunk. Id. at *2. Carpenter drove Gonzalez across the border, but in Mexico Gonzalez managed to escape. Id. Carpenter ditched the car and was arrested when she tried to reenter the States. Id.

Before the kidnapping trial, Carpenter submitted an offer of proof on her duress defense (based on her fear of the Mexican cartel). Id. The court refused to seal her duress offer of proof, but allowed the defense at trial. Id. Carpenter was convicted. Id.

Issue(s): “We consider . . . Carpenter’s claim that the district court

abused its discretion in denying her motion to seal her duress defense proffer . . . .” Id. “Carpenter laments being forced to have ‘preview[ed] all of the evidence and all of her own testimony supporting her duress defense,’ and argues that the public disclosure was unconstitutional.” Id. at *5.

Held: “Even though we have long required that defendants proffer evidence of their duress defense, we have never held—nor indicated—that these proffers are entitled to secrecy or additional confidentiality. Instead, our early cases demonstrate that courts often dealt with the threshold inquiry of the prima facie showing through unsealed motions in limine. . . . Open court offers of proof were also utilized . . . .” Id. at *4.

“The district court considered Carpenter’s concerns that the disclosure of her evidence to the government would be unfair and would conflict with the ethical rules that counsel against revealing information related to the representation of client, and found that she had not stated a compelling reason to seal the proffer. We agree with the district court.” Id. at *5.

“[O]ur conclusion today does not establish a compulsory rule that defendants must disclose their testimony to present a duress defense. The public’s common law right of access to these offers of proof is a qualified right—one that a defendant can overcome by making the requisite showing. [I] n the balancing test the district court is required to consider the competing rights of the defendant and the public. We hold today only that the common law right of access attaches to pre-trial offers of proof for a duress defense, and that because Carpenter failed to provide a compelling reason to overcome this presumptive right of access, the district court did not abuse its discretion in denying Carpenter’s motion to seal her proffer.” Id. (internal citations and quotations omitted).

Of Note: This disappointing duress decision is slightly offset with a good holding on evidence of drug use. Id. at *7. Judge Smith explains that evidence of a co-D’s meth use during the kidnapping was inadmissible “other acts” evidence, that should not have survived FRE 403 balancing. Id. at *7-*8 (although this was ultimately held to be harmless error). Id. at *8.

A good FRE 404(b) / 403 decision for our clients who use, in the course of their other mischief.

How to Use: Unbelievably, the AUSAs did not bother to read Carpenter’s duress proffer! Id. at *3. That remarkable fact colored the Court’s new rule. Id. at *5. Arguably this new duress-disclosure rule should thus be limited to cases where prosecutors agree not to read the proffer. The Court emphasizes that this disclosure is a balancing test, not a “compulsory rule that defendants must disclose their testimony to present a duress defense.” Id. at *5.

Invoke the Sixth Amendment and fight to seal duress proffers – read properly, Carpenter’s holding should be a narrow rule indeed.