US v. Carpenter, No. 17-10498 (5-9-19)(M. Smith w/Hawkins & Vratil). To raise a duress defense, the 9th requires defendants to make a “prima facie showing of duress in a pre-trial offer of proof” to raise the defense at trial. US v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008). Absent such a showing, the defense is deemed not relevant.  The question here is whether such a showing is in open court or ex parte. The 9th, looking at the common law, holds that “the common law right to access attaches to pretrial offers of proof for a duress defense, and that because Carpenter failed to provide a compelling reason to overcome the presumptive right of access, the district court did not abuse its discretion in denying Carpenter’s motion to seal her proffer.” (13)  The 9th thus avoids a constitutional First Amendment issue.

This was a conspiracy to kidnap and kidnapping case.  In another issue, the 9th found no error in allowing evidence of trafficking in marijuana, and the marijuana’s disappearance, as a reason for the kidnapping. It came in under 404(b).   It was needed to make sense of the story.  The court erred, although harmless, in allowing evidence of meth use during the kidnapping. Such use was not inextricably intertwined with the offenses so as to come in.  FRE 403 should have kept it out as unduly prejudicial. Again, the error was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/09/17-10498.pdf