ORDER
UNDER SEAL AND EX PARTE1
CINDY K. JORGENSON, District Judge.
Pending before the Court is the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) filed by Defendant Roxanne Marie Carpenter ("Carpenter"). Carpenter seeks to file her lodged pretrial offer of proof in support of a duress defense (Doc. 86) ex parte. Counsel asserts this is in accordance with the best practices outlined in Federal Defenders of San Diego, Inc., Defending a Federal Criminal Case § 8.04, at 8-375 (2016). Carpenter also points out that Fed.R.Crim.P. 12.1-12.4 do not require a defendant to provide notice of an intention to raise a duress defense, while an ethical rule states that "a lawyer shall not reveal information relating to the representation of a client . . ." E.R. 1.6. Further, Carpenter argues that Fed.R.Crim.P. 16(b)(2)(B) appears to recognize this ethical requirement because disclosure of statements made to defense counsel by a defendant or witnesses is not required.
A common law public right of access to judicial proceedings and records exists in both criminal and civil cases. United States v. Wecht, 484 F.3d 194, 207-08 (3rd Cir. 2007). However, a court has the inherent power to permit documents to be filed under seal in appropriate circumstances. United States v. Mann, 829 F.2d 849 (9th Cir. 1987). The Ninth Circuit has stated:
Unless a particular court record is one traditionally kept secret, a strong presumption in favor of access is the starting point. A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the compelling reasons standard. That is, the party must articulate compelling reasons supported by specific factual finding that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process. In turn, the court must conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret. After considering theses interests, if the court decides to seal certain judicial records, it must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.
Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations and quotation marks omitted). Here, Carpenter has not made any showing that her proffer is the type of information traditionally kept secret.
Moreover, evidence of a duress defense should be excluded unless a defendant has made a prima facie showing there was (1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) lack of reasonable opportunity to escape the threatened harm. United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993). Carpenter is requesting this proffer be made ex parte. As another district court has stated:
While a district court may determine the sufficiency of evidence to support a duress defense by a motion in limine, United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985), by filing her pleading ex parte and under seal in this case, the defendant is asking the Court to make legal rulings respecting the adequacy of her proffered duress evidence in what amounts to an in camera hearing, without notice to, or the opportunity for, the United States to oppose the motion.
It is unnecessary for the Court to decide whether it has inherent power to grant a criminal defendant an in camera hearing, excluding the other litigant party — the prosecution — and to receive proffered evidence for substantive purposes on an issue dispositive of the litigation. If a district court has such power, its invocation would surely require a compelling showing of necessity, and its exercise would require sound judicial discretion based on a recognition that exercise of the power virtually obliterates as to one party all of the basic and fundamental rights included in the concept of a fair trial: the right to be present during all important stages of the proceedings; the right to hear testimony or, as here, to be made aware of proffered evidence; the right to test the truth and accuracy of the proffered evidence by cross-examination; the right to present rebuttal evidence; and the right to be heard in meaningful argument.
In this case, the defendant hasn't attempted to make such a showing,1 and the Court finds that to entertain the motion and rule on it without giving notice and the opportunity to be heard to the prosecution would be unfair and prejudicial to the fair trial rights of the United States.
1 The defense application recites merely that the motion is filed ex parte because it reveals confidential defense strategy and is protected by the work product privilege and the attorney client privilege. But the proposed defense strategy proposed is subject to the Court making a substantive legal ruling to admit evidence at trial. For reasons outlined above, it is improper and would be unfair for the Court to make that ruling without providing the opposing party notice of the evidence and the opportunity to be heard in opposition. Because the defense intends to introduce the evidence at trial, the Court finds that they have prospectively waived the work product privilege. As for the attorney client privilege, the defense submission does not explain how that privilege will be implicated in the presentation of the anticipated evidence — especially if the defendant herself testifies.
United States v. Burgueno-Gonzalez, No. 17CR0245-LAB, 2017 WL 1540863, at *1-2 (S.D. Cal. Apr. 28, 2017).
Moreover, although the Federal Rules of Criminal Procedure do not require a defendant to provide notice of a duress defense, case law does require that a pre-trial offer of proof be made. United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008). Carpenter has not provided any binding precedent that such a proffer may be made without an opportunity for the prosecution to be heard.
Additionally, Carpenter's concerns about disclosing such information to the prosecution are not well-taken. Establishing a duress defense involves the use of a defendant's statements or witnesses' statements to a similar degree as an alibi defense. With an alibi defense, a defendant is required to provide notice of where a defendants claims to have been at the time of an offense and the names of alibi witnesses. Fed.R.Crim.P. 12.1. Such requirement has been deemed to be constitutional. See e.g. United States v. Graham, 683 Fed.Appx. 622 (10th Cir. 2016) (summarizing cases discussing notice of affirmative defenses). Carpenter has not provided any basis, other than the Federal Rules of Criminal Procedure requiring the notice rather than the requirement by Ninth Circuit law, to conclude the notice of a duress defense is so dissimilar from an alibi defense that an ex parte review of the proffer is appropriate.
As to Carpenter's argument that providing such notice is not consistent with ER 1.6, Carpenter fails to acknowledge that the commentary to the ethical rule provides:
[5] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or, to make a disclosure that facilitates a satisfactory conclusion to a matter . . .
Ariz.S.Ct.R. 42, E.R. 1.6, Comment [5]. The commentary also states:
[14] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes ER 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by ER 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (d)(5) permits the lawyer to make such disclosures as are necessary to comply with the law.
[15] Paragraph (d)(5) also permits compliance with a court order requiring a lawyer to disclose information relating to a client's representation. If a lawyer is called as a witness to give testimony concerning a client or is otherwise ordered to reveal information relating to the client's representation, however, the lawyer must, absent informed consent of the client to do otherwise and except for permissive disclosure under paragraphs (c) or (d), assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by this Rule, the attorney-client privilege, the work product doctrine, or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal. See ER 1.4. Unless review is sought, however, paragraph (d)(5) permits the lawyer to comply with the court's order.
Id. at Comments [14] and [15].
In other words, the commentary to the ethical rules recognize that disclosures necessary to comply with the law are permitted. Here, as recognized by Carpenter, the Ninth Circuit requires a proffer for a duress defense. Further, this Court agrees with Burgueno-Gonzalez that, in making a substantive legal ruling to admit evidence of a duress defense at trial, it would be improper and unfair for this Court to make that ruling without providing the government notice of the evidence and the opportunity to be heard in opposition.
The Court finds Carpenter's proffer is not information that is historically confidential nor has Carpenter provided any other compelling reasons that warrant confidentiality. Additionally, the Court does not find any basis to review Carpenter's proffer of her duress defense ex parte. The Court will deny the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85).
Furthermore, the Court does not find the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) contains information that is historically kept confidential. The Court will direct the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) and this Order be publicly filed in 14 days of the date of this Order unless counsel for Carpenter shows by written filing a basis to maintain the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) and this Order under seal and ex parte.
Pursuant to the ECF Administrative Policies and Procedures Manual, "the lodged proposed document remains under seal and will not be considered. The filer has the option of resubmitting the document in the public record." Manual § II.J.2. As Carpenter may or may not decide to file the document in the public record and with notice to the government, the Court will also direct the Clerk of Court to maintain the lodged document, i.e., the Ex Parte Offer of Proof in Support of Duress Defense (Doc. 86), as an ex parte document. Similarly, the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) will remain under seal and ex parte pending a written filing submitted by counsel for Carpenter.
Accordingly, IT IS ORDERED:
1. The Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) is DENIED.
2. The Ex Parte Offer of Proof in Support of Duress Defense (Doc. 86) shall be maintained under seal and as an ex parte document.
3. The Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) shall be maintained under seal and as an ex parte document for fourteen days from the date of this Order. In the event counsel for Carpenter does not submit a written filing establishing a basis to maintain the document as a sealed and ex parte document, the Motion to Seal Ex Parte Offer of Proof in Support of Duress Defense (Doc. 85) and this Order shall be filed as public documents.
