BROOKLYN (CN) — Drug lord Joaquin “El Chapo” Guzman’s dramatic extradition to the United States had been full of pomp and ceremony, with a late-night airport landing followed by an early morning press conference held the day before Inauguration Day.
Standing before a parade of reporters, photojournalists, and news cameras, then-U.S. Attorney Robert Capers displayed photographs of a fleet of boats, planes and submarines that he said that the Sinaloa cartel used across four continents to run their empire. Law enforcement agencies across the country took turns vowing that a man who twice escaped from Mexican prisons would find justice in New York.
But in one important aspect, Guzman’s lawyers allege, prosecutors bungled the Sinaloa leader’s welcome onto U.S. soil: legal legitimacy.
In a 33-page brief filed late Thursday, Guzman’s lead attorney Michelle Gelernt takes aim at the U.S.-Mexican consent agreement that preceded her client’s transfer to Brooklyn federal court on Jan. 19.
It was a long-anticipated procedural gambit that Guzman’s attorneys have promised filing for months, and by their brief’s own admission, it stands a long chance of succeeding.
But its contents preview some of the arguments that observers can expect to hear if the case ultimately goes to trial.
Quoting excerpts from other Sinaloa leaders’ federal prosecutions, Guzman claims that the United States loaded its paperwork with false depositions from cooperating witnesses, including a crooked Ciudad Juarez police officer secretly moonlighting as a narcotraficante, or drug dealer.
The legal brief largely targets what it depicts as conflicting testimony from Jesus Manuel Fierro Mendez, whom Guzman’s lawyers describe as an “admitted and convicted corrupt former Mexican law enforcement official.”
“Specifically, Fierro Mendez swore in his declaration that he had personally met Mr. Guzman and had been personally present and observed Mr. Guzman negotiate a firearms deal,” the brief states. “In 2010, however, Fierro Mendez, testifying as a cooperating witness for the government, swore under oath that he ‘never met’ Mr. Guzman.”
Guzman’s lawyers allude to the case of Manuel Chavez-Betancourt, whom a Texas jury convicted at age 19 of conspiring to smuggle more than 100 tons of marijuana into the United States.
Fierro Mendez’s testimony helped persuade the jury to find Chavez-Betancourt guilty, but Guzman’s attorneys alleged that the United States never provided transcripts from the case to Mexico.
Gelernt, representing the drug lord for the Federal Defenders of New York, picked through Fierro Mendez’s and other cooperating witness testimony in U.S. courts from Texas to Arizona throughout her brief.
But mainly, her arguments revolve around the much arcane challenge concerning the rule of specialty, mandating that a criminal defendant is tried only on charges detailed in the extradition.
Although Guzman is being prosecution in the Eastern District of New York, Guzman’s extradition papers refer to his indictments in Texas and California. Those indictments charged him with murder, conspiracy, money laundering, drug and firearms trafficking, and other criminal enterprise violations.
“As is clear from the face of the redacted consent agreement itself, no extradition request based on the instant indictment was made to the Mexican government,” the brief states. “Certainly Mr. Guzman and his attorneys in Mexico were never served with such a request.”
The extradition papers did not assert a claim for a $14 billion forfeiture.
Decades ago in the same court, U.S. District Judge Jack Weinstein expressed skepticism that the U.S. government could pursue forfeiture of an extradited defendant without a foreign government’s consent in the case of Jose Franklin Jurado Rodriguez.
Another drug fugitive, Jurado Rodriguez was extradited from Luxembourg on money-laundering charges.
“Though the court did not rule definitively on the issue, it indicated that it was 'dubious' about the propriety of the United States proceeding on the forfeiture allegations without Luxembourg’s consent,” Gelernt wrote.
Guzman’s timing for such an objection may have come one week too late.
On July 28, the Second Circuit found in the case against Eduardo Barinas — another drug case — that the rule of specialty belongs to nations, not the criminal defendants they extradite.
“The defense recognizes that the Second Circuit’s recent decision in United States v. Barinas … appears to preclude this court from granting this motion on the ground that Mr. Guzman lacks standing,” the brief states.
“Nevertheless, because the circuits are divided over the standing question, and because we respectfully submit that Barinas was wrongly decided, the defense brings this motion to preserve Mr. Guzman’s rights in the event the Barinas rule is overturned,” it continues.
The U.S. Attorney’s Office for the Eastern District of New York declined to comment on the brief.
Although the government has not yet responded to Guzman's latest brief, prosecutors have argued in court documents at least twice before that the drug lord has no standing to question the terms of his extradition.
"The Second Circuit has made clear that a defendant has no standing to challenge an extradition based on a purported violation of the rule of specialty, and that “any individual right that [a defendant] may have under the terms of his extradition is ‘only derivative through the state,’” Capers wrote in a footnote to a Feb. 7 brief.
This predated the New York-based appellate court's latest ruling, as did another government brief from April 28 echoing the same arguments.
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