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El Chapo clamors for new trial, alleging juror misconduct

The appeal hinges on hearsay: an interview in which an anonymous juror describes concealing from the judge that he or she reviewed evidence about the infamous cartel leader sexually abusing children.

MANHATTAN (CN) — At the conclusion of a sweeping drug-trafficking trial that would put the notorious kingpin El Chapo behind bars for the rest of his life, an open-records request led to media reports about evidence withheld from trial to avoid prejudicing the jury.

Because one juror claims to have seen the evidence anyway — thanks to a steady diet of trial coverage via Twitter — El Chapo pushed the Second Circuit on Monday to order a do-over.

“I mean, this guy is going to be in a box for the rest of his natural life. I’m not asking you to play violins for him. I’m not playing violins for him either,” attorney Marc Fernich told a three-judge panel in Manhattan this afternoon.

“This is his last shot and he has the right to have this answered.” 

Jurors deliberated for just 35 hours before convicting the Sinaloa cartel leader whose real name is Joaquín Guzmán Loera on all 10 counts following a trial that stretched from late 2019 into early 2020, eliciting testimony from more than 50 witnesses, including over a dozen cooperators, about drugs and weapons they had trafficked, as well as money laundered, with and for El Chapo. They told of their days gifting expensive guns to one another, flying around in private planes and helicopters, and sometimes sampling the drugs they moved.

Days after the jury delivered that verdict, however, a Vice article quoted one anonymous juror as saying that the great lengths taken by El Chapo's judge in to see that he received a fair trial in Brooklyn "were routinely broken."

“We would constantly go to your media, your Twitter… I personally and some other jurors that I knew,” the juror told reporter Keegan Hamilton, who wrote that he recognized the juror from trial and requested anonymity "for obvious reasons."

Fernich, the attorney for El Chapo, acknowledged Monday that it would take some work to investigate the veracity of the juror’s admissions. He suggested that the court could do so by questioning the entire panel and its alternates, on the condition of immunity. 

The evidence concealed from El Chapo's trial on the basis that it might be prejudicial involved testimony from a witness who said that Guzmán had used a “powdery substance” to drug and rape girls as young as 13. Chapo called the girls “vitamins” because they gave him “life,” according to the witness. 

U.S. District Judge Brian M. Cogan took precautions during trial to make sure jurors would not consider the filing in their deliberations. But the juror interviewed by Vice said that five jurors and two alternates heard about the child rape allegations — and after briefly discussing what they had seen, they agreed not to tell the judge. 

“I thought we would get arrested,” the juror told Vice. “I thought they were going to hold me in contempt. … I didn't want to say anything or rat out my fellow jurors. I didn't want to be that person. I just kept it to myself, and I just kept on looking at your Twitter feed.”

The juror said the conversation about the allegations lasted five minutes and didn’t factor into the verdict. Vice ran Hamilton's interview with the juror about a week after the trial ended. Judge Cogan later sentenced Guzmán to life in prison plus 30 years

On Monday, Fernich argued that, in part because of “breathtaking jury misconduct,” his client’s fate was sealed before deliberations began, setting a dangerous precedent for future high-profile prosecutions. 

“Society can ill afford the impression of a two-tiered justice system,” Fernich said. 

Maybe the juror who talked to Vice was simply a “wackjob” who wanted publicity, he mused. But maybe not. 

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“This is not some throwaway argument,” he said, “if it turns out that five or six jurors got together and lied — lied to the judge’s face.” 

In this courtroom drawing, Joaquin "El Chapo" Guzman, second from right, accompanied by U.S. marshals, gestures a thumbs-up to his wife, Emma Coronel Aispuro, as he leaves the courtroom on Feb. 12, 2019, in New York. The notorious Mexican drug lord was convicted of drug-trafficking charges. (Elizabeth Williams via AP)

In addition to the alleged misconduct, Fernich seeks to overturn Guzman's conviction on the basis of pretrial detention in what he labeled as a “modern dungeon” on Monday: the recently shuttered Metropolitan Correctional Center, the same facility where Jeffrey Epstein died in August 2019.

Guzman was held there after escaping twice from high-security Mexican prisons before he could be extradited to the U.S. for trial. 

Fernich said the inhumane conditions to which Guzmán was subjected at the MCC broke him physically and mentally to the point that he couldn’t meaningfully participate in his own defense — despite, as judges pointed out, meeting with his attorneys upwards of 20 hours per week. 

“There is no controlling precedent, absent any wrongdoing while presently detained, for perpetual solitary confinement preceding conviction and lasting two-and-a-half years,” Fernich wrote in his 247-page brief

During the government’s arguments, Senior U.S. Circuit Judge Jon O. Newman asked about the justification for keeping Guzmán’s cell brightly lit for 24 hours a day while he was in solitary confinement. 

Department of Justice attorney Brett Reynolds said he could only speculate as to the reasoning but that it must have been deemed necessary to ensure Guzmán remained safely detained.

“Does that require bright lighting, or could it have been accomplished by enough illumination to see that he was there and safe?” pressed Newman, a Carter appointee. 

The judge noted that he didn’t doubt that facility officials had deemed the measure necessary, “but they’re not the final arbiters of constitutional conditions.” 

Hiral Mehta, assistant U.S. attorney for the Eastern District of New York, addressed the juror misconduct allegations, saying the evidence was not competent, being anonymously sourced hearsay, and therefore did not warrant a hearing. 

Following an inquiry by Judge Cogan, Mehta argued, one juror said they had seen a news headline referring to “Chapo and vitamins,” and another saw a Reddit post about El Chapo and then closed the browser window. 

The judges asked whether it was the government’s position that only the source of the allegation — in this case, a journalist — mattered, or if the details of what happened — whether a juror took a bribe, for example — should also play a role. 

After some back and forth, Mehta said that ultimately having competent evidence was paramount. Otherwise, any defendant unhappy with their trial outcome could make juror misconduct claims in the media, he said. 

U.S. Circuit Judge Gerard E. Lynch, an Obama appointee, asked what the procedure would look like if the panel found that the district court was incorrect in denying Guzmán a hearing. 

“We can’t review that nonfinding for abuse of discretion if the district court didn’t exercise discretion that way,” Lynch explained. 

Mehta replied that the court had exercised discretion, since it discussed how the juror’s comments were made anonymously and constituted, hearsay, and even if they were credited, did not prejudice the jury. “So it’s sort of together,” he said.

The final judge on the panel was U.S. Circuit Judge Michael H. Park, a Trump appointee. 

On rebuttal, Fernich argued that the disturbing allegations the jurors came across must have played a role in their mindset. People accused of sexually abusing children are reviled in society, and are considered “the lowest of the low'' in prisons, he said. 

“Raping young girls? They think that’s just ho-hum, prosaic?” Fernich questioned. “What about Epstein? What about Raniere?” 

As with El Chapo, it was a Brooklyn federal jury that convicted sex-cult leader Keith Raniere in late 2020.

Fernich also pointed to a portion of the Vice article in which the juror said they would rather participate in El Chapo’s trial than sit on the sidelines, and suggested that impulse led jurors to conceal the misconduct. 

“In the middle of trial … They just told a bold-faced lie,” Fernich said. “They wanted to sit on the case of the century.” 

Following Monday’s arguments, Fernich told Courthouse News via email that he didn’t have much to add to what was said in court. 

“We appreciate the engaged, lively bench and trust it will give Mr. Guzman’s appeal — especially his compelling jury misconduct claim — the close consideration it deserves,” he wrote.

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