Affirming the conviction of Joaquín “El Chapo” Guzmán, the U.S. Court of Appeals for the Second Circuit on Tuesday rejected claims that a Vice News story painting a behind-the-scenes portrait of the drug lord’s reckoning exposed “breathtaking jury misconduct.”
Guzmán ran his multibillion-dollar empire of illicit drugs across half a dozen nations with a fleet of boats, planes, and submarines, authorities estimate.
Then, after two escapes from Mexican prison, Guzmán’s reign came crashing down with his extradition to the United States in January 2017.
“Popular Boogeymen”
Some two years later July 2019, a jury convicted the Sinaloa cartel leader of a continuing criminal enterprise consisting of large-scale narcotics violations and a murder conspiracy. Guzmán was also convicted of drug trafficking conspiracies, unlawful use of a firearm, and a money laundering conspiracy.
Those convictions led U.S. District Judge Brian Cogan to deal him multiple life sentences and $12 billion in forfeiture. Unless he successfully hatches another escape, Guzmán will die in U.S. federal prison, which does not allow for the possibility of parole.
During oral arguments last October, Guzmán’s attorney Marc Fernich told a three-judge panel of the Second Circuit that he was not requesting sympathy: “I am not asking you to play a violin for the guy.”
But Fernich argued that U.S. criminal justice principles demanded a new trial, noting the temptation to cut corners in cases of “popular boogeymen” like John Gotti, Al Capone, and Manuel Noriega. The wide-ranging appeal, alleging 10 different grounds to attack the conviction, failed on every point.
The lawyer particularly hammered revelations from the 2019 VICE News article, “Inside El Chapo’s jury: A juror speaks for first time about convicting the kingpin.”
Quoting an anonymous juror, the article depicted the “El Chapo” jury as one that routinely followed media coverage in alleged defiance of the court’s instructions. The juror claimed to be aware of reporting that Guzmán allegedly raped girls as young as 13 years old, reportedly calling “the youngest of the girls his ‘vitamins’ because he believed that sexual activity with young girls gave him ‘life.’”
Despite the Vice report, Judge Cogan did not grant an inquiry into the matter.
“Matchless Notoriety”
U.S. Circuit Judges Jon O. Newman, Gerard Lynch and Michael Park unanimously approved of Cogan’s denial.
“Courts should be especially ‘hesitant to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences,'” the circuit found, citing Second Circuit precedent from 1983.
“Here, the unsworn, uncorroborated statements that one unidentified juror made to a magazine reporter do not constitute the ‘clear, strong, substantial and incontrovertible evidence,’ […] requiring any juror inquiry beyond that already made,” Newman, a Jimmy Carter appointee, wrote in a 44-page ruling.
As one of the most high-profile narcotics cases in memory, Guzmán’s trial was known to have captured vast media coverage.
“On two separate occasions during the trial, the District Court canvassed the jury and spoke with jurors individually about news articles they had seen,” the opinion continues. “The first was after publication of an article reporting an affair by Guzman’s trial attorney. The second was after extensive media publicity concerning allegations of Guzman drugging and sexually abusing underage women. In the presence of counsel for both parties, Judge Cogan spoke to the two jurors who admitted to exposure to extra-record information and concluded that these jurors remained impartial.”
The panel also disagreed that the story showed the juror lied.
“None of the allegations in the Vice News article shows that any juror was not impartial, harbored bias against Guzmán, or was otherwise unfit to serve,” the opinion states. “There was no structural error that deprived Guzman of ‘‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.’’
In a statement, Fernich said that he respected the ruling but claimed “grave” misconduct continues to be “swept under the rug.”
“While respecting the Court’s ruling, we’re disappointed that substantial allegations of grave jury misconduct continue to be swept under the rug and left wholly unexamined in a case of historic proportion — all, it appears, because of the defendant’s matchless notoriety,” Fernich said.
Other than supposed jury misconduct, Fernich alleged multiple constitutional violations, errors in evidentiary rulings, a faulty jury charge and other infirmities.
“Major Hurdles”
Beyond its immediate impact of denying a new trial for the drug lord, the three-judge ruling could have ripples in other high-profile cases in the Second Circuit’s purview—a jurisdiction that includes federal courts in New York, Vermont and Connecticut.
Late last year, a federal jury convicted Jeffrey Epstein accomplice Ghislaine Maxwell of sex trafficking and other offenses, a verdict that could be placed in turmoil by interviews with a juror known as Scotty David.
The juror, once anonymized only as Juror No. 50, told multiple news outlets survived childhood sexual abuse and those experiences informed his decision to convict Maxwell.
“This is a verdict for all of the victims,” David declared to the U.K.’s Independent.
Maxwell’s legal team seized upon statements like those to request a new trial, reportedly indicating that David did not disclose his personal history in a sworn juror questionnaire. David has now retained counsel to answer for his statements, answered under penalty of perjury.
Mitchell Epner, a former federal prosecutor who led intake on sex-trafficking cases in the District of New Jersey in 2003 and 2004, told Law&Crime that the El Chapo ruling shows the “major hurdles” Maxwell has to obtaining a new trial.
“Having said that, there are some clear distinctions between her situation and that in the El Chapo case,” noted Epner, who is of counsel with the firm Rottenberg Lipman Rich PC.
Unlike in El Chapo’s case, Epner said, there appears to be a clear question of an incorrectly answered voir dire question.
“There’s a question whether it was inaccurately answered on purpose, meaning that the juror told a lie in order to try to get on the jury or accidentally,” he said. “With El Chapo, the supposed lie was that the jurors were not paying attention to the instruction to avoid media reports about the El Chapo case. So that’s a very different situation.”
In the El Chapo ruling, Judge Newman noted that the account of “an uncorroborated, anonymous single juror” was at issue, and David spoke to several news outlets. His account was seemingly corroborated by another anonymous juror speaking to the New York Times. The British press appears to have found another third juror who may have been a survivor of childhood sexual abuse.
To date, Maxwell’s legal team only has complained in filings about David, the only juror accused in court documents of giving inaccurate answers in a voir dire.
“So for all of those reasons, I think that the El Chapo decision does not preclude Ghislaine Maxwell from being able to get an evidentiary hearing or a new trial,” Epner said. “It simply shows that she’s going to have to meet a very high standard.”
If she fails to obtain a new trial, Maxwell will be sentenced on June 28.
Read the ruling, below:
(Image via Alfredo EstrellaA/AFP/Getty Images)
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