Whether the Ninth Circuit's Vasquez-Landaver rule requiring pretrial public disclosure of defense strategy contravenes criminal-procedure rules and attorney-client privilege

Questions Presented For Review I. The Ninth Circuit has a “Vasquez-Landaver"” rule requiring a criminal defendant to lay out, in detail, her defense before the Government even calls its first witness. Whether, then, the decision in this case making the defense’s Vasquez-Landaver presentation of its case public record contravenes the disclosure requirements and specific exemptions in the Federal Rules of Criminal Procedure? And, since the pretrial offer of proof in support of an affirmative defense is all of defense counsel’s work product all in one place, whether public disclosure publicly eviscerates the attorney-client and work-product privileges before trial even begins? Il. Whether a Pinkerton instruction that “if one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed the crime” can properly be used to convict a defendant of the substantive crime of the object of a conspiracy rather than of an overt act in furtherance of a conspiracy, especially where the defendant has a valid and preapproved duress defense but the coconspirators, upon whose crimes the Pinkerton instruction predicates the defendant’s criminal liability, do not have any defense and are, themselves, clearly guilty? ' United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008) (“We have long held that a defendant is not entitled to present a duress defense to the jury unless the defendant has made a prima facie showing of duress in a pre-trial offer of proof.”’) 1