                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 17-10498
                 Plaintiff-Appellee,
                                             D.C. No.
                 v.                       4:17-cr-00602-
                                           CKJ-EJM-1
ROXANNE MARIE CARPENTER,
            Defendant-Appellant.



UNITED STATES OF AMERICA,                 No. 18-10006
                 Plaintiff-Appellee,
                                             D.C. No.
                 v.                       4:17-cr-00602-
                                           CKJ-EJM-4
FAUSTO VELAZQUEZ,
            Defendant-Appellant.            OPINION



     Appeal from the United States District Court
              for the District of Arizona
     Cindy K. Jorgenson, District Judge, Presiding

         Argued and Submitted April 15, 2019
              San Francisco, California

                      Filed May 9, 2019
2                UNITED STATES V. CARPENTER

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

             Opinion by Judge Milan D. Smith, Jr.


                          SUMMARY **


                          Criminal Law

    The panel affirmed rulings by the district court in a case
in which Roxanne Carpenter and Fausto Velasquez were
jointly tried and convicted of conspiracy to kidnap and
kidnapping.

    The panel held 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.

    The panel held that the district court did not abuse its
discretion in permitting the government to present under
Fed. R. Evid. 404(b) evidence of trafficking of marijuana to
Carpenter’s house and the subsequent disappearance of the
marijuana, which was necessary to provide a coherent and

    *
      The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              UNITED STATES V. CARPENTER                   3

comprehensible story regarding the background for
Gonzalez’s kidnapping.

    The panel held that evidence of Carpenter’s,
Velazquez’s,     and     their   codefendants’     use     of
methamphetamine at a friend’s home during the kidnapping
was not inextricably intertwined with the charged crimes so
as to escape the bounds of Rule 404(b), and that the district
court abused its discretion in admitting the evidence, which
should have been excluded under Fed. R. Evid. 403’s
balancing of probative value and prejudice. The panel
concluded that this error was harmless.

  The panel addressed other claims in a concurrently filed
memorandum disposition.


                        COUNSEL

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.
4                UNITED STATES V. CARPENTER

                            OPINION

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
    1
       We consider only two claims raised by Carpenter and Velazquez
in this opinion. A concurrently filed memorandum disposition addresses
their remaining claims.
                  UNITED STATES V. CARPENTER               5

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 taser 2 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

   2
       The actual weapon used was a cattle prod.
6              UNITED STATES V. CARPENTER

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.
                  UNITED STATES V. CARPENTER                            7

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 defense 3 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


    3
      A defendant must establish three elements to present a duress
defense: “(1) an immediate threat of death or serious bodily injury, (2) a
well-grounded fear that the threat will be carried out, and (3) lack of a
reasonable opportunity to escape the threatened harm.” United States v.
Moreno, 102 F.3d 994, 997 (9th Cir. 1996).
8                 UNITED STATES V. CARPENTER

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


    4
      Perhaps due in part to this lack of guidance, district courts within
our circuit have split on whether to permit sealed offers of proof for the
duress defense. Compare United States v. Burgueno-Gonzalez, No.
17CR0245-LAB, 2017 WL 1540863, at *1 (S.D. Cal. Apr. 28, 2017)
(denying ex parte under seal motion for duress offer of proof where
defendant failed to make a showing of its necessity in light of competing
interests); with United States v. Murillo, No. ED CR 05-69 (B) VAP,
2008 WL 11411629, at *24 (C.D. Cal. May 23, 2008) (overruling
government’s objection to defendant’s in camera and sealed proffer for
affirmative defenses because disclosure would require the defendant to
choose between his Fifth and Sixth Amendment rights).
               UNITED STATES V. CARPENTER                    9

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
(1986) (Press-Enterprise II). If the proceeding passes this
“experience and logic” test, Id. at 9, 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 (1982); jury voir dire, Press-
Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)
(Press-Enterprise I); and preliminary hearings before a
judicial officer as conducted in California, Press-
Enterprise II, 478 U.S. at 13. 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
10               UNITED STATES V. CARPENTER

access under the common law arises, that presumption can
be overcome only by a showing of a “compelling reason.”
Sleugh, 896 F.3d at 1013.

    While we held pre-Press-Enterprise I and II that there is
“a [F]irst [A]mendment right of access to pretrial documents
in general,” Associated Press v. U.S. Dist. Court for Cent.
Dist. of Cal., 705 F.2d 1143, 1145 (9th Cir. 1983), we have
not decided specifically whether the public has a First
Amendment or common law right of access to pre-trial
duress offers of proof.

    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. See, e.g., United States v. Contento-Pachon,
723 F.2d 691, 693–95 (9th Cir. 1984); United States v.
Shapiro, 669 F.2d 593, 596–97 (9th Cir. 1982). Open court
offers of proof were also utilized. See United States v.
Gordon, 526 F.2d 406, 408 (9th Cir. 1975).5 Thus, we
conclude that proffers for the duress defense have not
“traditionally been kept secret,” Times Mirror, 873 F.2d at
1219, and the common law right of access attaches.

     We acknowledge the tension that may arise between the
public’s right of access and the defendant’s right to a fair
trial. Such concerns are not without a place in this inquiry,

     5
      We also note that similar affirmative defenses have received
analogous treatment. See, e.g., United States v. Dorrell, 758 F.2d 427,
430–31 (9th Cir. 1985) (necessity defense proffer considered through
unsealed motion in limine).
               UNITED STATES V. CARPENTER                   11

and even the stronger First Amendment right of access “may
give way in certain cases to other rights or interests.” Waller
v. Georgia, 467 U.S. 39, 45 (1984). The common law right
too has “bowed,” so as to, for example, ensure that the
court’s records are not “used to gratify private spite or
promote public scandal.” Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 598 (1978) (quoting In re Caswell, 29 A. 259,
259 (R.I. 1893)). Courts repeatedly navigate this delicate
balance when grappling with whether certain criminal
proceedings or documents are afforded the presumption of
openness. Unsurprisingly then, this balance of the interests
is a “discretion to be exercised in light of the relevant facts
and circumstances of the particular case.” Id. at 599.
Accordingly, we next consider whether the district court
abused its discretion in denying Carpenter’s ex parte motion
to seal her pre-trial offer of proof.

   B. Carpenter’s Offer of Proof

    Where there is a presumptive right of access under the
common law, that presumption can be overcome only by
showing a “compelling reason.” Sleugh, 896 F.3d at 1013.
A court may seal records “only when it finds ‘a compelling
reason and articulate[s] the factual basis for its ruling,
without relying on hypothesis or conjecture.” Ctr. for Auto
Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096–97 (9th
Cir. 2016) (alteration in original) (quoting Kamakana v. City
& County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).

    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. 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
12             UNITED STATES V. CARPENTER

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.

    Carpenter asserts only general principles as to why her
proffer should remain sealed, but the fundamental starting
point is that the proffer is entitled to a “strong presumption
in favor of access.” Kamakana, 447 F.3d at 1178. Carpenter
remains unable to identify any direct way in which prejudice
occurred in her case, other than to assert that the
government’s witnesses and attorneys were able to learn in
advance what she would say, and could, as a result, bolster
their own testimony. Her speculative arguments as to the
prejudice she suffered because the court did not seal the
proffer are unmoored from the facts of the case, and she
conceded at oral argument that she has no evidence to
suggest that anyone read the proffer and could have cross
examined witnesses on this point—yet did not. Carpenter’s
arguments are insufficient to overcome the presumption of
access.

    In United States v. Gurolla, on which Carpenter relies
for the proposition that public disclosure of her proffer was
unconstitutional, we held that the government was not
entitled to review the defendant’s sealed declarations
regarding his entrapment defense on appeal, when it had not
challenged the district court’s seal order below. 333 F.3d
944, 952–53 (9th Cir. 2003). The Gurolla court noted,
however, that establishing a rule that requires defendants to
disclose the substance of their testimony to the prosecution
for an entrapment defense might be unconstitutional because
it forced them to choose between their Fifth and Sixth
Amendment rights, though it explicitly chose not to wade
into that potential quagmire. Id. at 953 n.11.
                  UNITED STATES V. CARPENTER                           13

    Carpenter’s reliance is misplaced, and contrary to her
contentions, our 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. As we noted, in 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. 6

II. Other Act Evidence

    Before trial, the government moved in limine to include
“other act” evidence of (1) the February 2017 trafficking of
marijuana to Carpenter’s house and the subsequent
marijuana disappearance, and (2) the codefendants’ use of
methamphetamine at Hall’s home during the kidnapping.
The court granted the government’s motions, finding the
evidence admissible “under the theory of allowing the
Government to complete the story or explain to the jury the
background facts surrounding this incident,” and that the
probative value outweighed the unfair prejudice. Velazquez
argues that the district court erred in admitting this evidence.



    6
       Since we determine that, at a minimum, the common law right of
access applies, and that the district court did not abuse its discretion in
holding that Carpenter failed to meet the lower burden to overcome that
right, we need not reach the question of whether there is also a qualified
First Amendment right to proffers of duress evidence.
14             UNITED STATES V. CARPENTER

    We review de novo whether evidence is other act
evidence within the meaning of Federal Rule of Civil
Procedure 404(b), but the admission of this evidence for
abuse of discretion. United States v. Hill, 953 F.2d 452, 455
(9th Cir. 1991). Where a district court errs in admitting other
act evidence, we review for harmless error. See id. at 458.

    Other act evidence is inadmissible to “prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character,” but this
evidence “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b). Even if other act evidence
is admissible, it remains subject to the general balancing test
concerning whether its “probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R.
Evid. 403.

     We have exempted other act evidence from the
requirements of Rule 404 where it is “inextricably
intertwined” with the underlying offense. United States v.
Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). The
first exempted category consists of evidence that
“constitutes a part of the transaction that serves as a basis for
the criminal charge.” Id. Second, as relevant here, other act
evidence is admissible when “necessary . . . in order to
permit the prosecutor to offer a coherent and comprehensible
story regarding the commission of the crime.” Id. at 1012–
13.

    Velazquez argues that neither the circumstances
surrounding the February 2017 drug-trafficking incident nor
the use of methamphetamine at Hall’s house was
inextricably intertwined with the charged offenses. We
consider each in turn.
              UNITED STATES V. CARPENTER                 15

   A. Missing Marijuana

    Velazquez concedes that the missing marijuana was
“relevant to give context” as to the bounty on Gonzalez’s
head, to the “the issue of motive,” and to “provide context
for Carpenter’s duress claim.” Nonetheless, he contends that
the “question of how the marijuana went missing or who was
responsible for it . . . was completely irrelevant to the
charges,” and the “repeated references” to Velazquez’s drug-
trafficking activity and the suggestions that he stole the
marijuana prejudiced the jury against him.

    As Velazquez admits, the circumstances of the initial
drug-trafficking incident and missing marijuana were
necessary to provide a “coherent and comprehensible story”
regarding the background for the kidnapping of Gonzalez.
His attempt to finely slice this other act evidence is
unpersuasive. The speculative testimony at trial regarding
who stole the missing marijuana, only underscored the
general confusion prior to the kidnapping as to the
perpetrator and offered context to the jury as to how the
cartel, and therefore the codefendants, focused on Gonzalez.
In addition, as the district court found, this evidence also
attacked the immediate threat element of the duress defense
by showing that the codefendants struggled with the missing
marijuana dilemma for over one month before kidnapping
Gonzalez. In short, the district court did not abuse its
discretion in permitting the government to present evidence
regarding the disappeared marijuana and its immediate
aftermath.

   B. Methamphetamine Use

    The district court determined that the codefendants’ use
of methamphetamine while they waited at Hall’s home was
also admissible to offer a coherent story. But, other act
16             UNITED STATES V. CARPENTER

evidence must have a “sufficient contextual or substantive
connection” to the charged offense and we find that the
codefendants’ methamphetamine use did not. Vizcarra-
Martinez, 66 F.3d at 1013.

    Similarly to our finding in Vizcarra-Martinez that the
defendant’s possession of a small amount of
methamphetamine at the time of his arrest was
“unquestionably” not part of the offense with which he was
charged—possession of hydriodic acid, id., Velazquez’s use
of methamphetamine was not part of either charged offense.
Although Velazquez’s methamphetamine use while at Hall’s
house tends to slightly rebut the duress defense, 7
“[c]oincidence in time is insufficient.” Id. In Vizcarra-
Martinez, we also found that the prosecution’s ability to
present evidence relevant to the crime without introducing
the defendant’s personal methamphetamine favored
excluding the evidence. Id. Here too, the government
presented additional evidence that attacked Carpenter and
Velazquez’s duress defense during this exact same period.
Hall testified that Carpenter “kind of laughed” in response to
Hall telling her that she could get in trouble for having a
person in the trunk of her car, and that Carpenter generally
was acting “normal.” In addition, according to Hall,
Velazquez was “singing or rapping while he was sitting on
the couch.” Velazquez’s use of methamphetamine while he
waited at Hall’s house was in no way relevant to the
commission of the crimes. Therefore, we conclude that this



     7
       Contrary to the government’s theory, the codefendants may
possibly have used methamphetamine to cope with the stress of the
kidnapping.     For example, Carpenter testified that smoking
methamphetamine “slows [her] down. It just does a focus thing.”
              UNITED STATES V. CARPENTER                   17

evidence was not inextricably intertwined with the crimes so
as to escape the bounds of Rule 404(b).

    Because we conclude that the methamphetamine use
constituted other act evidence, we next consider whether it
should have been excluded under Rule 404(b). We use a
four-part test to determine the admissibility of evidence
under Rule 404(b):

       Evidence of prior criminal conduct may be
       admitted if: (1) the evidence tends to prove a
       material point; (2) the prior act is not too
       remote in time; (3) the evidence is sufficient
       to support a finding that defendant committed
       the other act; and (4) [in certain cases] the act
       is similar to the offense charged.

Id. at 1013 (quoting United States v. Mayans, 17 F.3d 1174,
1181 (9th Cir. 1994)). The government argues that the
challenged evidence was admissible under Rule 404(b)(2)
because it addressed “motive, state of mind, and absence of
duress.”

    We seriously doubt that Velazquez’s methamphetamine
use speaks to his motive to commit kidnapping or conspiracy
to kidnap, although we find that the evidence is probative of
his state of mind and the absence of duress. Nonetheless, we
conclude that the district court abused its discretion in
admitting the evidence because it should have been excluded
under Rule 403’s balancing.           Drug use “is highly
prejudicial,” and the connection between the charged
offenses and the methamphetamine use was evidently slight.
Id. at 1017.         The low probative value of the
methamphetamine use—particularly in light of the other
evidence that the government introduced to establish the
absence of duress and the codefendants’ state of mind—is
18            UNITED STATES V. CARPENTER

“substantially outweighed” by its prejudice.       Fed. R.
Evid. 403.

    Finally, finding that the evidence is inadmissible under
Rule 403, we must determine whether the district court’s
admission of the methamphetamine use was harmless. We
start with a “presumption of prejudice,” United States v.
Bailey, 696 F.3d 794, 803 (9th Cir. 2012) (quoting Obrey v.
Johnson, 400 F.3d 691, 701 (9th Cir. 2005)), and we reverse
unless “it is more probable than not that the error did not
materially affect the verdict,” United States v. Morales,
108 F.3d 1031, 1040 (9th Cir. 1997) (en banc).

    The government presented more than enough evidence
to defeat Velazquez’s duress defense and overwhelming
evidence as to his guilt for both conspiracy to kidnap and
kidnapping. Velazquez—the only Spanish speaker among
the codefendants—negotiated with the cartel to set the award
for Gonzalez. On the day of the kidnapping, he continued to
communicate with the cartel to arrange the exchange
location. Velazquez entered Safeway with Carpenter to buy
additional kidnapping supplies, and he sat at Hall’s house
“singing and rapping” while Gonzalez remained bound in
the trunk. Carpenter, Gonzalez, Hall, and Meyers, all
implicated Velazquez in the planning and/or commission of
the crimes. Considering the mountain of evidence against
Velazquez, we conclude that the references to his
methamphetamine use at Hall’s house, while prejudicial,
were harmless. Cf. Bailey, 696 F.3d at 805 (improperly
admitted evidence that defendant had previously committed
a crime was not harmless where prosecution’s case turned
on witness with credibility issues and “considerable
evidence” supported defendant’s defense).
               UNITED STATES V. CARPENTER                    19

                      CONCLUSION

    We hold that the district court did not abuse its discretion
in requiring Carpenter to publicly file her pretrial offer of
proof, and that while the court erred in admitting evidence
of Velazquez’s methamphetamine use, the error was
harmless.

   AFFIRMED.
