Petition for Writ of Certiorari — Joaquin Archivaldo Guzman Loera, Petitioner v. United States

App. 1

19-2239-cr

United States of America v. Beltran-Leyva (Guzman Loera)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2021

Argued: October 25, 2021

Decided: January 25, 2022

Docket No. 19-2239

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

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

Appeal from the July 18, 2019, judgment of the

District Court for the Eastern District of New York

(Brian M. Cogan, District Judge), convicting Joaquin

Archivaldo Guzman Loera, known as “El Chapo,” of

conducting a continuing criminal enterprise, drug

1

The Clerk is directed to conform the official caption as

above.

App. 2

trafficking conspiracies, unlawful use of a firearm, and

a money laundering conspiracy.

AFFIRMED.

MARC FERNICH, Law Office of Marc Fernich, New York, NY, for DefendantAppellant 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.

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

App. 3

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.

App. 4

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,

2

We note that the fact of a fourth superseding indictment,

09-CR-466 (S-4), is helpfully reflected by the ending “(S-4),” although the District Court’s docket entry reporting the judgment

App. 5

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 30year 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.

uses the letter “s” three times to identify counts of the fourth indictment. Twenty-two years ago, encountering a ninth superseding indictment, we suggested the use of “S9” or “S-9” in preference

to an indictment numbered with “s” repeated nine times. See

United States v. Marquez, 909 F.2d 738, 740 n.1 (2d Cir. 1990).

3

The numbering of the counts is from the jury’s verdict sheet

and differs from the numbering of the counts in the superseding

indictment.

App. 6

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 (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

App. 7

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

App. 8

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

App. 9

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, 924 F.2d 1289,

1291 (3d Cir. 1991) (“[I]n light of an express waiver by

the Commonwealth of Dominica of any restrictions on

his prosecution by the United States, Riviere cannot

successfully assert rights under the treaty.”). Thus, to

the extent there is any disagreement among the circuits about a defendant’s standing to raise a specialty

objection in the absence of a waiver by the extraditing

nation, there is no support for granting such standing

in a case like this, in which Mexico has explicitly consented to having Guzman tried on the instant indictment.

Because Guzman lacks standing to challenge his

trial on the basis of the extradition treaty, his specialty

claim was properly rejected.

2. Claim of Restrictions Denying Fifth and

Sixth Amendment Rights

Guzman contends that his Fifth and Sixth Amendment rights to present a defense and to have the effective assistance of counsel were unconstitutionally

restricted in various ways: (1) he was subjected to unduly harsh conditions of pretrial solitary confinement,

including special administrative measures (“SAMs”);

(2) he was denied access to material information that

the Government classified as implicating national security interests, and the Government unreasonably

App. 10

restricted his access to certain witnesses based on security concerns; and (3) he was denied the ability to

present a defense because the District Court issued an

improper protective order.

Conditions of pretrial confinement. Guzman contends that the conditions of his pretrial detention were

so harsh that they deprived him of a meaningful opportunity to participate in his own defense and to receive a fair trial. After Guzman was transferred to

E.D.N.Y., the United States Attorney General determined that Guzman was a substantial threat to others

and a flight risk and that several highly restrictive

SAMs should be implemented during his detention.4

The basis for the Attorney General’s characterization

included Guzman’s history of escaping from Mexican

prisons, having prospective witnesses murdered, bribing prison officials, and using third parties to continue

to manage the Sinaloa Cartel from prison.

Guzman was placed in Special Housing Unit 10

(“SHU”) of the Metropolitan Correctional Center with

highly restricted access to mail, media, telephone, and

visitors. The SHU is “the most secure housing available at any Bureau of Prisons facility in the New York

City Metropolitan Area and is generally reserved for

terrorism suspects and other inmates considered to be

a danger to other inmates and/or prison guards.” In re

4

The Attorney General may authorize implementation of

“special administrative measures that are reasonably necessary

to protect persons against risk of death or serious bodily injury”

pursuant to 28 C.F.R. § 501.3(a).

App. 11

Basciano, 542 F.3d 950, 953 n.1 (2d Cir. 2008) (citation

omitted).

As described by Guzman, and not disputed by the

Government, his conditions of confinement included

the following:

• he was confined to a small, windowless cell for

23 hours a day from Monday through Friday, with one

hour of exercise permitted in another solitary cell that

has a stationary bicycle and a treadmill;

• he was confined to his cell for 24 hours each

day on weekends without any exercise;

• he was always alone;

• his meals were passed through a slot in his

cell;

• the light in his cell was always on;

• with erratic air-conditioning, he often lacked

enough warm clothing to avoid shivering;

• he never went outdoors;

• although he purchased a small clock, it was removed from his cell; and

• without a window or access to natural light,

the clock was his only way to distinguish night from

day.

Guzman remained in the SHU for two-and-a-half

years before his conviction.

Because the SHU does not have room for contact

visits, Guzman’s meetings with counsel occurred in

App. 12

what the District Court called the “divided room” and

the “auxiliary room.” United States v. Guzman Loera,

No. 09-cr-00466, ECF No. 155 at 1-2 (E.D.N.Y. Oct. 17,

2017) (order denying defendant’s motion for contact

visits with attorney). In the divided room, Guzman and

his attorney were separated by a heavy metal door

with a narrow rectangular plexiglass window in the

top half. The attorney portion was equipped with a 32inch computer monitor. The “auxiliary room” contained

a computer monitor on the inmate’s side, and the Government later modified it to include a computer monitor on the attorney’s side.

The District Court denied Guzman’s motion to vacate the SAMs, ruling that the pretrial conditions of

Guzman’s detention passed constitutional muster under the four-factor test laid out in Turner v. Safley, 482

U.S. 78 (1987).5 The District Court pointed out that

Guzman’s second escape from a Mexican prison “was

accomplished under 24-hour video surveillance in solitary confinement.” United States v. Guzman Loera, No.

09-cr-00466, ECF No. 71 at 5 (E.D.N.Y. May 4, 2017)

(order granting in part and denying in part defendants’

motion to modify the SAMs).

5

The four Turner factors are: (1) a valid, rational connection

between the prison regulation and a legitimate government interest; (2) whether there is an alternative way for the prisoner to

exercise the asserted right; (3) the impact that accommodation of

the asserted right would have on guards, inmates, and prison resources; and (4) the absence of ready alternatives to the regulation at issue. 482 U.S. at 89-91.

App. 13

With respect to the denial of contact visits with

counsel, the District Court ruled that modifications to

the divided room and the auxiliary room enabled Guzman “to work effectively with his counsel.”6 Id., ECF

No. 155 at 6 (E.D.N.Y. Oct. 17, 2017).

Because Guzman’s constitutional objection to his

solitary confinement is predicated on his Fifth and

Sixth Amendment rights to present a defense and to

receive a fair trial, we apply the four-factor test laid

out in Turner, 482 U.S. at 89, to determine whether the

conditions in the SHU were “reasonably related to legitimate penological objectives or whether [they] represent[ed] an exaggerated response to those concerns.”

United States v. El-Hage, 213 F.3d 74, 81 (2d Cir. 2000)

(citation omitted). Where the prison regulation at issue

is imposed upon a pretrial detainee, as opposed to a

convicted prisoner, the restriction must be regulatory

6

In response to Guzman’s request for contact visits with

his counsel, Judge Cogan referred the issue to Chief Magistrate

Judge Roanne L. Mann, who recommended granting Guzman’s

request. Chief Magistrate Judge Mann’s concerns stemmed primarily from the conditions making it impracticable for Guzman

to review documents simultaneously with his counsel. Judge

Cogan declined to accept the recommendation after the Government proposed making several adjustments to Guzman’s conditions of confinement, including outfitting the auxiliary room with

a monitor on the attorney side and installing a slot to facilitate

the transfer of documents. Judge Cogan also noted that Chief

Magistrate Judge Mann could not have considered the Government’s modifications to the divided room and the auxiliary room

because the Government introduced them after she had made her

recommendation.

App. 14

and not punitive. See Bell v. Wolfish, 441 U.S. 520, 535

(1979); El-Hage, 213 F.3d at 81.

The District Court did not err in concluding that

Guzman was able to assist in his own defense and receive a fair trial, despite the conditions of his pretrial

confinement. First, the Government demonstrated a

sufficient connection between its security concerns and

Guzman’s segregation from the general prison population. Guzman’s history of bribing prison officials,

harming cooperating witnesses, escaping from prison,

and continuing to manage his illegal enterprise from

jail were valid bases for the Government to seek his

segregation. See El-Hage, 213 F.3d at 81 (finding a legitimate government purpose in preventing a pretrial

detainee from communicating with others to orchestrate terrorist attacks by placing him in solitary confinement); United States v. Felipe, 148 F.3d 101, 110 (2d

Cir. 1998) (first Turner factor satisfied because “Appellant has shown himself to be resourceful in the past[,

and] it cannot now be definitely determined that he

will refrain from . . . order[ing] the commission of a violent act”). Next, the Government was entitled to deem

the only alternative to Guzman’s solitary confinement—release into the general prison population—unacceptable. The Government’s security concerns stemmed

primarily from Guzman’s behavior if he were to communicate with others, and therefore no “ready alternative[ ]” was available. Turner, 482 U.S. at 90; see also

El-Hage, 213 F.3d at 82 (confinement in general population not a reasonable alternative “[b]ecause [appellant’s] dangerousness arises out of the information he

App. 15

might communicate to others”). Finally, the risk to

prison guards and other inmates if Guzman were

placed in the general population is also supported by

the Government’s evidence that he previously bribed

prison officials and attempted to harm cooperating witnesses. See Felipe, 148 F.3d at 111 (likelihood that appellant would continue illegal activity if he were able

to communicate with others “could significantly impact

not only his fellow inmates, but also individuals living

outside prison”). Each Turner factor supports the Government’s legitimate security concerns.

The conditions of Guzman’s pretrial confinement,

harsh as they were, do not provide a basis for disturbing his conviction. We emphasize that our task is limited to considering his claim that those conditions

violated his Fifth and Sixth Amendment rights. We

have no occasion to consider whether these conditions

might have warranted relief directed to modifying the

conditions before trial.

Protective orders. Guzman contends that the District Court’s April 3, 2017, protective order was improper for two reasons. First, he challenges paragraph

6, which prohibited removal from the United States of

what the order termed “Protected Discovery.” Protected Discovery was defined to include witness statements, information that could lead to the identification

of potential witnesses, information related to ongoing

investigations, and information related to sensitive

law enforcement techniques. Second, he challenges

paragraph 5, which required District Court approval

before Protected Discovery could be shown to persons

App. 16

not part of defense counsel’s team, other than prospective expert witnesses. Paragraph 5 also required defense counsel to submit the names of such persons to

so-called firewall counsel,7 who would have an opportunity to respond to the District Court prior to the

Court’s approval.

These restrictions were well within the discretion

of the District Court under Rule 16(d)(1) of the Federal

Rules of Criminal Procedure, see Alderman v. United

States, 394 U.S. 165, 185 (1969), and no substantial

prejudice, which is required to warrant relief, see

United States v. Vinas, 910 F.3d 52, 60 (2d Cir. 2018),

has been shown.

Guzman also challenges the District Court’s Feb.

5, 2018, and April 4, 2018, protective orders, permitting the Government to defer disclosure of various discovery documents until close to the trial. These orders,

indeed, all aspects of the District Court’s entire management of discovery, were also within the District

Court’s broad discretion in such matters. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552

F.3d 93, 122 (2d Cir. 2008); United States v. Delia, 944

F.2d 1010, 1018 (2d Cir. 1991).

Ex parte filings. Guzman challenges various instances in which the Government submitted ex parte

filings to the District Court. He contends that these

7

Firewall counsel were Government lawyers familiar with

the Guzman investigation, who maintained complete separation

from the prosecuting lawyers. See United States v. Yousef, 327

F.3d 56 (2d Cir. 2003) (approving use of firewall counsel).

App. 17

filings were improper under this Court’s decision in

United States v. Abuhamra, 389 F.3d 309 (2d Cir.

2004). In Abuhamra, we ruled that it was improper for

the District Court to rely on an ex parte affidavit filed

by the Government because it was submitted in opposition to a request for bail pending sentencing and affected the defendant’s liberty. See 389 F.3d at 322. The

filings challenged in the present case were not presented to justify any restriction on liberty interests

similar to those at issue in Abuhamra. Instead, they

were offered for such matters as support of deferred

disclosure of discovery, to inform the District Court

about Guzman’s housing during trial, and a request to

permit a witness to testify under a pseudonym. The

District Court carefully explained sufficient bases for

each use of an ex parte filing.

Classified Information Procedures Act (“CIPA”)

motions. Guzman objects on appeal to several ex parte

motions made by the Government concerning material

protected under CIPA, 18 U.S.C. app. 3 §§ 1-16. Guzman received contemporaneous notice of all the motions to which he now objects, and did not oppose any

of them in the District Court. Under applicable standards of plain error review, see United States v. Olano,

507 U.S. 725, 736-37 (1993), there is no basis for any

relief.

App. 18

3. Murder Conspiracy Claim

Guzman contends that the District Court erred in

denying his motion to dismiss Violation 27,8 one of the

offenses within the CCE offense charged in Count I.

Violation 27 alleged Guzman’s role in a murder conspiracy in violation of 21 U.S.C. § 848(e). Guzman challenges Violation 27 because, he argues, section 848(e)

is only a sentencing enhancement and not a separate

substantive offense.

Section 848 criminalizes participation in a CCE,

and subsection 848(e) authorizes the death penalty for

intentionally killing someone while engaged in a CCE.

See 21 U.S.C. § 848(e)(1)(A)-(B). This Court has construed section 848(e) to constitute a separate substantive offense rather than a sentencing enhancement.

See United States v. Fletcher, 997 F.3d 95, 97 (2d Cir.

2021) (“[A] violation of § 848(e)(1)(A) is a standalone,

substantive offense that is distinct from the underlying drug crime.”). Furthermore, the Supreme Court

has instructed that “[a]ny fact that, by law, increases

the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable

doubt.” Alleyne v. United States, 570 U.S. 99, 103

(2013); see also Apprendi v. New Jersey, 530 U.S. 466,

476 (2000). Because section 848(e) increases the mandatory minimum for predicate offenses from 10 to 20

years and increases the maximum penalty from life

8

The murder conspiracy was charged as Violation 85 of

Count I of the 4th superseding indictment but was submitted to

the jury as Violation 27.

App. 19

imprisonment to death, it “constitute[s] a new, aggravated crime, each element of which must be submitted

to the jury.” Alleyne, 570 U.S. at 113.

Guzman’s motion to dismiss Violation 27 was

properly denied.

Guzman also contends that even if section 848(e)

creates a standalone offense, the introduction of evidence of the murders violated Rule 403 of the Federal

Rules of Evidence because such evidence was both

prejudicial and cumulative. However, evidence of these

murders was admissible as direct proof of the CCE

charge. The crux of the Government’s case against

Guzman was that he was the ringleader of the Sinaloa

Cartel. Evidence that he ordered murders to maintain

control went directly to his role as the leader of the cartel. The District Court had discretion to allow the jury

to hear about the lengths to which Guzman went to

maintain control over his criminal enterprise.

4. Fourth Amendment and Rule 41 Claims

Guzman contends that evidence of calls and text

messages derived from two surveillance operations

should have been suppressed.

The Dutch Calls. Guzman contends that the Government violated the Fourth Amendment when it obtained conversations in telephone calls stored on

servers in the Netherlands (the “Dutch Calls”) and

that the District Court erred in not suppressing these

conversations. Obtaining these conversations was the

App. 20

result of several events. Before any action by the Government, a computer engineer had set up a private, encrypted communications system, which was used by

Guzman and some of his Colombian cocaine suppliers.

In 2008, Guzman met the engineer and asked him to

set up a similar network (“Guzman Network”) to enable him and members of the Sinaloa Cartel to communicate with each other. The Guzman Network

consisted of several servers that supported voice communications, emails, and text messages. These servers,

initially located in Colombia, were moved to Mexico

and then to Canada.

In early 2011, FBI agents obtained the cooperation

of the engineer, who then became a confidential source

(“CS”). At the direction of the FBI agents, the CS

moved the Guzman Network servers to the Netherlands.

The Government obtained the Dutch Calls from

the Guzman Network by three methods. First, Dutch

authorities conducted surveillance of three IP addresses associated with the network’s servers from

April 2011 through December 2011 after receiving Mutual Legal Assistance Treaty (“MLAT”) requests from

the Government and obtaining Dutch judicial authorization. Second, in early April 2011, after the

Government had submitted MLAT requests to Dutch

authorities, but prior to the beginning of the Dutch authorities’ surveillance, the CS accessed the servers directly and downloaded Guzman’s calls. The CS also

downloaded data from the servers in late June and

early July 2011, after the FBI became aware that the

App. 21

Dutch authorities’ interception method was not capturing all of the calls passing through the servers.

Third, in September and October 2011, Dutch authorities obtained search warrants for the servers after the

Government became aware that they contained specific calls.

Prior to trial, Guzman moved to suppress the

Dutch Calls, arguing that they were obtained in violation of the Fourth Amendment. In August 2018, the

District Court denied Guzman’s motion.

“The party moving to suppress bears the burden

of establishing that his own Fourth Amendment rights

were violated by the challenged search or seizure.”

United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991).

The District Court correctly ruled that Guzman had

failed to meet this burden because, to establish standing, he relied on the affidavit of an agent lacking personal knowledge that the Dutch servers belonged to

Guzman. See United States v. Montoya-Eschevarria,

892 F. Supp. 104, 106 (S.D.N.Y. 1995). Guzman does not

challenge this ruling on this appeal.

Even if Guzman had established standing, the

Fourth Amendment does not apply to “the search and

seizure by United States agents of property that is

owned by a nonresident alien and located in a foreign

country.”9 United States v. Verdugo-Urquidez, 494 U.S.

9

Although the CS was acting as an agent of the Government,

we need not determine whether Dutch authorities were Government agents. Even if the Dutch authorities are subject to the

App. 22

259, 261 (1990). With respect to the Dutch Calls, neither Guzman nor the servers on which the calls were

stored were located in the United States. Accordingly,

the Dutch Calls were not subject to Fourth Amendment protections.10

The FlexiSpy Data. Guzman contends that the

Government violated the Fourth Amendment and Rule

41 of the Federal Rules of Criminal Procedure when it

obtained and searched data captured by use of spyware

called FlexiSpy (a program that collects information

without the knowledge of device users). Before the CS

began assisting the Government, Guzman asked him

to provide the capability for Guzman to monitor the

conversations of his girlfriends. The CS purchased licenses for FlexiSpy, created usernames and passwords

for these accounts, and installed the spyware on various mobile devices that Guzman gave to his girlfriends

and members of the Sinaloa Cartel. The FlexiSpy software collected and stored messages sent to and from

these devices, including messages from Guzman discussing his criminal activities. These messages were

ultimately stored on an Amazon cloud server in the

Western District of Washington. Guzman effectively

higher standard applicable to Government agents, Guzman’s argument fails.

10

Guzman also argues for the first time on appeal that certain calls originating from an IP address ending in 103 were of

unexplained origin and therefore obtained in violation of the

Fourth Amendment. Guzman’s argument lacks merit because the

record demonstrates that these calls were routed through the

servers of the Guzman Network.

App. 23

intercepted his own messages and enabled the Government to do so as well.

In December 2011 and January 2012, at the direction of the FBI, the CS downloaded data from the Amazon server, which the FBI transferred onto DVDs.

After each download, the Government obtained warrants (“FlexiSpy Warrants I and II”) to search the

DVDs. The Government also obtained another warrant

(“FlexiSpy Warrant III”) to search the FlexiSpy data

directly, without any download.

In August 2018, the District Court denied Guzman’s motion to suppress the FlexiSpy data in the

same ruling that denied suppression of the Dutch

Calls. As with the Dutch Calls, the Court ruled that

Guzman lacked standing to make a Fourth Amendment challenge to the FlexiSpy data for lack of sworn

evidence. See Montoya-Eschevarria, 892 F. Supp. at

106. We agree.

In addition, the District Court ruled that even if

the Fourth Amendment applied, neither downloading

the FlexiSpy data nor searching the FlexiSpy data violated the Fourth Amendment because Guzman had

no reasonable expectation of privacy after giving access to the data to third parties such as the CS and coconspirators. See Carpenter v. United States, 138 S. Ct.

2206, 2216 (2018) (“[A] person has no legitimate expectation of privacy in information he voluntarily turns

over to third parties.” (citation omitted)). Again, we

agree.

App. 24

Guzman also contends that FlexiSpy Warrant III

was issued in violation of Rule 41 of the Federal Rules

of Criminal Procedure. Specifically, he contends that

this warrant violated the venue provision of Rule

41(b)(1) because a magistrate judge in the Southern

District of New York issued the warrant for electronic

data located in the Western District of Washington.

The District Court ruled that, “although Rule

41(b) does not appear to provide a basis for the magistrate judge to have issued the warrant[,] . . . the Stored

Communications Act [(“SCA”)] does,” and such warrants do not need to comply with Rule 41(b).11 United

States v. Guzman Loera, No. 09-cr-00466, ECF No. 298

(E.D.N.Y. Aug. 30, 2018) (order denying defendant’s

motion to suppress). The parties agree that neither

the Supreme Court nor this Circuit has determined

whether warrants issued pursuant to the SCA are exempted from Rule 41(b)’s geographic restrictions.

However, three circuits have ruled that warrants

issued pursuant to the SCA are exempted from the

venue limitation of Rule 41(b), and no circuit has ruled

to the contrary. See United States v. Ackies, 918 F.3d

190, 201 (1st Cir. 2019); United States v. Bansal, 663

F.3d 634, 662 (3d Cir. 2011); United States v. Berkos,

543 F.3d 392, 397-98 (7th Cir. 2008). We agree with

our sister circuits and find that the geographical

11

Guzman argues that the warrant was not issued pursuant

to the SCA because it did not explicitly invoke the SCA. However,

the warrant application indicates that “immediate notification

may have an adverse result listed in 18 U.S.C. § 2705,” which is

a provision of the SCA.

App. 25

limitations of Rule 41(b) do not apply to warrants issued under SCA § 2703 for essentially the same reasons set forth in those decisions. See, e.g., Ackies, 918

F.3d at 201.

The District Court properly denied Guzman’s motion to suppress.

5. Evidentiary Rulings

Guzman challenges several evidentiary rulings. He

contends that the District Court incorrectly weighed

prejudice to the Government in deciding to preclude

evidence in several instances. Guzman relies on United

States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984),

to argue that the only issue for the District Court to

consider when seeking to admit evidence as a “shield”

under Rule 404(b) is “whether the evidence is relevant

to the existence or non-existence of some fact pertinent

to the defense.”12 Id. at 912. However, Aboumoussallem

also held that evidence that is relevant under Rule

404(b) may be excludable under Rule 403. Id. (“Though

admissible under Rule 404(b), relevant evidence may

be excluded under Rule 403 if its probative value is

substantially outweighed by ‘the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay. . . .’ ”) (quoting Fed R.

Evid. 403). In each of the alleged instances of error, the

12

While Guzman cites Rule 404(b), in many instances he actually sought to admit prior bad acts not to show motive, opportunity, plan, etc., but rather to impeach a witness. Such evidence

is admitted pursuant to Rules 607-609.

App. 26

District Court cited factors such as unfair prejudice,

confusion of the issues, or cumulative evidence as

grounds to exclude the evidence.

Guzman also contends that the District Court

erred when it admitted evidence that was “inextricably

intertwined” with evidence of the charged offense because “other circuits have criticized or done away with

. . . ‘inextricably intertwined’ theories of intrinsic evidence.” However, this Court has not. See United States

v. Quinones, 511 F.3d 289, 309 (2d Cir. 2007).

Guzman also contends that the District Court improperly permitted the Government to withhold evidence suggesting Guzman worked for other traffickers.

Guzman argues that the evidence was exculpatory and

required to be disclosed under Brady v. Maryland, 373

U.S. 83 (1963), because it “bore directly on whether

Guzman was a principal administrator, organizer, or

leader of the enterprise,” which is an element of 21

U.S.C. § 848(b). However, section 848(b) can also be satisfied if the defendant is “one of several such principal

administrators, organizers, or leaders.” Id. (emphasis

added). Therefore, the District Court had discretion to

rule that evidence that Guzman was not the sole leader

of the enterprise was not exculpatory.

Guzman challenges the District Court’s decision to

preclude cross-examination regarding a cooperating

witness’s auditory hallucinations suffered while in solitary confinement in 2001. The District Court may exclude evidence if its probative value is substantially

outweighed by its potential for unfair prejudice. See

App. 27

Fed. R. Evid. 403. The District Court properly excluded

evidence of the auditory hallucinations for various reasons, including their remoteness in time.

Finally, Guzman challenges the District Court’s

preclusion of cross-examination of another cooperating

witness regarding that witness’s paranoid beliefs and

alleged acts of drugging fellow prison inmates in Colombia. The District Court ruled that because the

witness’s unorthodox beliefs did not “fundamentally

alter[ ] the witness’s ability to function or participate

in everyday life,” the witness’s beliefs could not be the

subject of cross-examination. United States v. Guzman

Loera, No. 09-cr-00466 (BMC) (E.D.N.Y. Nov. 12, 2018)

(order denying defendant’s request for reconsideration

of preclusion of evidence). The Court also ruled that

the other proposed cross-examination would have been

cumulative and had little probative value. The exclusion of this cross-examination was within the District

Court’s discretion and not remotely prejudicial.

6. Conflict of Interest Claim

Guzman contends, for the first time on appeal,

that his lawyer, Jeffrey Lichtman, had a per se conflict of interest because Lichtman allegedly “negotiated questionable settlements” in other cases and

aided Guzman in violating the SAMs. Guzman’s allegations are based on leaked texts allegedly written by

Lichtman including one in which Lichtman asked if it

is “bad that I’m hiring a belly dancer to be Chapo’s

daily visitor? . . . he has no pretty women visiting him.

App. 28

I feel bad.” and another in which Lichtman indicated

that in the “past year I’ve gotten three insanely high

settlements for consensual sex as sex harassment.”13

“The trial court has an obligation to inquire into

the facts and circumstances of an attorney’s interests

either in response to a timely conflict of interest objection, or ‘when it knows or reasonably should know of

the possibility of a conflict of interest.’ ” United States

v. Stantini, 85 F.3d 9, 13 (2d Cir. 1996) (citation omitted) (quoting Strouse v. Leonardo, 928 F.2d 548, 555 (2d

Cir. 1991)). This Court recognizes three types of conflicts of interest: per se, actual, and potential. See

United States v. Williams, 372 F.3d 96, 102-03 (2d Cir.

2004). “[A] per se conflict of interest requires ‘automatic

reversal without a showing of prejudice.’ ” Id. at 103

(quoting United States v. John Doe No. 1, 272 F.3d 116,

125 (2d Cir. 2001)). We have recognized a per se conflict “only where trial counsel is not authorized to practice law and where trial counsel is implicated in the

‘same or closely related criminal conduct’ for which the

defendant is on trial.” Id. (quoting United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993)). Even if the allegations against Lichtman are credible, aiding violation of

the SAMs and conduct in other cases is not the “same

or closely related” criminal conduct for which Guzman

is on trial. There was no per se conflict of interest.

13

Dana Schuster, Sarma Melngailis Had a Steamy Affair

with Her Married Lawyer, N.Y. Post (Jan. 12, 2019), https://nypost.

com/2019/01/12/sarma-melngailis-had-an-x-rated-relationship-withher-married-lawyer/ (last visited Jan. 8, 2022).

App. 29

7. Denial of Complete Defense Claim

Guzman contends that the District Court deprived

him of his right to present a complete defense in violation of the Fifth and Sixth Amendments by precluding

him from arguing that “investigatory and prosecutorial bias hopelessly tainted the integrity and reliability

of the case the [G]overnment had assembled, rendering it wholly unworthy of belief.” Prior to trial, the Government moved to preclude a selective prosecution

defense, and the District Court granted the motion.

Nonetheless, at trial Guzman’s counsel argued that the

Government was biased and driven by an improper

motive. The District Court warned counsel to discontinue such arguments and issued a curative instruction.

Guzman’s argument relies primarily on Kyles v.

Whitley, 514 U.S. 419 (1995). In Kyles, the prosecution

committed a Brady violation by failing to provide exculpatory evidence, including inconsistent statements

made by a key witness. See id. at 454. The Court observed that, with knowledge of the statements, “the defense could have examined the police to good effect on

their knowledge of [the witness’s] statements and so

have attacked the reliability of the investigation in

failing even to consider [the witness’s] possible guilt

and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted.”

Id. at 446. Kyles concerned the use of police negligence

or misconduct to question the quality of the investigation, whereas Guzman sought to argue improper motive and accuse the Government of suborning perjury.

App. 30

See United States v. Rosado, 728 F.2d 89, 93 (2d Cir.

1984) (defense improperly “invited jury nullification by

questioning the Government’s motives in subpoenaing

appellants and prosecuting them for contempt”). Here,

there is no evidence of a Brady violation, and Guzman

was permitted to cross-examine witnesses and challenge their credibility. Furthermore, Guzman’s arguments concerning prosecutorial bias amount to claims

of selective prosecution and outrageous Government

conduct, both of which must be decided by the trial

court, not the jury. See United States v. Farhane, 634

F.3d 127, 167 (2d Cir. 2011) (selective prosecution);

United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d

Cir. 1980) (outrageous government conduct). Guzman

was not deprived of a complete defense.

8. Unanimity Charge Claim

In his pro se brief, Guzman contends that the jury

instruction on unanimity was erroneous because, he

argues, it required the jury to reach a verdict. However,

there was no such requirement. The District Court’s

standard language on the purpose of jury deliberations

included urging the jurors to consider each others’

views “and to reach an agreement based on the evidence presented, if you can do so without violence to

your own individual judgment.” The instruction continued by telling the jurors that “[i]f . . . you still entertain a conscientious view that differs from the others,

you’re not to yield your conviction simply because

you’re outnumbered.” Id. at 7040:20-25. The charge

was entirely correct.

App. 31

9. Juror Misconduct Claim

Guzman contends that the District Court abused

its discretion by denying his motion under Rule 33 of

the Federal Rules of Criminal Procedure for a new trial

and an evidentiary hearing based on alleged juror misconduct. The claim is based on a magazine article that

appeared in a publication called “VICE News” one

week after the jury returned its verdict. In the article,

an unnamed juror alleged that the jurors followed media coverage of the trial on Twitter in violation of their

oaths and the District Court’s partial sequestration order, and that they heard about allegations of defense

counsel’s personal affairs, as well as allegations—

precluded from the evidence at trial by the District

Court—that Guzman drugged and raped underaged

girls. The Government responds that the District

Court properly investigated the allegation of juror exposure to media and sufficiently instructed the jury.

As an initial matter, the District Court did not exceed its discretion in denying Guzman’s request for a

factual hearing. Courts should be especially “hesitant

to haul jurors in after they have reached a verdict in

order to probe for potential instances of bias, misconduct or extraneous influences.” United States v. Sun

Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). “Allegations of juror misconduct . . . raised for the first time

days, weeks, or months after the verdict, seriously disrupt the finality of the process.” Tanner v. United

States, 483 U.S. 107, 120 (1987).

App. 32

Here, the unsworn, uncorroborated statements

that one unidentified juror made to a magazine reporter do not constitute the “clear, strong, substantial

and incontrovertible evidence,” Moon, 718 F.2d at 1234,

requiring any juror inquiry beyond that already made.

The District Court was keenly aware of the vast media

coverage that Guzman’s trial received every day. Judge

Cogan instructed the jury that it was imperative to

avoid all media coverage about the case, first during

three days of voir dire, then daily, and sometimes twice

daily, during the trial, and again in his final jury

charge.

On two separate occasions during the trial, the

District Court canvassed the jury and spoke with jurors individually about news articles they had seen.14

The first was after publication of an article reporting

an affair by Guzman’s trial attorney. The second was

after extensive media publicity concerning allegations

of Guzman drugging and sexually abusing underage

women. In the presence of counsel for both parties,

Judge Cogan spoke to the two jurors who admitted to

exposure to extra-record information and concluded

that these jurors remained impartial.15 The District

Court did not exceed its discretion by refusing to bring

14

The District Court followed the three-part test that this

Court outlined in United States v. Gaggi, 811 F.2d 47, 51 (2d Cir.

1987), to determine whether media coverage affected a juror’s

ability to be impartial.

15

One juror briefly noticed a newspaper headline concerning

the case before turning away. The other juror saw only the words

“El Chapo had” on an internet application, Reddit, before closing

the page.

App. 33

the jury back to court to ask them the same questions

again. The Court was allowed to credit its own observations over an unidentified juror’s statements in an

uncorroborated news article.

The District Court also properly denied Guzman’s

request for a new trial. Judge Cogan thoroughly examined each basis for Guzman’s motion for a new trial

and—presuming the allegations in the VICE News article to be true—determined that the jury was not prejudiced by any extraneous information to which they

might have been exposed. Moreover, any possible prejudice was harmless in view of the overwhelming evidence of Guzman’s guilt that was presented at his

three-month long trial. See Farhane, 634 F.3d at 16869 (“While the law presumes prejudice from a jury’s

exposure to extra-record evidence, that presumption

may be rebutted by a ‘showing that the extra-record

information was harmless.’ ” (citations omitted) (quoting Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994)).

Guzman argues that the article demonstrates that

the jury lied to the Court, which, he contends, constitutes structural error. We disagree. None of the allegations in the VICE News article shows that any juror

was not impartial, harbored bias against Guzman, or

was otherwise unfit to serve. There was no structural

error that deprived Guzman of “ ‘basic protections’

without which ‘a criminal trial cannot reliably serve

its function as a vehicle for determination of guilt or

innocence.’ ” Neder v. United States, 527 U.S. 1, 8-9

(1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78

(1986)). The District Court properly concluded that,

App. 34

even crediting the article’s allegations, any untruthfulness on the part of the jury” does not mandate an automatic reversal without a showing of harm.” United

States v. Guzman Loera, No. 09-cr-00466, ECF No. 633

at 40 n.23 (E.D.N.Y. July 3, 2019) (order denying defendant’s motion for new trial).

The District Court did not exceed its discretion in

denying Guzman an evidentiary hearing or a new trial,

and neither is warranted now.

10. Improper Ex Parte Proceeding Claim

Guzman finally contends that the District Court

and the Government engaged in improper ex parte

communications that undermined Guzman’s defense.

Specifically, Guzman contends that at some point in

2018, the District Court conducted a video conference with Government counsel, Guzman himself, and

“shadow counsel” appointed to represent Guzman, in

the absence and without the knowledge of his counsel

of record, to discuss a potential disposition of the

case. The problem arose when lawyers purporting to

represent Guzman contacted the Government and attempted to initiate plea negotiations, representing

that Guzman had authorized their actions but did not

want his counsel of record to be aware of their involvement. The District Court appointed an independent

lawyer, who had previously been assigned to advise

Guzman in connection with a conflict of interest inquiry pursuant to United States v. Curcio, 680 F.2d 881

(2d Cir. 1982), to consult with Guzman and advise the

App. 35

Court and the Government as to his preferences with

respect to representation. The conference was intended

to explore Guzman’s choice of counsel and whether he

would accept a plea bargain.

As Guzman concedes, he was represented at the

conference and, as is obvious, he chose not to plead

guilty. It is understandable why, at that time, Guzman

would not have wanted his counsel of record to attend

the conference. The entire sequence of events was set

in motion by Guzman’s own effort to engage in overtures to the Government without the knowledge of his

counsel of record. The conference was not an improper

ex parte communication, and Guzman’s request for a

factual inquiry before a different district court judge is

denied.

CONCLUSION

Judge Cogan conducted the three-month trial with

diligence and fairness, after issuing a series of meticulously crafted pretrial rulings. For the reasons set forth

above, the resulting judgment of the District Court is

AFFIRMED.