While he was still in Mexico and leading the Sinaloa cartel, Joaquín “El Chapo” Guzmán-Loera twice escaped from maximum-security prisons, once in a laundry cart and another time through a mile-long tunnel dug underneath his cell. Now that he’s serving a life sentence in the U.S., a third jailbreak seems like a longshot. All he has left is the appellate process.
Lawyers for Chapo filed a 245-page brief with the 2nd Circuit Court of Appeals on September 4, listing 10 reasons why his 2019 conviction on drug, gun, and money laundering charges should be overturned. While the full document remains under seal, the introduction was filed publicly, listing a “roadmap of the appeal” and outlining the arguments for giving the world’s notorious drug lord a new trial. Additional excerpts were also shared with or described to VICE News, offering further details.
While conceding that the evidence presented at Chapo’s three-month trial was enough for the jury to return a guilty verdict, attorney Marc Fernich argues that the prosecution was “marred by rampant excess and overreach, both governmental and judicial.” The appeal attacks everything from Chapo’s extradition from Mexico (“tainted by fraud”); to his stint in solitary confinement (“made a fair trial impossible”); to the “unlawful searches and seizures” that gave the feds access to thousands of incriminating phone calls and text messages.
A spokesperson for the U.S. Attorney's Office in Brooklyn, where Chapo was prosecuted, declined to comment.
More than 60 pages of the appeal are focused on alleged juror misconduct revealed by VICE News. Eight days after Chapo’s conviction in February 2019, an anonymous juror spoke to us about disobeying the judge’s orders to avoid following the case in the media and discussing the trial with other jurors — issues that can be grounds for a mistrial. The juror said multiple people broke the rules and denied it when questioned by Judge Brian Cogan.
Cogan ruled in July 2019 against holding a hearing to investigate the juror misconduct, writing that “a mountain range of evidence” presented during the trial was more than enough to prove Chapo’s guilt. Cogan reasoned that any “average jury” would have convicted Chapo regardless of what they saw in the press, including information — not presented to the jury — that a witness claimed Chapo drugged and raped girls as young as 13.
But Fernich writes that “leaving the juror’s alarming allegations unexamined — whitewashing and sweeping them under the rug due largely to Guzman’s notoriety — indelibly tainted the verdict’s legitimacy.”
Suzanne Luban, a professor at Stanford Law School’s Criminal Defense Clinic, reviewed the public portion of Chapo’s appeal and told VICE News that the juror misconduct issues could be of interest to the appellate court because Cogan declined to call a hearing where jurors could have been questioned under oath about their behavior.
“This is the only claim I think he does have a prayer with,” Luban said. “The court has been denied a complete record upon which to rule, upon which to evaluate the prejudice. I thought the evidence that he raped underage girls was very damaging, there can’t be anything more inflammatory than that.”
(The juror who spoke to VICE News said that with all the other evidence in the case, the alleged rapes did not influence the verdict: “That didn't change nobody's mind for sure. We weren't really hung up on that.”)
Another news story published during Chapo’s trial is also referenced in the appeal, with Fernich calling out Cogan for “eschewing inquiry or investigation” into “published reports appearing to implicate lead defense counsel in criminal activity.” The article in question is a New York Post story from January 2019 that detailed an affair between Chapo’s lead trial attorney, Jeffrey Lichtman, and one of his female clients. The Post obtained text messages sent by Lichtman to the woman. In March 2017, he asked her if it’s “bad that I’m hiring a belly dancer to be Chapo’s daily visitor?… he has no pretty women visiting him. I feel bad.”
At the time, Chapo was being held in a high-security federal jail in Manhattan with strict rules about who was allowed to visit. Though it appears Lichtman was being facetious with his belly dancer remark, Fernich argues that Cogan was obligated to investigate further regardless.
The appeal also goes after Cogan’s decisions to limit cross-examination of key witnesses, including Alex Cifuentes the brother of a Colombian cocaine supplier who lived with Chapo at his hideouts in the mountains of Sinaloa. Cifuentes was behind the child rape allegations, but the jury also was not allowed to hear about his beliefs in aliens, the Illuminati, and witch doctors, which the defense argued would have undermined his credibility as a witness.
Lastly, Chapo’s appeal makes reference to “an undisclosed shadow counsel arrangement” allegedly created by prosecutors and Cogan. That agreement, Fernich writes, involved “conducting private judicial proceedings” without Chapo’s regular attorneys present.
A portion of the appeal obtained by VICE News further describes a “a sequence of apparent irregularities” in 2018, prior to the start of the trial. According to the document, prosecutors “engaged in discussions with a lawyer purporting to act for Guzman,” and later held a videoconference with the judge and another attorney who did not formally represent Chapo. This meeting, Fernich says, created “a potentially disqualifying appearance of judicial impropriety.” Citing a potential conflict of interest by Cogan, Fernich calls for another district court judge to be appointed to further investigate the claim.
Now that Chapo’s appeal has been filed, it will be up to a panel of 2nd Circuit judges to decide what happens next. The whole process will take months, if not years, and the odds of Chapo ever winning his freedom are extremely low, though it’s possible a second trial could be ordered.
Ray Donovan, who leads the DEA’s New York’s Division and coordinated the years-long hunt for Chapo, told VICE News the conviction will stand. “It isn’t surprising that Guzman’s lawyers filed the appeal because that is their job,” Donovan said. “Judge Cogan did his job by carefully reviewing any and all issues that were raised by the defense.”
In a statement to VICE News about the appeal, Fernich connected the prosecution of Chapo to broader issues with the American justice system. “Whether the War on Drugs is worth fighting at all — and whether it should be waged judicially or extra-judicially — are questions above my pay grade,” he said. But either way, he added, Chapo didn’t get a fair shake.
“He deserves the full range of procedural protections the Constitution guarantees every criminal defendant,” Fernich said. “Instead, he was tried and convicted under a special set of Chapo Rules. That’s unacceptable in this country and the verdict must fall.”