El Chapo's Options (Other Than Amparo)

Besides fighting extradition through requests for writs of Amparo and Appeals, which could take one to three years, what other options does Joaquin "El Chapo" Guzman have for avoiding life in a U.S. prison?

His lawyer says they have a lawyer in the U.S. and they are interested in resolving all of his charges (and not by going into witness protection.) Via Google translate:

Before the endorsement of the Government of Mexico for his extradition to the United States, Joaquín El Chapo Guzmán, leader of the Sinaloa Cartel, could plead guilty in Exchange for some benefit, said his lawyer José Refugio Rodríguez, in an interview with EL UNIVERSAL.

The defense of Guzman Loera said that they have not contemplated that will welcome witnesses protected in that country programme, but yes looking for a settlement with the US authorities that require it.


"Joaquín Guzmán said that not shuns the Justice of the United States, you are interested in arranging their legal status beyond and for that we have a lawyer and will seek the way of reaching an agreement, as other people have done," explained the legal representative of the capo.

"Never has referred to the possibility of going as a witness, what they were told was pleading guilty to the charges that are against him;" his plan is to seek a settlement in Exchange for pleading guilty, that already discusses the defense in the United States," [revealed Jose Refugio Rodríguez.]

How would this work and what benefit would there be to El Chapo of pleading guilty in the U.S. to so many Indictments?

First, as to how it could work: While the Ministry of Foreign Affairs has authorized extradition only to the Southern District of California and the Western District of Texas, we don't know what the Diplomatic Note or agreements say. Mexico can waive the rule of specialty and agree that the U.S. can try El Chapo in all other districts where he is charged, including, for example, the Eastern and Southern Districts of New York, Northern District of Illinois, Southern District of Florida, and New Hampshire. (The case in Arizona was dismissed against him. There could also be indictments elsewhere still under seal.)

Multiple news articles quote unnamed sources as saying Brooklyn is likely to be the first stop for El Chapo. Maybe they are right. DOJ just obtained a new Superseding Indictment against him and Ismael Zambada-Garcia in the Eastern District of New York that drops the extra-territorial murder counts some view as "thorny." They have at least a few cooperators in the case to testify against El Chapo.

So depending on what Mexico agrees to in the Diplomatic Note accompanying the extradition documents, El Chapo could be prosecuted, tried and sentenced in districts other than San Diego and West Texas.

As to benefits: Maybe, since El Chapo still owes Mexico many years on the sentence he was serving when he escaped in 2001, and has numerous new pending cases in Mexico, he can get Mexico to invoke a protocol to Article 15 of the treaty proposed in 1997 while Bill Clinton was President, called "Delayed and Temporary Surrender." You can read it here. It went into effect around 2001.

The original treaty, passed in 1978, is available here. Article 15 back then referred only to "Delayed Surrender", not "Temporary Surrender":

Delayed Surrender

The requested Party, after granting the extradition, may defer the surrender of the person sought when that person is being proceeded against or is serving a sentence in the territory of the requested Party for a different offense, until the conclusion of the proceeding or the full execution of the punishment that has been imposed.

The 1997 Addendum by the Clinton White House, added two paragraphs to Article 15, the potentially relevant one here is Paragraph 2:

(2) The Requested Party, after granting an extradition request made in accordance with this Treaty, may temporarily surrender a person who has been convicted and sentenced in the Requested Party, in order that the person sought may be prosecuted in the Requesting Party before or during service of sentence in the Requested Party. The person so surrendered shall be kept in custody in the Requesting Party, and shall be returned to the Requested Party after conclusion of the proceedings, in accordance with conditions to be determined by agreement of the Parties for that purpose.

The Addendum was agreed to because Mexico was refusing to extradite Mexican nationals subject to sentences in Mexico. The Addendum allowed Mexico to send these people to the U.S. for prosecution, but at the end of the trial or imposition of sentence, it could have them returned to Mexico to finish their sentences, before serving any sentence in the U.S.

The note to Congress accompanying the Addendum said:

Unlike prisoner transfer, a temporary surrender does not relocate a prisoner for purposes of serving a sentence, but only for purposes of trial, after which he or she is to be returned to serve sentences imposed in the respective Parties. At the same time, the
Protocol does not preclude the subsequent operation of the Prisoner Transfer Treaty with respect to a person who has been temporarily
surrendered, tried, and convicted.

So conceivably, El Chapo could plead guilty to all the charges in all the cases in the U.S., but never serve a day of any of the imposed sentences here. Once all the sentences have been imposed, he'd be sent back to Mexico to finish serving his sentence there. So he'd never go to Supermax, because Supermax doesn't take pretrial detainees, only sentenced individuals. He wouldn't even have to physically appear in each district. Via Rule 20, he could appear in one district and have the charges in the other districts transferred there. (Jesus Zambada-Garcia ("El Rey"), the brother of Sinaloa co-leader Ismael Zambada-Garcia and uncle of Jesus Vicente Zambada-Niebla, who was indicted in the Brooklyn case with Ismael and El Chapo, was also indicted in the District of Columbia, along with his brother and nephew. He had the Brooklyn charge transferred to D.C. under Rule 20, where he pleaded guilty. (Court document here. It is signed off on by Loretta Lynch, who was then U.S. Attorney for Brooklyn.) According to the court dockets, he hasn't yet been sentenced.

Why would Mexico agree to this? One possibility, and it's just speculation (as is all of this) would be to foreclose El Chapo from running his mouth in the U.S. about corruption in the Mexican Government and military in order to get a lesser sentence. A second reason would be to preserve its right to go after El Chapo. The Mexican Government was quite angry about the cooperation deal made with Jesus Vicente Zambada-Niebla. Not only didn't the U.S. share the fruits of Vicente's cooperation with Mexico, his plea agreement states he and his immediate family could spend the rest of their lives in the U.S. after his prison term is up. (Like his uncle, he also hasn't yet been sentenced.)

I don't know if the U.S. would have to agree to the temporary surrender. Seems to me it would have no choice if Mexico insisted it was the only way it would agree to extradite El Chapo.

But the U.S. could turn this restriction into an economic benefit by making it part of the agreement that El Chapo has to agree to pay some of the forfeiture amounts -- in Brooklyn alone, the Government is reportedly seeking $14 billion dollars from him. Without an agreement, the U.S. would have to find and seize his assets from wherever in the world they are, a very tedious endeavor. Mexico hasn't seemed too interested in going after El Chapo's assets (although just today someone in the Mexico legislature griped about this saying his assets must remain in Mexico.) And the U.S. has made similar deals before, such as providing non-prosecution promises in exchange for forfeiting assets. Example: The U.S. agreed to accept $2.1 billion from the Rodriguez-Orejuela brothers, leaders of the Cali cartel, and not charge a host of their family members with crimes. It also agreed to remove the family members and their businesses from the Sanctions list. From DOJ's 2006 announcement:

28 family members of the Rodriguez-Orejuelas entered into an agreement with the United States today. Under the terms of that separate agreement, the family members agreed to forfeit their right, title, and interest in all Rodriguez-Orejuela business entities and other assets worldwide, as well as all assets of any nature in the United States. Once they have taken all steps to relinquish any claims to these properties, the family members will be eligible to be removed from OFAC’s list of persons designated as Specially Designated Narcotics Traffickers. They will be required to continue to assist the U.S. and Colombian governments in any ongoing or later related forfeiture actions. The U.S. government has agreed not to prosecute six of the relatives who, although not involved in narcotics trafficking, could be prosecuted for related crimes.

The U.S. followed through after receiving the $2.1 billion, removing 308 individuals and entities from the Specially Designated Nationals and Blocked Persons list (SDN List).

I may be missing something, but it seems to me that a "Temporary Surrender" pursuant to the Extradition Treaty could be El Chapo's best option for avoiding life in prison at a U.S. Supermax prison. I also think it's in our best interest because it would save us the cost of incarcerating El Chapo. In 2013, the cost of imprisoning an inmate at ADX Florence was $216. a day. That comes out to about $77,000 year. El Chapo is only 60. If he lives until 80, we'd be paying $1.5 million just to warehouse him. Wouldn't it be better to have him pay us, via forefeited assets, rather than us paying to incarcerate him?

Before anyone can represent El Chapo in the U.S., they need to get approval for the payment of legal fees from OFAC, since he's on the designated kingpin list. At least one lawyer may already have been approved, as his lawyer in Mexico said their U.S. lawyer has been working on an agreement. Imagine if El Chapo doesn't agree to resolve all these cases. He'd need lawyers in every one of the districts where he's charged. The money OFAC authorizes him to spend on lawyers will be enormous, and will lessen the funds available for forfeiture. Not to mention the cost of prosecuting him will be tens of millions. Many of these witnesses are in witness protection or serving sentences and will have to be moved around if called to testify, which will be a big security headache as well as expensive in terms of manpower if not dollars. And conviction is not a certainty, given these witnesses are singing for their supper and carry a lot of baggage. It makes much more sense to me to allow El Chapo to plead guilty and be sentenced in the U.S., pay some forfeitures, and then send him back home to Mexico to finish serving the 20 year sentence he escaped from in 2001 and face trial there on new charges.

What if El Chapo is sent back to Mexico, after pleading guilty and being sentenced here, and he escapes again? Will Mexico be too tired of him, or too concerned with newer and more violent kingpins, to chase him down yet again? Maybe, but so what? At least we'd have the money he willingly forfeited. And it's not like he's ever going to be able to live in peace without looking over his shoulder. Extracting every possible pound of flesh from El Chapo is probably in no one's best interest.

< Thursday Open Thread | Sunday Night Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort: