BROOKLYN (CN) - Just weeks before the trial of Mexican drug lord Joaquin “El Chapo” Guzman, the presiding judge issued a warning to his lawyer Friday for sending a text message to the attorney for a cooperating witness in the case.
“You know the gov outed [cooperating witness]? See you in EDNY,” the Sept. 23 text said, according to the order from U.S. District Judge Brian Cogan, who is presiding over Guzman’s case.
Cogan denied the government’s motion for sanctions against A. Eduardo Balarezo, Guzman’s lawyer, but warned he would bring the heat if it happened again.
Guzman, the former leader of the Sinaloa cartel who was convicted decades ago in Mexico of murder and drug-trafficking charges, has spent the last 22 months in New York awaiting a November trial on U.S. charges that could put him away for life. The notorious drug lord escaped from two high-security Mexican prisons before his extradition to the United States.
Federal prosecutors, claiming Guzman and his associates still pose a danger to anyone who testifies against him, have been taking steps to protect cooperating witnesses, including by sealing or redacting identifying details from court papers. They have also put some people in the witness protection program or in special jail cells.
Balarezo has not denied sending the text. Judge Cogan decided Guzman’s attorney did not violate the protective order in the case because he had not compromised the identity of any witnesses and let him off with a warning.
“The court is still very concerned by Mr. Balarezo's conduct,” Cogan wrote in the 4-page order.
The protective order says the government must turn over “protected discovery” to Guzman’s attorneys, who are prohibited from sharing any information that could lead to the identification of potential witnesses in the case.
Balarezo has the right to know who might testify against his client but he has to keep that information quiet, which is why Cogan decided in Balarezo’s favor, though he acknowledged the defense was dancing dangerously close to the line.
“Although Mr. Balarezo claims that the text message was not malicious and did not convey any threats, his use of the term ‘outed’ plainly suggests that the government somehow failed to protect the witness's identity from the public,” Cogan wrote.
The judge continued, “Mr. Balarezo also knew or should have known that when a cooperating witness in a case like this is told by their attorney that the government is exposing the cooperating witness deliberately or recklessly, it would be odd indeed if the witness was not intimidated to some degree.”
Balarezo claimed he had sent the text in fulfillment of the obligation to his client to fully investigate the government’s case, but Cogan said the lawyer had failed to explain how exactly the text message fit into that investigation.
Balarezo found out on his own about the witness whose attorney he texted. He attended a public status hearing in the witness’s case after the witness was arrested and eventually gleaned that the witness was cooperating with the government, according to the ruling.
Judge Cogan declined to rule on whether Balarezo’s conduct was an obstruction of justice, but he did order the attorney not to communicate with third parties about any non-public or redacted information in the case.
“Defense counsel are also prohibited from contacting cooperating witnesses, their lawyers, or their friends and family about the government's efforts to protect those witnesses. Any future conduct like the kind at issue here will constitute a sanctionable violation of this order,” Cogan concluded.
Guzman welcomed well-known defense attorney Jeffrey Lichtman to his team in September after Cogan officially allowed it, even though Lichtman could face conflicts of interest with potential witnesses.
Lichtman is best known for having garnered a 2005 acquittal for mob boss John Gotti, Jr.
William Purpura of Purpura Purpura also makes court appearances on behalf of Guzman.
Balarezo was not immediately available for comment Monday.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.