In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected all 10 of Guzman Loera’s appellate claims:
1) Guzman Loera lacked standing to raise the claim that the indictment violated the international law doctrine of specialty (which provides that an extradited defendant can only be tried for offenses described in the extradition treaty and charged in the extradition proceedings). Under United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the U.S.-Mexico Extradition Treaty does not confer on extradited defendants individual rights to assert violations of the Treaty, and Mexico waived any specialty objection to Guzman Loera’s prosecution in the EDNY.
2) Guzman Loera’s Fifth and Sixth Amendment rights to present a defense and to have the effective assistance of counsel were not violated by: (a) his restrictive conditions of pretrial confinement, which included confinement in the MCC’s Special Housing Unit and the imposition of Special Administrative Measures (“SAMs”); (b) protective orders that prohibited removal of sensitive discovery from the U.S., required district court approval before sensitive discovery could be shown to persons not on the defense team, and permitted the government to defer certain disclosures; or (c) ex parte government filings.
3) Murder conspiracy, 21 U.S.C. § 848(e), was properly alleged as one of the CCE violations. Section 848(e) is a separate substantive offense, not, as Guzman Loera contended, a sentencing enhancement. Introduction of evidence of murders was admissible direct proof of the CCE count and did not contravene Rule 403.
4) Guzman Loera failed to demonstrate Fourth Amendment standing to challenge the seizure and search of telephone calls stored on servers in the Netherlands, and the Fourth Amendment does not apply to seizure of property owned by a nonresident alien and located in a foreign country. He also failed to demonstrate Fourth Amendment standing to challenge the seizure and search of data generated by a spyware program installed at his direction on electronic devices used by his girlfriends and members of the cartel, and in any case lacked a reasonable expectation of privacy after giving third parties access to the data. Although the warrant to seize and search the spyware data was issued by a magistrate judge in the SDNY but directed to data located in the Western District of Washington, in violation of Rule 41(b)(1)’s venue provision, the Stored Communications Act, which has no similar venue restriction, authorized the warrant. Thus, the Circuit held that “the geographical limitations of Rule 41(b) do not apply to warrants issued under [18 U.S.C. § 2703].”
5) The district court did not abuse its discretion in making certain evidentiary rulings or in limiting cross-examination of some cooperating witnesses.
6) Guzman Loera’s trial counsel did not have a per se conflict of interest, because counsel’s alleged misconduct—aiding Guzman Loera in violating the SAMs by “hiring a belly dancer to be his daily visitor” and “negotiating questionable settlements” in other cases—was not related to the charged crimes.
7) Guzman’s Loera’s Fifth and Sixth Amendment right to present a complete defense was not infringed by the district court’s ruling precluding him from arguing that investigatory and prosecutorial bias compromised the reliability of the government’s case. There was no evidence of any Brady violations, Guzman Loera was allowed to challenge the credibility of the government’s witnesses on cross-examination, and the issue of selective prosecution/outrageous government conduct must be decided by the court, not the jury.
8) The district court’s unanimity instruction was correct.
9) The district court did not abuse its discretion in denying a new trial or an evidentiary hearing to investigate juror misconduct. In a post-verdict magazine article, an unnamed juror alleged that the jurors followed media coverage of the trial, in violation of their instructions, and read allegations—excluded from trial—that Guzman Loera drugged and raped underage girls. These unsworn, uncorroborated statements did not constitute the “clear, strong, and substantial” evidence of misconduct that necessitates inquiry. During trial, the district court twice canvassed the jurors about their exposure to media coverage, including the coverage mentioned in the article, and found that all jurors exposed to extra-record information remained impartial. Any exposure to media coverage was harmless in light of the overwhelming evidence of guilt. Nothing in the magazine article demonstrated juror partiality or bias.
10) The district court did not err in holding a conference with the government, Guzman Loera, and Guzman Loera’s “shadow counsel”—but without Guzman Loera’s counsel of record—to discuss a potential disposition. Guzman Loera was represented and chose not to plead guilty. The conference was prompted by Guzman Loera’s own overtures to the government, made without knowledge of his counsel of record.
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