United States v. Loera

• Decision Date: 25 January 2022
• Docket Number: Docket No. 19-2239,August Term 2021
• Citation: 24 F.4th 144
• Parties: UNITED STATES of America, Appellee, v. Joaquin Archivaldo GUZMAN LOERA, aka El Chapo, aka El Rapido, aka Chapo Guzman, aka Shorty, aka El Senor, aka El Jefe, aka Nana, aka Apa, aka Papa, aka Inge, aka El Viejo, aka Joaquin Guzman-Loera, Defendant - Appellant.
• Court: U.S. Court of Appeals — Second Circuit

24 F.4th 144

UNITED STATES of America, Appellee,

v.Joaquin Archivaldo GUZMAN LOERA, aka El Chapo, aka El Rapido, aka Chapo Guzman, aka Shorty, aka El Senor, aka El Jefe, aka Nana, aka Apa, aka Papa, aka Inge, aka El Viejo, aka Joaquin Guzman-Loera, Defendant - Appellant.¹

Docket No. 19-2239

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: October 25, 2021

Decided: January 25, 2022

Marc Fernich, Law Office of Marc Fernich, New York, NY, for Defendant-Appellant Joaquin Archivaldo Guzman Loera.

Hiral D. Mehta, Asst. U.S. Atty., Brooklyn, NY, and Brett C. Reynolds, Trial Atty., Washington, DC (Mark J. Lesko, Acting U.S. Atty. for the Eastern District of New York, Michael P. Robotti, David C. James, Patricia E. Notopoulos, Asst. U.S. Attys., Brooklyn, NY, Arthur G. Wyatt, Chief, Narcotic & Dangerous Drug Section, Criminal Division, U.S. Dept. of Justice, Ariana Fajardo Orshan, U.S. Atty. for the Southern District of Florida, on the brief), for Appellee United States of America.

Before: NEWMAN, LYNCH, and PARK, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

Appellant Joaquin Archivaldo Guzman Loera ("Guzman"), known as "El Chapo," appeals from the July 18, 2019, judgment of the District Court for the Eastern District of New York (Brian M. Cogan, District Judge), convicting him, after a three-month jury trial, of conducting a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(a) - (b). The CCE comprised a number of large-scale narcotics violations and a murder conspiracy. Guzman was also convicted of drug trafficking conspiracies, unlawful use of a firearm, and a money laundering conspiracy. He was sentenced primarily to five concurrent terms of life imprisonment for the CCE and narcotics trafficking violations and 30 years consecutively for the firearms violation, and ordered to forfeit more than $12 billion.

Guzman makes ten claims on appeal: (1) his indictment should have been dismissed under the doctrine of specialty, (2) he was denied his Fifth and Sixth Amendment rights to a fair trial and the effective assistance of counsel, primarily because of the conditions of his pretrial detention, (3) the murder conspiracy, charged as one of the CCE violations, should have been dismissed, (4) the Government violated the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure when it obtained electronic data from servers located in the Netherlands and the state of Washington, (5) the District Court exceeded its discretion in making various evidentiary rulings, (6) Guzman's lead lawyer had a per se conflict of interest, (7) Guzman was prohibited from presenting a defense of Government bias, (8) the jury charge on unanimity was erroneous, (9) a new trial should have been granted based on juror misconduct, and (10) the case should be remanded for a hearing on whether the Government and the District Court engaged in improper ex parte proceedings.

We conclude that none of these claims has merit and therefore affirm.

Background

Facts . Guzman is the former leader of a Mexican drug trafficking organization known as the Sinaloa Cartel. Under his leadership, the Sinaloa Cartel imported more than a million kilograms of cocaine and hundreds of kilograms of heroin, marijuana, and methamphetamine into the United States. The Sinaloa Cartel used murder, kidnapping, torture, bribery of officials, and other illegal methods to control territory throughout Mexico and to subdue opposition. The extensive trial evidence included testimony from 14 cooperating witnesses.

Facts relating to Guzman's specific claims on appeal are set forth in the discussion of those claims.

Procedure . In July 2009, a grand jury in the Eastern District of New York ("E.D.N.Y.") indicted Guzman, and a warrant was issued for his arrest. At that time, Guzman had been a fugitive in Mexico for approximately eight years after escaping from a Mexican prison in 2001 by bribing prison officials. In 2014, Mexican authorities recaptured Guzman and detained him in a maximum-security prison. However, in 2015, he escaped again after digging a mile-long tunnel starting under his cell. In 2016, he was recaptured by Mexican authorities.

In May 2016, a grand jury in E.D.N.Y. returned a fourth superseding indictment against him.² In 2017, Mexico extradited Guzman to the United States to stand trial.

After a three-month jury trial, Guzman was convicted of a CCE offense (Count I), an international narcotics conspiracy (Count II), a cocaine importation conspiracy (Count III), a cocaine distribution conspiracy (Count IV), international distribution of cocaine (Counts V, VI, VII, and VIII), use of firearms in relation to drug trafficking crimes (Count IX), and conspiracy to launder narcotics proceeds (Count X).³ At sentencing, Counts II, III, and IV were dismissed on the Government's motion as lesser included offenses. Guzman was sentenced to five concurrent sentences of life imprisonment for the CCE and the drug trafficking offenses (Counts I, V, VI, VII, and VIII), a consecutive 30-year term for the firearms offense (Count IX), and a concurrent term of 240 months for the money laundering offense (Count X). Guzman was also ordered to forfeit more than $12 billion.

Discussion

1. Specialty Claim

Guzman contends that the indictment violated the doctrine of specialty, an international law principle requiring that an extradited defendant "can only be tried for one of the offenses described in th[e] [extradition] treaty, and for the offense with which he is charged in the proceedings for his extradition." United States v. Rauscher , 119 U.S. 407, 430, 7 S.Ct. 234, 30 L.Ed. 425 (1886). Guzman makes two challenges to his extradition. First, after Mexico agreed to extradite him to the United States to stand trial on charges in indictments returned in the Western District of Texas and the Southern District of California, the Government, he alleges, fraudulently procured Mexico's waiver of the specialty doctrine in order to transfer him to E.D.N.Y. to stand trial on charges in an indictment returned there. Second, he alleges that Mexico did not agree to the harsh conditions of his pretrial detention.

In May 2016, Mexico granted the Government's request to extradite Guzman to the United States, and he was extradited in January 2017 pursuant to the Extradition Treaty between the United States and Mexico, May 4, 1978, 31 U.S.T. 5059 ("Treaty"). Thereafter, pursuant to Article 17 of the Treaty, Mexico consented to an exception to the doctrine of specialty in order to transfer Guzman to E.D.N.Y. to face prosecution there. In September 2017, the District Court denied Guzman's motion to dismiss the E.D.N.Y. indictment based on the doctrine of specialty. The Court ruled that Guzman lacked standing to invoke the doctrine, relying on this Court's decision in United States v. Barinas , 865 F.3d 99, 105 (2d Cir. 2017).

The Treaty provides:

"A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted nor be extradited by that Party to a third State unless ... [t]he requested Party has given its consent to his detention, trial, punishment or extradition to a third State for an offense other than that for which the extradition was granted."

Treaty art. 17.

The Treaty does not confer an individual right to assert violations of the Treaty. In Barinas , we explained that " ‘international treaties establish rights and obligations between States-parties—and generally not between states and individuals, notwithstanding the fact that individuals may benefit because of a treaty's existence.’ " 865 F.3d at 104-05 (quoting Mora v. New York , 524 F.3d 183, 200 (2d Cir. 2008) ). Accordingly, "[a]n extraditee lacks standing to complain of noncompliance with an extradition treaty unless the ‘treaty [contains] language indicating "that the intent of the treaty drafters" was that such benefits "could be vindicated" through private enforcement.’ " Id. at 105 (quoting United States v. Garavito-Garcia , 827 F.3d 242, 247 (2d Cir. 2016) (quoting United States v. Suarez , 791 F.3d 363, 367 (2d Cir. 2015) ). " ‘[S]pecialty has been viewed as a privilege of the asylum state, designed to protect its dignity and interests, rather than a right accruing to the accused.’ " Id. (quoting Shapiro v. Ferrandina , 478 F.2d 894, 906 (2d Cir. 1973) ).

In his memorandum of law in support of his motion to dismiss, Guzman acknowledged that "the Second Circuit's ... decision in ... Barinas ... appears to preclude" the District Court "from granting" his motion but argued that " Barinas was wrongly decided." United States v. Guzman Loera , 09-cr-00466, ECF No. 110 at 1-2 (E.D.N.Y. Aug. 3, 2017).

We decline to reconsider Barinas and are "bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court." NML Capital v. Republic of Argentina , 621 F.3d 230, 243 (2d Cir. 2010) (citation omitted). As Guzman conceded in the District Court, that decision is dispositive here.

Moreover, Mexico explicitly consented to having Guzman tried on the indictment returned in E.D.N.Y. To the extent that a few of our sister circuits have expressed willingness to entertain a defendant's specialty argument in the absence of an express waiver by the extraditing sovereign, none of them has done so in the face of such a waiver. See , e.g. , United States v. Puentes , 50 F.3d 1567, 1575 (11th Cir. 1995) ("[A]n individual extradited pursuant to an extradition treaty has standing under the doctrine of specialty ... [but] enjoys this right at the sufferance of the requested nation. As a sovereign, the requested nation may waive its right to object to a treaty violation and thereby deny the defendant standing to object to such an action."); United States v. Fontana , 869 F.3d 464, 469 (6th Cir. 2017) (same); United States v. Riviere...