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.