Sunday, September 17, 2017

Ruling against Chapo's motion to dismiss indictment due to improper extradition

by Chivis Martinez for Borderland Beat
click on image to enlarge
On Friday, a no surprise decision was filed in the U.S. case against Joaquin El Chapo Guzmán. U.S. District Judge Brian Cogan overruled an effort by Joaquin Guzman, challenging his extradition from Mexico to face charges in New York and Florida of international narcotics conspiracy, and the indictment against him, based on the foundation he was extradited improperly to NYC. Without touching on the evidences of the case, Guzmán’s attorneys focused on the indictment being improper, violating the extradition treaty between Mexico and the United States.

The original agreement contained the agreement that Guzmán would be extradited to either Texas or California.  However, when Guzmán was awoken for the middle of the night transfer, it was done without prior attorney notification, or prior documentation of the extradition city change.  The contention is that this action or inaction violates the confusing, ambiguous “Rule of Specialty” doctrine. Essentially, in the cases of Mexico to U.S. extraditions, within the four corners of the agreement, there can be no additions.

Remember the case of Alfredo Beltran Leyva? His appeared to be a clear violation of the Rule of Specialty. For two reasons; one, charges were added when he arrived in the U.S. and there was not a “waiver” signed by Mexico. The waiver is a caveat, stipulating to changes, post extradition.   There was not one in the Beltran Leyva case. There is a contention that there is one in Guzmán’s case but he denies there is one, or one he has ever seen or signed.
U.S. District Judge Brian Cogan wrote in his decision, that Guzmán had no legal right to challenge the New York  indictment because Mexico had not objected to it.

Cogan also said in July, in an unrelated case, the federal appeals court in Manhattan, upheld this opinion.

See below full docket text, Motion to dismiss filed on 8.13.17

ORDER DENYING MOTION TO DISMISS AS TO JOAQUIN ARCHIVALDO GUZMAN LOERA

"It is well-settled law in the Second Circuit law that absent protest or objection by the offended sovereign, [a defendant] has no standing to raise the violation of international law" to challenge his indictment. United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015). In fact, one week before defendant filed his motion, the Second Circuit affirmed this legal principle in United States v. Barinas, 865 F.3d 99, 105 (2d Cir. 2017), holding that absent an express provision in an extradition treaty, a defendant has no standing to raise a Rule of Specialty violation. Here, there is no protest or objection by Mexico, nor is there an express provision in the extradition treaty between the United States and Mexico. Therefore, defendant's motion to dismiss the Indictment based on an alleged Rule of Specialty violation is denied. Ordered by Judge Brian M. Cogan on 9/14/2017. "
Guzmán attorney Michele Gelent told reporters, Although disappointed, we still believe Mr. Guzmán’s rights were violated under the treaty and given that other circuit courts give the defendant the right to object to violations of extradition treaties, it is our hope that eventually the Supreme Court will decide this issue favorably to Mr. Guzmán."

On September 13, 2017, Guzmán attorneys, adding insurance for a possible, filed a motion to dismiss counts;
Memorandum in support of defendant Joaquin Archivaldo Guzmán Loera’s motion to dismiss as time-barred counts ten, eleven, fourteen, and fifteen of the fourth superseding indictment  
The Court should dismiss Counts Ten, Eleven, Fourteen, and Fifteen of the Fourth Superseding Indictment (the “Challenged Counts”) because they are barred by the applicable five-year statute of limitations.
FACTS 
Five indictments have been filed in this case. The original indictment was filed against Mr. Guzmán and five other defendants on July 10, 2009. It contained nine counts, with the last alleged criminal conduct occurring on April 30, 2005. 
The first superseding indictment (the “S-1 Indictment”) was filed against Mr. Guzmán
and one other defendant, Ismael Zambada Garcia, on September 25, 2014. It contained 21 counts.
The second superseding indictment (the “S-2 Indictment”) was filed against defendant Hector Beltran Leyva only.
The Third Superseding indictment (the “S-3 Indictment”) was filed against Mr. Guzmán and Mr. Zambada Garcia on March 9, 2016.
Finally, the current indictment, the Fourth Superseding Indictment (the “S-4 Indictment”), was filed against Mr. Guzmán and Mr. Zambada Garcia on May 11, 2016. It includes four substantive counts relevant to this motion: Counts Ten, Eleven, Fourteen, and Fifteen. 
“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” Thus, for the offenses charged in Counts Ten, Eleven, Fourteen, and Fifteen to be timely, they must have been included in an indictment filed within five years of their commission. As shown below, they weren’t.
A. Count Ten is time-barred. The statute of limitations for the offense charged in Count Ten expired on December 31, 2013. But the offense alleged in Count Ten was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment 
Count Eleven. That was nine months too late. Count Eleven is time-barred. Count Eleven is untimely for similar reasons. For the offense alleged in Count Eleven to be timely, it had to be charged no later than February 3, 2011. But the offense alleged in Count 11 was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment
Count Thirteen. Again, that was too late.
C. Count Fourteen is time-barred. The January–March 2004 offense alleged in Count Fourteen had to be charged no later than March 31, 2009. But it was not charged—as an independent substantive offense—until the Third Superseding Indictment was filed on March 9, 2016. See S-3 Indictment 
Count Fourteen. Thus, it is untimely. 
Count Fifteen is time-barred. Finally, the January 25, 2004 offense charged in Count Fifteen had to be filed no later than January 25, 2009. But that crime was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment Count Eighteen. Thus, it too is barred by the statute of limitations
Below is the motion filed on the 13th of this month. There isredaction. But if you have time it is very interesting.

27 comments:

  1. You have to give him credit for trying whatever possible to fight the criminal charges against him. With his stature and money, expect issues of such to be litigated to the highest court.

    E42

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    1. Is the lawyers who know about legalities, chapo knows nothing about legal rules, they must be getting paid very well to be trying to do the impossible.

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  2. El Senor is used to many setbacks. The case will be thrown out soon. He will be in Culiacan drinking Buchannans by Christmas.

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    1. Lol yeah dude for sure

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    2. He will never get out

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    3. Yes El Senor will be out before Christmas and discover that his sexy wife Emma is pregnant again.

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    4. Pobre pendejo 429

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    5. @8:55
      Lol 😂 for sure

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  3. No entendi ni papas ke dise en pocas palabras?? Chivis?

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    1. only the mexican government can appeal, it is "settled law" too, La Chapa has no standing in the court to appeal his extradition no mattter what.
      --calling his partners in drug trafficking to the witness stand will not help either, it did not help vicente zambada niebla or el benjamin arellano felix, el guero plame or juan garcia abrego who was even granted american citizenship immediately just to extradite his ass in two minutes, sometimes they are just trying to keep their parnas silent in the tower, lucky mophakas do not have to wear an iron mask and a chastity belt, but they can't hope to be tried on the court of public opinion, they would win all the time, never mind getting a trial by a jury of their peers, how about getting tried in CIA headquarters by the biggest bosses of the CIA? pasta and present of course

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  4. So let's just say that Chapo's lawyers win a long shot and get his charges thrown out on technicalities. So then they ship him back to Mexico? And he escapes on the flight back?

    Stranger things have happened.

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    1. @8:40 yeah and then Saudi-Arabia admits to being behind 9/11. Anything else?

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    2. The rat himself has his own kind waiting to point there finger , hes done.

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  5. Anything is posible with a good lawyer and millions of dallars in the bank.. Just like the pther D.E.A informant vicentillo zambada who got a sweet deal because hevwasva registered informant, not to mention the 1.4 billion of cash he had to pay uncle sam..cds full of informers ( snitches) Beltranes have more pelotas than that, that's why cds has not been able to take them out of Sinaloa, not even with all that snitching they did starting with El mochomo

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    1. Mochomo wasn't ratted out, Don Arturo was a hot head which is why he got killed.

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    2. Isn't that the reason the beltranes split? Because chapo gave INFORMATION to D.E.A about mochomo? If it's not mochomo it's one of the other 3 two brothers for sure

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    3. You are correct sir

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  6. From a legal standpoint it sounds like he has a very strong case against most of these charges.

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    Replies
    1. Until pedro and margarito take the stand

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  7. Sometimes rushing things is bad 😂💧🌊

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  8. jail house lawyer n 206September 18, 2017 at 1:04 PM

    The decision of the Weinstein proceedings clearly provide the defendant counsel with multiple avenues to attempt judicial recourse at the appellant level.

    ReplyDelete
    Replies
    1. You can be my jailhouse lawyer

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  9. Don't they know how many goons would want that judge dead?

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  10. El senor de la montana is innocent and should be released immidiately.

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  11. El viejon sera libre raza vale más astucia que fuerza por las buenas o por las malas pa los vergasos sobran elementos fieles al señor ya se miro cuando le calleron en la mochila

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