Ruling against Chapo's motion to dismiss indictment due to improper extradition

ORDER DENYING MOTION TO DISMISS AS TO JOAQUIN ARCHIVALDO GUZMAN LOERA.

"It is well-settled law in the Second Circuit law that absent protest or objection by the offended sovereign, [a defendant] has no standing to raise the violation of international law" to challenge his indictment. United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015). In fact, one week before defendant filed his motion, the Second Circuit affirmed this legal principle in United States v. Barinas, 865 F.3d 99, 105 (2d Cir. 2017), holding that absent an express provision in an extradition treaty, a defendant has no standing to raise a Rule of Specialty violation. Here, there is no protest or objection by Mexico, nor is there an express provision in the extradition treaty between the United States and Mexico. Therefore, defendant's motion to dismiss the Indictment based on an alleged Rule of Specialty violation is denied. Ordered by Judge Brian M. Cogan on 9/14/2017. "

Memorandum in support of defendant Joaquin Archivaldo Guzmán Loera’s motion to dismiss as time-barred counts ten, eleven, fourteen, and fifteen of the fourth superseding indictment  

The Court should dismiss Counts Ten, Eleven, Fourteen, and Fifteen of the Fourth Superseding Indictment (the “Challenged Counts”) because they are barred by the applicable five-year statute of limitations. 

FACTS 

Five indictments have been filed in this case. The original indictment was filed against Mr. Guzman and five other defendants on July 10, 2009. It contained nine counts, with the last alleged criminal conduct occurring on April 30, 2005. 

 The first superseding indictment (the “S-1 Indictment”) was filed against Mr. Guzman and one other defendant, Ismael Zambada Garcia, on September 25, 2014. It contained 21 counts. 

The second superseding indictment (the “S-2 Indictment”) was filed against defendant Hector Beltran Leyva only. 

The Third Superseding indictment (the “S-3 Indictment”)was filed against Mr. Guzman and Mr. Zambada Garcia on March 9, 2016. 

Finally, the current indictment, the Fourth Superseding Indictment (the “S-4 Indictment”), was filed against Mr. Guzman and Mr. Zambada Garcia on May11, 2016. It includes four substantive counts relevant to this motion: Counts Ten, Eleven, Fourteen, and Fifteen. 

“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” Thus, for the offenses charged in Counts Ten, Eleven, Fourteen, and Fifteen to be timely, they must have been included in an indictment filed within five years of their commission. As shown below, they weren’t. 

A.Count Ten is time-barred. The statute of limitations for the offense charged in Count Ten expired on December 31, 2013. But the offense alleged in Count Ten was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment 

B. Count Eleven. That was nine months too late. Count Eleven is time-barred. Count Eleven is untimely for similar reasons. For the offense alleged in Count Eleven to be timely, it had to be charged no later than February 3, 2011. But the offense alleged in Count 11 was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment 

Count Thirteen. Again, that was too late. 

C. Count Fourteen is time-barred. The January–March 2004 offense alleged in Count Fourteen had to be charged no later than March 31, 2009. But it was not charged—as an independent substantive offense—until the Third Superseding Indictment was filed on March 9, 2016. See S-3 Indictment 

Count Fourteen. Thus, it is untimely. 

Count Fifteen is time-barred. Finally, the January 25, 2004 offense charged in Count Fifteen had to be filed no later than January 25, 2009. But that crime was not charged until the First Superseding Indictment was filed on September 25, 2014. See S-1 Indictment