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 (9th Cir. 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.

Mr. Daniel Collins

                                               

For Further Reading: Mr. Daniel Collins, President Trump’s sixth confirmed Ninth nominee, joined the Circuit last week. See article here. 

Image of Daniel Collins from https://www.sfchronicle.com/news/article/Trump-s-sixth-appointee-to-Ninth-U-S-Circuit-13867904.php

Image of balancing (sea lion, to be accurate) from https://www.quora.com/Are-there-seals-pinnipeds-that-are-intelligent-and-how-smart-are-they

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so.  United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.


Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial. 

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.
                       
Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.” Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.
  
For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction.  For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.


Image of the Honorable Judge Jay Bybee from http://oneutah.org/wp-content/uploads/2009/04/bybee.jpg


Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org


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