Escolar Documentos
Profissional Documentos
Cultura Documentos
UNITED STATES :
:
v. :
: Criminal No. 09-0466(BMC)
JOAQUÍN GUZMÁN LOERA, :
:
Defendant. :
counsel, respectfully submits this Motion to Continue Trial, and states as follows:
to stand trial in this District even though the United States government had sought his extradition
to face charges only in Texas and California. From that date until approximately October 3,
2017, the Federal Defenders of New York represented Mr. Guzmán. Undersigned counsel
entered his appearance in this matter on September 3, 2017.1 The Court granted co-counsel
William B. Purpura’s Motion to Appear Pro Hac Vice on November 21, 2017. Prior to either
counsel’s entry into the case, the Court had scheduled trial for April 2018.
productions that had been made as of that date from a government-designated vendor. Those
productions contained tens of thousands of pages2 and thousands of recordings. Since that date,
the defense purchased three additional discovery productions from the vendor, believed to
1
The Court allowed a 30-day “handover” period.
2
The government has produced everything digitally, meaning that the defense has had to spend time and money to
print the material. Additionally, a large number of the documents produced by the government are not searchable –
1
double the amount of previously-produced discovery. The government has represented to the
Court that is has now produced “more than 290,000 pages of documents and hundreds of
representation and review of the case file, it was apparent that no meaningful progress had been
made on discovery review, investigation or other trial preparation.3 In effect, Mr. Guzmán’s trial
the contents of the production. For example, on November 7, 2017, the government described
See D.E. 165. These broad descriptions encompassing thousands of pages is useless for
cataloguing and reviewing purposes. The defense has requested from the government a copy of
their discovery index to assist in reviewing the material; however, the government has refused to
provide the index. Thus, the defense has to review the documents and recordings one by one just
to know what the discovery contains, to catalogue it and to be able to review it in any reasonable
manner in order to prepare for trial. It is anticipated that the Jencks, Giglio and deferred R. 16
production will consist of several more thousand pages and recordings that the defense will have
meaning additional time must be wasted in order to tag and document every document. The government could have
easily had its vendor make the documents searchable but for some reason it chose not to do so.
3
Counsel understands that because the FDNY anticipated that Mr. Guzmán would retain private counsel for trial,
the FDNY focused on litigating conditions of confinement under the SAMs.
2
4. Due to the SAMs imposed by the government and approved by the Court,
and notwithstanding the “accommodations” made by the government, the physical aspects of
reviewing discovery are abysmal. The government and the MCC have set up one specific legal
visiting room for Mr. Guzmán’s use. That room is approximately five feet by ten feet, divided in
half by a cement wall and a mesh/Plexiglas window. See Exh. 1. On the attorney side of the
room there is cement block measuring approximately two feet by two feet containing a metal
drawer that slides into the inmate side of the visiting room. The drawer is meant to facilitate the
passing of documents back and forth and was installed because the Court rejected contact visits
for Mr. Guzmán to connect his government issued laptop to the monitor so as to allow both sides
to view discovery on that one monitor. The monitor is approximately 15 inches across and of
low resolution, making it almost impossible for Mr. Guzmán to view anything displayed on it
from his side of the visiting room. As the defense pointed out to the government/MCC, this set
up allowed Mr. Guzmán to control the reviewing of discovery, and since he is not facile with
computers, the process of reviewing any one document took an unreasonable period of time
because Mr. Guzmán had to insert and remove any one of a number of CDs to find a particular
document. Even though the parties have reached an agreement for a modification of this set up,4
reviewing discovery with Mr. Guzmán is extremely cumbersome and time consuming. For
example, the “legal visiting room” does not even contain any table space for the defense to
spread out papers or even write on – defense team members must write on their laps.
4
The parties have reached an agreement whereby the defense can use Mr. Guzmán’s computer the attorney side of
the visiting room and show him documents on a metal-enclosed computer on his side of the visiting room.
3
Additionally, the room is so small that at most only two defense team members can be in the
room at the same time and even then, there is barely any room to move.
requiring that counsel be in possession of protected discovery at all times. The government has
consented to this request. The issue has been fully briefed since December 15, 2018; however,
as of the date of this filing, the Court has not ruled upon the request and the defense is effectively
prevented from having its paralegals regularly review the protected discovery with Mr. Guzman.
As the Court is aware, neither undersigned counsel nor co-counsel are resident in New York
where the defense paralegals and Mr. Guzmán are located. Without the requested modification,
the defense would only be able to have Mr. Guzmán review discovery when counsel are
personally visiting Mr. Guzman. Logistically and professionally, it is not possible for counsel to
visit Mr. Guzmán on a daily basis to review discovery. The defense paralegals are able to do so
anticipated to be extensive and that January 16, 2017, “is probably the earliest possible that we
are going to be able to accomplish everything.” Tr. 8/14/17 H’rng at 7:1-3; 20-22. Additionally,
at the November 8, 2017 status hearing, the Court informed the defense that it had been “told by
the security officers involved that it could take up to six months to get” undersigned counsel
cleared. Tr. 11/8/17 H’rng at 8:18 – 9:4. The expected CIPA litigation alone will probably
5
The defense presently has two full-time Spanish speaking paralegals meeting daily with Mr. Guzmán and at the
same time attempting to review and catalogue the nearly 300,000 pages and thousands of recordings produced thus
4
8. Finally, due to Mr. Guzmán’s conditions of confinement and his inability
to speak with specific family members to request that counsel’s fees be paid6, the defense is
insufficiently funded at this time to be properly prepared for a trial less than four months away.
December 6, 2017. On December 21, 2017, after prodding, the government finally informed
counsel that it would not oppose a continuance to June 2018. Counsel informed the government
that such a short continuance would not be of help given the amount of work that remains to be
done on this case in order to get it trial ready. Counsel has inquired of the government how
much time it needed to respond to this Motion. The government has not responded.
Okay, let me do this. Let’s set a trial date of April 16. I recognize that it is
somewhat aspirational, but the parties should understand that I’m going to start
pushing them harder and harder to get through discovery and set up any motion
schedule ahead of that so let’s give it the old college try and try to make this date.
If that has to slip, it’ll slip, but I want to have it on the calendar so no one gets
their calendar filled up with something else.
Counsel is therefore respectfully requesting that the Court let the current trial date
slip and grant a relatively short continuance of trial until August or September 2018. Because of
the present conditions of his confinement, Mr. Guzmán is resistant to a continuance of the trial;
however, counsel believes that the requested continuance is necessary and sufficient to allow the
defense to adequately prepare for trial and to satisfy Mr. Guzmán’s Sixth Amendment right to
counsel.
far.
6
Although Mr. Guzmán has had monitored telephonic conversations, the SAMS prohibit him from passing
messages to anyone, in this case to anyone whom may be able to pay legal fees.
5
10. A hearing on this Motion is requested.
WHEREFORE, for the foregoing reasons and any other that may become
apparent to the Court, Mr. Guzmán respectfully requests that this Motion be GRANTED.
Dated: Washington, DC
December 24, 2017 Respectfully submitted,
BALAREZO LAW
/s/
By: ____________________________________
A. Eduardo Balarezo, Esq.
D.C. Bar # 462659
400 Fifth Street, NW
Suite 300
Washington, DC 20001
Tel: (202) 639-0999 / Fax: (202) 639-0899
E-mail: aeb@balarezolaw.com
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of December 2017, I caused a true
and correct copy of the foregoing Defendant’s Motion to Continue Trial to be delivered via
/s/
______________________________
A. Eduardo Balarezo