El Chapo Case: Proposed instructions to jury and breakdown of counts for jury deliberation

Chivis Martinez Borderland Beat

Keegan Hamilton tweeted:

"Just got a sneak preview of the defense's closing argument: A powerpoint presentation flashed on the screens in the courtroom with this picture of El Mayo Zambada. Seems it will be all-in on the "Chapo was a fall guy" theory."

Chivis: I have heard that today Jeffrey Lichtman will close for the defense

Below is information gleaned from court documents regarding proposed jury instructions and verdict sheets.  I had posted the sheets proposed by the government but below are the revised sheets and instruction and objection by the defense of some points which are noted 

Proposed from filing

As you have heard throughout the trial, many of the acts alleged to have taken place occurred outside the United States. Nevertheless, American law provides that the defendant may be prosecuted here in the Eastern District of New York if you find, by a preponderance of the evidence, that the defendant was first brought into the United States in connection with these charges within the Eastern District of New York. It does not matter if the defendant was brought to the United States involuntarily or in the custody of law enforcement officers. The Eastern District of New York encompasses the boroughs of Brooklyn, Queens, and Staten Island, as well as Nassau and Suffolk Counties on Long Island.

Preponderance of the evidence

To prove something by a preponderance of the evidence means to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve this question against the government.

Proof by preponderance of the evidence is a lower standard than proof beyond a reasonable doubt. This is the only time in this case that you may use the preponderance of the evidence standard to find that a legal element has been established.

Introduction

At all times relevant to this Superseding Indictment, unless otherwise indicated:

1. Since the late 1980s, the Mexican Federation (the “Federation”) existed as an organized crime syndicate founded upon longstanding relationships between Mexico’s major drug trafficking kingpins. The Federation functioned as a council with representatives from the respective drug trafficking organizations of its principal leaders, including the defendant JOAQUIN ARCHIVALDO GUZMAN LOERA, also known as “El Chapo.

Two Leaders

In the early 2000s, JOAQUIN ARCHIVALDO GUZMAN LOERA and ISMAEL ZAMBADA GARCIA formed a partnership that led to the transformation of the Federation into the Sinaloa Cartel, which became the largest drug trafficking organization in the world. The Sinaloa Cartel had a structure that included thousands of members, including: (a) the leadership of the Sinaloa Cartel, who were the ultimate decision makers in the organization with respect to its drug trafficking and money laundering activities, as well as its corruption and enforcement activities undertaken to preserve and protect its illegal activities;

(b) security personnel, who protected the leadership of the Sinaloa Cartel and engaged in

 violent acts to further the goals of the organization; (c) plaza bosses, who controlled certain territories for the Sinaloa Cartel and were responsible for transporting drugs through those territories; (d) transporters, such as boat and submarine crews, pilots and truck drivers, who transported drugs from Colombia through Mexico and into the United States; and (e) money launderers, who funneled drug proceeds from the United States back to Mexico. While at times there have been rifts and infighting among the leaders of the Sinaloa Cartel, they generally coordinated their criminal activities, shared and controlled Mexico’s trafficking routes, resolved conflicts over territory, minimized inter-organization violence and ensured the Sinaloa Cartel received official or non-official protection.

Acts of violence

The defendants JOAQUIN ARCHIVALDO GUZMAN LOERA and

ISMAEL ZAMBADA GARCIA and other leaders of the Sinaloa Cartel also employed “sicarios,” or hitmen, who carried out hundreds of acts of violence, including murders, assaults, kidnappings, assassinations and acts of torture at the direction of the defendants. 

The defendants directed and ordered these acts of violence for a variety of reasons, including but not limited to:

(a) Promoting and enhancing the prestige, reputation and position of the Sinaloa Cartel with respect to rival criminal organizations;

(b) Preserving and protecting the power, territory and criminal ventures of the Sinaloa Cartel, including but not limited to the Sinaloa Cartel’s control over drug trafficking routes over the U.S.-Mexico border;

(c) Enforcing discipline amongst its members and associates by punishing disloyalty and failure; and

(d) Protecting members of the Sinaloa Cartel from arrest and prosecution by silencing potential witnesses and retaliating against anyone who provided information or assistance to law enforcement authorities.

COUNTS

COUNT ONE

(Continuing Criminal Enterprise)

Violations One Through Eleven

(International Cocaine Distribution with the Norte del Valle Cartel)

Villa Cifuentes Org and Sinaloa Cartel

Other suppliers

Violations Twenty Through Twenty-Three

(Cocaine and Heroin Distribution)

COUNT TWO

(International Cocaine, Heroin, Methamphetamine and

Marijuana Manufacture and Distribution Conspiracy)

COUNT THREE

(Cocaine Importation Conspiracy)

COUNT FOUR

(Cocaine Distribution Conspiracy)

COUNT FIVE

(International Distribution of Cocaine –

Approximately 450 Kilograms of Cocaine)

COUNT SIX

(International Distribution of Cocaine –

Approximately 12,000 Kilograms of Cocaine)

COUNT SEVEN

(International Distribution of Cocaine –

Approximately 10,500 Kilograms of Cocaine)

COUNT EIGHT

(International Distribution of Cocaine –

Approximately 8,000 Kilograms of Cocaine)

COUNT NINE

(Use of Firearms)

COUNT TEN

(Conspiracy to Launder Narcotics Proceeds)

CRIMINAL FORFEITURE ALLEGATION

AS TO COUNT ONE

(Continuing Criminal Enterprise)

If any of the above-described forfeitable property, as a result of any act

or omission of the defendants:

(a) cannot be located upon the exercise of due diligence;

(b) has been transferred or sold to, or deposited with, a third party;

(c) has been placed beyond the jurisdiction of the court;

(d) has been substantially diminished in value; or

(e) has been commingled with other property which cannot be

divided without difficulty;

CRIMINAL FORFEITURE ALLEGATION

AS TO COUNTS TWO THROUGH EIGHT

(Cocaine, Heroin, Methamphetamine and/or Marijuana Trafficking)

CRIMINAL FORFEITURE ALLEGATION AS TO COUNT NINE

(Use of Firearms in Furtherance of Drug Trafficking)

CRIMINAL FORFEITURE ALLEGATION

AS TO COUNT TEN

(Money Laundering)

Defense objections to proposed instructions-

Mr. Guzmán further submits the following comments or additions:

a. Request No. 7 – Mr. Guzmán requests that the first full paragraph on page 16 read

as follows:

You may, of course, find that the existence of an agreement between two or

more persons to disobey or violate the law has been established by direct proof.

b. Request No. 8 – Mr. Guzmán requests that the fourth paragraph on page 19 read

as follows:

Thus, if you unanimously find beyond a reasonable doubt that the defendant

was a member of a criminal conspiracy charged, then ….

c. Request No. 9 – Mr. Guzmán requests that the last paragraph on page 22 read as

follows:

Your decision as to whether the defendant conspired to commit a particular

unlawful act must be unanimous. If you determine that the defendant is guilty

beyond a reasonable doubt ….

d. Request No. 10 – Mr. Guzmán requests that the first paragraph on page 25 read as

follows:

The government must prove beyond a reasonable doubt that the defendant

conspired to import cocaine into the United States. Your decision as to whether

the defendant conspired import cocaine into the United States must be

unanimous.

e. Request No. 11 – Mr. Guzmán requests that the last paragraph on page 27 read as

follows:

If you unanimously determine that the defendant is guilty beyond a reasonable

doubt ….

f. Request No. 12 - Mr. Guzmán requests that the last paragraph on page 29 read as

follows:

If you unanimously determine that the defendant is guilty beyond a reasonable

doubt of any of the crimes charged in Counts Five through Nine….

g. Request No. 13 - Mr. Guzmán requests that fourth and fifth paragraphs on page

31 be combined to read as follows:

With respect to violation twenty-nine, murder conspiracy, the violation charges

that the defendant, while engaged in one or more of the narcotics conspiracies as

alleged in Counts Two through Four, did knowingly and intentionally conspire to

kill or cause the intentional killing of one or more persons, (to wit: persons who

posed a threat to the Sinaloa Cartel) and such killing did result.

In order to prove this violation against the defendant, the government must prove

beyond a reasonable doubt.

Read in full letter from defense below

A part of the letter—Murder---

Second, that the defendant agreed with one or more persons to kill individuals or

groups of persons, who posed a threat to the Sinaloa cartel, specifically [NOTE:

the government will provide the list of individuals and groups of persons at the

end of trial] and such killing results. The government need not prove that the

 individual or group of persons whom the defendant agreed to kill was in fact

killed, only that there was an unlawful agreement to do so.  [strike-through indicates

 the defense wants this removed]

The third element the government must prove beyond a reasonable doubt is

that such killing occurred because of, and as part of, defendant’s engaging in

the continuing criminal enterprise (or the offense of e.g., a conspiracy to

distribute controlled substances).

To prove this element, the government must establish that the defendant’s

agreement with one or more other people to counsel, command, induce,

procure, or cause the killing of the victim(s) was related in some meaningful

way to the activity charged in either Counts Two, Three or Four.

You may find that the conspiracy to murder was related to the drug

conspiracy in Counts Two, Three or Four if you find that there was a

connection between the defendant’s role in the conspiracy to murder and his

or her participation in the activity charged in Counts Two, Three or Four.

For example, a defendant engaging in drug distribution who conspires to kill

his or her spouse in a purely non-drug-related domestic dispute would not

satisfy this element. The government must prove that at least one of the

defendant’s purposes or motives in conspiring to kill the victim(s) was

related to the drug distribution activities charged in Counts Two, Three or

Four. It not necessary for the government to prove that this was the sole

purpose, or even the primary purpose, for the conspiracy. What the

government must prove is that there was some substantive connection

between the defendant’s role in the drug distribution activity and his role in

the conspiracy to murder, even if there were other motives or purposes for

the conspiracy to murder.

DEFENSE

Chapo Case Balarezo letter ... by on Scribd

GOVERNMENT

Chapo Trial Gov Objection t... by on Scribd

Chapo Case Gov Proposed Sup... by on Scribd