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United States v. Guzman Loera

United States District Court, E.D. New York

June 29, 2017

Joaquin Archivaldo Guzman Loera, also known as “El Chapo, ” “El Rapido, ” “Chapo Guzman, ” “Shorty, ” “El Senor, ” “El Jefe, ” “Nana, ” “Apa, ” “Papa, ” “Inge” “El Viejo, ” and “Joaquin Guzman-Loera, ” Defendant.


          Brian M. Cogan District Judge.

         Before the Court are three pending issues: (1) defendant's motion for an Order to Show Cause related to the Government's use of ex parte filings and seeking disclosure of the ex parte filings; (2) defendant's motion to compel discovery; and (3) the Government's request for clarification regarding the Court's May 4, 2017 and May 8, 2017 Orders relating to the use of previously-designated firewall counsel. The Court disposes of each issue as follows.

         I. Motion for an Order to Show Cause related to the Government's Ex Parte Filings

         Defendant has moved for an Order to Show Cause, asking this Court to require the Government to (i) seek Court permission, on notice to defendant, before filing any ex parte submission in the future; (ii) provide defendant with all of the ex parte filings made thus far, or at a minimum, summaries of these filings; and (iii) provide defendant with, at a minimum, a summary or redacted version of future ex parte filings. For the following reasons, the Court denies the motion in all respects except as to disclosure of the Third Ex Parte Submission.

         A. Background

         The Government has made four ex parte submissions since defendant's arraignment in January 2017. See ECF Nos. 31, 45, 66, 78. None of these ex parte filings were stand-alone filings; rather, all were supplemental submissions to public submissions or statements by the Government.

         The First Ex Parte Submission, see ECF No. 31, supported the Government's request that the Court prohibit in-person visits or phone calls between the defendant and his wife and between defendant and his private attorneys from Mexico. The First Ex Parte Submission contained information obtained from cooperating witnesses and ongoing investigations, and it supplemented the arguments that the Government made during the February 3, 2017 status conference in this matter.

         The Second Ex Parte Submission, see ECF No. 45, supported the Government's motion for a protective order pursuant to Federal Rule of Criminal Procedure 16(d)(1). The Second Ex Parte Submission supplemented the Government's publicly-docketed submissions in support of the protective order. See ECF Nos. 28, 44. The information contained in the Second Ex Parte Submission included, again, information from ongoing investigations and cooperating witnesses (including expected testimony), in addition to information related to sensitive law enforcement techniques. Moreover, in the public filings, the Government generally summarized the content of the Second Ex Parte Submission.

         Sometime later, the Government relied on the First and Second Ex Parte Submissions in opposing defendant's motion to vacate or modify the Special Administrative Measures (“SAMs”). The Government's briefings regarding the SAMs were public, see ECF Nos. 52, 58, and the First and Second Ex Parte Submissions provided supplements to the arguments that the Government raised publicly.

         The Third Ex Parte Submission, see ECF No. 66, supported the Government's request for a Curcio hearing. The Government had publicly filed its request for a Curcio hearing, see ECF No. 65, and provided the Third Ex Parte Submission to give the Court detailed information relating to the potential conflicts. The ex parte filing gave the names of the four witnesses, which were previously provided to defense counsel only, locations of the witnesses' families, their relationships with defendant, and whether the witnesses assented to having their identities revealed to defendant (they did not).

         The Fourth Ex Parte Submission, see ECF No. 78, supported the Government's request for clarification arising from the Court's May 4, 2017 and May 8, 2017 Orders. The Government's request, resolved infra, see Section III, was publicly filed, see ECF No. 77, and the Fourth Ex Parte Submission supplemented the public arguments with detailed examples of new facts learned in the course of the ongoing investigation. The Fourth Ex Parte Submission detailed information from a confidential source, cooperating witnesses, and other investigative sources that indicated that defendant had used intermediaries, including family members and attorneys, to facilitate his previous escape from prison and to threaten potential witnesses.

         Thus, all four of the ex parte submissions were supplemental filings, containing information related to either cooperating witnesses, confidential sources, the ongoing investigation, or sensitive law enforcement techniques. All of the ex parte submissions presented additional facts for the Court's consideration in resolving the publicly-filed motion practice.

         B. Legal Analysis

         Generally, ex parte communications[1] between the Government and the courts are disfavored because such communications deprive a defendant of notice relating to the precise content of the communications and an opportunity to respond. See In re Taylor, 567 F.2d 1183, 1187-88 (2d Cir. 1977). Moreover, some courts have posited that ex parte communications can “create both the appearance of impropriety and the possibility of actual misconduct.” United States v. Napue, 834 F.2d 1311, 1319 (7th Cir. 1987).

         These observations, however, do not mean that ex parte communications are never appropriate. In fact, courts across the country and in this Circuit have long recognized and accepted the use of ex parte communications from the Government in precisely the situations at issue here. First, ex parte communications between courts and prosecutors “have been recognized as necessary where the safety of witnesses is concerned.” United States v. McTier, No. 05-CR-401, 2006 WL 2707439, at *1 (E.D.N.Y. Sept. 20, 2006) (citing Napue, 834 F.2d at 1318; United States v. Pringle, 751 F.2d 419, 426 (1st Cir. 1984)). Cf. Roviaro v. United States, 353 U.S. 53, 59 (1957) (“What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.”).

         Second, ex parte communications have been routinely permitted where “there are ongoing investigations into criminal conduct related to the discovery materials” and “public disclosure of some of these materials plausibly could undermine these investigations.” United States v. Smith, 985 F.Supp.2d 506, 531 (S.D.N.Y. 2013). Ex parte communications in this context are particularly appropriate where disclosure could “(i) reveal the targets of the investigations and the suspected criminal conduct being investigated; (ii) disclose the type of evidence being collected, or that could be collected, against these individuals; and (iii) officially confirm who some of the cooperating witnesses in these investigations are.” Id. at 532. Courts, therefore, must be cognizant as to whether “[u]nsealing [this] information would eviscerate the Government's ability to continue its covert investigation.” United States v. Park, 619 F.Supp.2d 89, 94 (S.D.N.Y. 2009).

         These latter concerns also animate consideration of the third kind of ex parte communications, that is, information related to sensitive law enforcement techniques. This is because the disclosure of certain techniques (i.e., that certain kinds of evidence have been or could be collected) would likely prompt investigation targets to change course in how they conduct themselves, thus “eviscerat[ing] the Government's ability to continue its covert investigation.” Id.

         With all of these precedents in mind, it is abundantly clear that the Government's use of ex parte submissions to the Court has been appropriate in all respects. Each instance of an ex parte submission to the Court contained information relating to cooperating witnesses, confidential sources, ongoing investigations, or law enforcement techniques that courts, including this Court, have recognized as requiring protection to maintain the integrity of ongoing investigations and the judicial process.[2]

         I also reject defendant's argument that this Court should analyze the factors enunciated by the Second Circuit in United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004), to determine whether the ex parte filings were appropriate. The distinctions between the facts in this case and those in Abuhamra - and the cases that follow Abuhamra - are significant, such that the test is inapplicable. First, Abuhamra did not consider the propriety of ex parte filings in the pre-trial discovery context, “an area that is peculiarly within the discretion of the district court.” Napue, 834 F.2d at 1318 n.3. Rather, Abuhamra involved the submission of ex parte evidence in connection with post-trial detention proceedings, so that the Circuit's concern was “the most elemental of liberty interests - the interest in being free from physical detention by one's own government.” Abuhamra, 389 F.3d at 318 (internal quotation marks omitted).

         The closest factual comparison in this case is the Government's reliance on previously-filed ex parte information in opposing defendant's motion to vacate or modify the SAMs; however, even that context does not trigger the Abuhamra factors. Although the First and Second Ex Parte Submissions were used in support of the Government's opposition to defendant's motion to vacate the SAMs, they were not submitted initially for that purpose; thus, they remain properly confidential for separate reasons. More importantly, the imposition of SAMs on certain inmates implicates a far different constitutional concern than the issue in Abuhamra: The interest arising from the conditions of confinement of a pre-trial detainee is far less substantial than the pure liberty interest a convicted money-launderer has in seeking post-trial bail.

         Even the Supreme Court has recognized that a defendant's interest in his conditions of confinement is “far less weighty” than his liberty interest in avoiding detention in the first instance. Hewitt v. Helms, 459 U.S. 460, 475 (1983). Additionally, there is no question that a detained defendant may be subject to extensive regulations and restrictions when the Government has demonstrated legitimate penological interests in such restrictions. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003); United States v. Workman, 80 F.3d 688, 699 (2d Cir. 1996). In resolving the motion to vacate or modify the SAMs, the Court already determined that the Government has legitimate interests in restricting defendant's conditions of confinement, and the Court incorporates herein its prior findings.

         Second, even Abuhamra recognizes its own narrow application. The Second Circuit acknowledged that “[t]he government's strong and legitimate interest in protecting confidential sources from premature identification is undeniable, ” because “[i]dentification not only compromises the government's ability to use such sources in other investigations, it may expose them to retaliation by those against whom they have cooperated.” Abuhamra, 389 F.3d at 324. I recognize that this government interest is not “absolute, ” and that a criminal defendant's right to a fair trial “may require the government to identify a confidential source who ‘has taken a material part' in the criminal ...

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