United States v. Carpenter

• Decision Date: 09 May 2019
• Docket Number: No. 17-10498, No. 18-10006,17-10498
• Citation: 923 F.3d 1172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roxanne Marie CARPENTER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Fausto Velazquez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

923 F.3d 1172

UNITED STATES of America, Plaintiff-Appellee,

v.Roxanne Marie CARPENTER, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Fausto Velazquez, Defendant-Appellant.

No. 17-10498

No. 18-10006

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2019 San Francisco, California

Filed May 9, 2019

S. Jonathan Young (argued), Law Offices of Williamson & Young P.C., Tucson, Arizona, for Defendant-Appellant Roxanne Carpenter.

Joshua F. Hamilton (argued) and Carol L. Lamoureux, Law Offices of Hernandez & Hamilton PC, Tucson, Arizona, for Defendant-Appellant Fausto Velazquez.

Erica Anderson McCallum (argued), Assistant United States Attorney; Robert L, Miskell, Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: MICHAEL D. HAWKINS and MILAN D. SMITH, JR., Circuit Judges, and KATHRYN H. VRATIL,^* District Judge.

M. SMITH, Circuit Judge:

In March 2017, Roxanne Carpenter, Fausto Velazquez, Phoelix Begay, and Brian Meyers (together, codefendants) kidnapped Angel Gonzalez—who was suspected of stealing marijuana from a Mexican cartel—to turn him over to the cartel in exchange for thirty pounds of marijuana. After a five-day trial, a jury convicted Carpenter and Velazquez of conspiracy to kidnap, in violation of 18 U.S.C. § 1201(a)(1) and (c), and kidnapping, in violation of 18 U.S.C. § 1201(a)(1). Carpenter and Velazquez appeal a series of the district court’s rulings pertaining to their joint trial.¹ We affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2017, Gonzalez, who worked for a member of the Mexican cartel, and Velazquez, transported twelve 88-pound bundles of marijuana from Hereford, Arizona to Carpenter’s home. At some point, a portion of the marijuana disappeared from Carpenter’s home. The cartel suspected that Gonzalez was responsible for the missing marijuana, and word of there being a bounty on his head spread through the community. Armed cartel members went to Carpenter’s home, looking for the missing drugs and Gonzalez. Two days later, the police went to her house and asked questions about the cartel members who had recently visited the house.

In March 2017, Begay informed Carpenter that he could no longer hold off the cartel, and that the cartel was going to make Velazquez pay for the missing marijuana. Meyers testified at trial that he believed that the codefendants planned to kidnap Gonzalez to turn him over to the cartel to protect their "family." Velazquez negotiated with the cartel, arriving at a final price of thirty pounds of marijuana in exchange for Gonzalez.

On March 29, 2017, Meyers borrowed Carpenter’s vehicle, first picking up Gonzalez from his apartment, then Begay from his home, under the pretense that they were taking Gonzalez to Elfrida, Arizona so that he could detox from drugs. On the way, Meyers changed the plans and they drove instead towards Douglas, Arizona to obtain methamphetamine. Gonzalez testified that after he fell asleep, he felt a taser² on his neck. Begay and Meyers then handcuffed him, shackled his legs, duct-taped his hands, feet, and face, and shoved him into the car’s trunk.

Begay and Meyers drove to a Safeway outside Bisbee, Arizona to meet Carpenter and Velazquez. While Meyers kept watch in the car, Carpenter, Velazquez, and Begay entered the store, where Carpenter bought water, candy, and duct tape. Carpenter decided that the group needed to leave the Safeway parking lot, and they drove to the home of her friend, Keri Hall. At Hall’s house, the codefendants waited to hear from the cartel, and smoked methamphetamine. Meanwhile, Gonzalez remained bound in the trunk. When the codefendants learned that the cartel members could no longer meet them on the American side of the border, Carpenter volunteered to take Gonzalez to Mexico. She drove him, still in the trunk, through the Naco, Arizona port of entry. Just across the border, Gonzalez found the trunk latch, opened the trunk, yelled for help, and managed to exit the trunk. Carpenter accelerated away, ditched her car, and then attempted to reenter the United States on foot.

At the border, federal agents arrested Carpenter on kidnapping-related charges. A two-count indictment was later filed charging all four codefendants—Carpenter, Velazquez, Begay, and Meyers—with conspiracy to kidnap, in violation of 18 U.S.C. § 1201(a)(1) and (c), and kidnapping, in violation of 18 U.S.C. § 1201(a)(1).

Meyers and Begay pleaded guilty, while Carpenter and Velazquez proceeded to trial. Prior to trial, Carpenter submitted an offer of proof of her duress defense, and the district court concluded that she could present the defense. After a five-day trial, the jury found Carpenter and Velazquez guilty of both charges. Carpenter received a sentence of two concurrent terms of 168 months’ imprisonment. Velazquez was sentenced to two concurrent terms of 140 months’ imprisonment. Carpenter and Velazquez timely appealed, and their appeals were consolidated before us.

JURISDICTION

The district court had jurisdiction over the criminal cases pursuant to 18 U.S.C. § 3231, and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

ANALYSIS

We consider first Carpenter’s claim that the district court abused its discretion in denying her motion to seal her duress defense proffer, and then Velazquez’s claim that the district court abused its discretion in admitting other act evidence against him.

I. Pre-Trial Offer of Proof for Duress Defense

The Ninth Circuit requires defendants to make "a prima facie showing of duress in a pre-trial offer of proof" to be able to present this defense³ at trial. United States v. Vasquez-Landaver , 527 F.3d 798, 802 (9th Cir. 2008). "Absent such a prima facie case, evidence of duress is not relevant." Id.

In accordance with Vasquez-Landaver , before trial, Carpenter sought to submit an offer of proof of her duress defense. She initially moved ex parte to seal her offer of proof, but the district court denied the motion, finding that it would be "improper and unfair" to decide the substantive issue without input from the government and that the contained information was not "historically kept confidential." Carpenter subsequently filed the offer of proof publicly. At the hearing on whether to permit Carpenter’s duress defense at trial, the government noted that it had not read the duress proffer. Ultimately, the court allowed the duress defense, finding that Carpenter had offered sufficient evidence to support it. At trial, Carpenter presented a duress defense, and the court instructed the jury on the defense.

On appeal, Carpenter argues that the court erred in ordering public disclosure of the pre-trial offer of proof. Our case law regarding pre-trial offers of proof for a duress defense is in short supply.⁴ We write to clarify how district courts should contend with these pre-trial offers of proof.

"We review de novo whether the public has a right of access to the judicial record of court proceedings under the First Amendment, the common law, or [the Federal Rules of Criminal Procedure], because these are questions of law." United States v. Doe , 870 F.3d 991, 996 (9th Cir. 2017) (alteration in original) (quoting United States v. Index Newspapers LLC , 766 F.3d 1072, 1081 (9th Cir. 2014) ). Because the district court balanced the "interests of the public and the party seeking to keep secret certain judicial records," however, we review the court’s decision not to seal or proceed ex parte with Carpenter’s offer of proof for abuse of discretion. Id.

A. Right of Access

The right of access to criminal trials is generally protected by both the First Amendment and the common law. See United States v. Sleugh , 896 F.3d 1007, 1013 (9th Cir. 2018). However, this right is not unlimited. See, e.g. , Times Mirror Co. v. United States , 873 F.2d 1210, 1215 (9th Cir. 1989) (holding no First Amendment right of access to search warrant proceedings and materials while pre-indictment investigation is ongoing).

The Supreme Court instructed that courts consider (1) "whether the place and process have historically been open to the press and general public," and (2) "whether public access plays a significant positive role in the functioning of the particular process in question," when determining whether there is a First Amendment right of access to criminal proceedings. Press-Enterprise Co. v. Super. Court of Cal. for Riverside County , 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ( Press-Enterprise II ). If the proceeding passes this "experience and logic" test, Id. at 9, 106 S.Ct. 2735, a qualified First Amendment right of access attaches. The Court has recognized a First Amendment right of access to criminal trials, Globe Newspaper Co. v. Super. Ct. for Norfolk County , 457 U.S. 596, 604–05, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ; jury voir dire, Press-Enterprise Co. v. Superior Court , 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ( Press-Enterprise I ); and preliminary hearings before a judicial officer as conducted in California, Press-Enterprise II , 478 U.S. at 13, 106 S.Ct. 2735. This right can only be overcome by an "overriding interest ... that closure ... is narrowly tailored to serve that interest." Sleugh , 896 F.3d at 1013 (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court , 156 F.3d 940, 946 (9th Cir. 1998) ).

A separate, common law right to "inspect and copy public records and documents, including judicial records and documents" also exists. Doe , 870 F.3d at 996–97 (quoting United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont. , 658 F.3d 1188, 1192 (9th Cir. 2011) ). This right, however, does not apply to documents that "have traditionally been kept secret for important public policy reasons." Times Mirror , 873 F.2d at 1219. Where a presumptive right of access under the common law...