Here’s why it’s taking so long for El Chapo’s jury to reach a verdict

The evidence is overwhelming — and that's part of the problem.
February 6, 2019, 2:27pm
CHAPO

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BROOKLYN, New York — Jurors in the trial of Joaquín “El Chapo” Guzmán sat through nearly three months of damning testimony and heard just 30 minutes from the only witness called by the defense. But as of Wednesday, after a day and a half of deliberations, they still haven’t made up their minds about whether he ought to be convicted or acquitted.

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So what gives? How is there any doubt that the leader of the Sinaloa cartel is guilty as charged? And what happens if, by some miracle, he wins an acquittal?

These are the questions I’ve been getting on Twitter, where I’ve been posting real-time updates from the trial since the first day of jury selection in November. I sat through the same testimony as the eight women and four men on the jury. Much of it was riveting. Some of it was gruesome. Parts of it were dreadfully boring. But combined with hard evidence like wiretapped phone calls, intercepted text messages, and Chapo’s own handwritten drug ledgers and notes, a quick conviction seemed like a no-brainer.

But there are some good reasons why the deliberations are taking so long. Here’s a quick rundown on what’s going on as the jury continues to deliberate.

Why did this take more than a few minutes? Isn’t it obvious that El Chapo is guilty?

The evidence is overwhelming. In addition to the testimony by 57 witnesses (only one of whom was called by the defense), there were hundreds of exhibits admitted into evidence, including photos, recordings, documents, kilos of cocaine, and several AK-47s.

It’s a lot to process, and reaching a verdict isn’t as simple as deciding guilty or not guilty. Chapo faces a 10-count indictment, and one of the charges includes 27 separate violations. The jury has to take the time to carefully decide whether prosecutors met the burden of proof for each and every charge, then fill out a complicated eight-page form explaining their decision.

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Read more: El Chapo witness reveals news details about the epic motorcycle tunnel escape.

What happens if there’s a hung jury or he’s acquitted?

It’s still highly unlikely — almost inconceivable, really — that El Chapo will win an outright acquittal. A conviction on just one of the 10 counts would probably still land Chapo in prison for the rest of his life. Count one, which charges him with leading a “Continuing Criminal Enterprise,” carries a mandatory sentence of life without parole. Under federal sentencing guidelines for the other charges, he could still receive life or a lengthy sentence that would realistically be the equivalent of life, since he’s 61 years old now.

Read more: The 10 wildest moments and stories from the trial

If the jury ends up hopelessly deadlocked on one or more of the charges, the government would simply try again. They could do another trial in New York, or send Chapo to one of the five other federal jurisdictions where he’s still under indictment. Same with a mistrial, which could happen if some new information comes to light at the last minute about the jury being compromised (e.g., multiple jurors come forward and say they were exposed to the recent news, not mentioned during the trial, that El Chapo was accused of drugging and raping young girls.)

If somehow Chapo is found not guilty on all counts, he would probably still not be allowed to walk free. U.S. Marshals could simply re-arrest him in the courtroom after the verdict, and the government would try to send him to stand trial on one of those indictments in another jurisdiction, such as El Paso, San Diego, or Chicago. The defense would likely try to fight this by arguing that any charges against Chapo in the other courts are tantamount to double jeopardy, since he would have already beaten the broad conspiracy charges in Brooklyn that cover almost all of his (alleged) criminal career.

What do we know about the jury?

Not much. Judge Brian Cogan decided before the trial that the jurors would remain anonymous for security reasons, since the Sinaloa cartel has a history of threatening, intimidating, and sometimes murdering people who try to put El Chapo behind bars. The jurors are not sequestered, which means they’re allowed to go home every day, but they are escorted to and from the courthouse under the guard of U.S. Marshals.

The jurors are all from the Eastern District of New York, which includes Brooklyn, Queens, Staten Island, and Long Island. They are a diverse group, including two fluent Spanish speakers, several African-Americans, and, judging solely by appearances, a roughly 50/50 mix of younger and older folks. We don’t know much about their lives, but it came out during jury selection that one is retired from the Department of Corrections and another has family members who work for the Department of Homeland Security. The foreperson is Juror 11, a black woman who looks to be in her late 40s or early 50s.

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When I spoke in November to a woman who took part in jury selection but did not make the final cut, she said several prospective jurors were unhappy that the trial was happening at all: “People were saying, ‘How dare the government waste money having the trial here in the US.’ It was basically, ‘He’s Mexican and he was extradited and he should have been tried in Mexico, not here.’ That was a common thread.”

Read more: This is what it's like to almost get picked for Chapo's jury.

What signals have the jurors been sending so far?

So far, they have sent notes to the court asking for guidance on one technical question about the charges and requesting access to some specific bits of evidence and testimony.

The question, sent Monday afternoon in the first note to the court, asked: “Is a ‘drug war’ considered part of a drug trafficking crime (with specific reference to the weapons charge)”?

This referenced count nine of Chapo's indictment, which has to do with use of weapons. The jury seemed to be asking if drug wars — against Los Zetas and other cartels — referenced elsewhere in the indictment could be used to convict Chapo on this one specific charge. Judge Cogan told the jury “you may, if you choose, consider evidence of the drug war”, but he instructed them to first decide whether Chapo is guilty of counts one, two, three, and four in his indictment. Those charges are:

Count 1: Engaging in a Continuing Criminal Enterprise

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Count 2: International Cocaine, Heroin, Methamphetamine and Marijuana Manufacture and Distribution Conspiracy

Count 3: Cocaine Importation Conspiracy

Count 4: Cocaine Distribution Conspiracy

The jury can’t consider counts nine and ten — which are the charges for firearms and money laundering — unless they first decide that Chapo is guilty of at least one of the drug counts.

Are you confused? The jurors might be too.

The jurors also sent a note Monday that asked: "Is ephedrine considered methamphetamine?" The answer isn’t totally clear. As the defense argued, ephedrine is a precursor chemical used to synthesize meth — it’s not actually meth. But as the prosecution countered, Chapo is charged with conspiracy to manufacture meth, and there was a lot of testimony about Chapo and the cartel acquiring ephedrine to make meth. Cogan ultimately told the jury to consider the evidence and let the record speak for itself.

On Tuesday, the jury asked for the transcript of a wiretapped phone call where Chapo could be heard asking someone to “to find customers for ice over there in the United States.” The audio of the call was also played for the jury. They also requested testimony from Rey Zambada, the brother of Chapo’s Sinaloa cartel co-leader El Mayo Zambada, about "Chespiro," Zambada testified that Chespiro was Chapo’s chief meth maker in Sinaloa and wanted help setting up a front company to import 15-20 tons of ephedrine from Asia.

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The jurors also asked for the full testimony of witnesses Alex Cifuentes, Jorge Cifuentes, and Juan Aguayo. The Cifuentes brothers are Colombians who were highly involved in El Chapo’s drug business, and they were each on the witness stand for several days. The judge offered to send the jurors transcripts, but it’s an awful lot of material to review. Alex and Jorge both testified about ephedrine, but the jury didn’t ask for those bits specifically — they wanted the whole enchilada. This is good for Chapo, since the Cifuentes brothers were both subjected to grueling cross-examinations by his lawyer Jeffrey Lichtman.

Aguayo was a Border Patrol agent who arrested three Mexican men caught trying to smuggle over 400 kilos of marijuana onto a beach near Malibu, California, on Jan. 15, 2012. One of the drug conspiracy charges against Chapo refers specifically to this marijuana shipment, which was linked to Chapo through text messages with one of his mistresses, which U.S. authorities were able to intercept because he installed spyware on her phone.

Read more: How the FBI hacked Chapo's encrypted phone network.

Is it possible that the Sinaloa cartel has gotten to one or more of the jurors?

Probably not. As noted earlier, the jurors are anonymous and receive protection from the U.S. Marshals. Interfering with the jury would also be a very risky move for the cartel with little chance of it paying off. An acquittal or hung jury would be embarrassing for the Justice Department, but it would not be the end of Chapo’s legal problems.

Meanwhile, the Sinaloa cartel’s business seems to be running smoothly even without Chapo. His sons and brother have taken over his faction of the cartel, and his partner El Mayo still has never been captured. Why bother meddling with Chapo’s jurors when the drugs and money are still flowing?