U.S.Government wants Chapo in Chains

by Chivis Martinez for Borderland Beat

The U.S. government is really messing with El Chapo. 

Prosecutors are sticking it to him in every way possible, and using every legal maneuver at their disposal, even when it is far from necessary and borders on the ridiculous. 

I should say, from the beginning of this case, I did not much care about  the outcome.  I didn’t care about Joaquin El Chapo Guzmán, or his legal fate.  In fact, if ever there was a case that a drug trafficker's life sentence should end behind bars, when his dead cold body is carried out in a pine box, then this is that case.  That scenario would be poetic justice to many narco watchers.

But then something greater than him became relevant.  The U.S. government began at “go” treating him as though he is the second coming of Khalid Sheikh Mohammed. A terrorist of the highest.   It has been an education to this reporter that rights could be denied a person,  who according to our constitution is innocent until proven guilty. The 14th amendment to the US Constitution guarantees this to every person, immigrants included, “equal protection under the law.”

Irrespective of the fact that he has been a well behaved, compliant  prisoner, with no infractions during his stay in “MCC” the federal jail in Manhattan, 10 South, he  has been stripped of every right and privilege afforded to each and every prisoner in our great nation, with the notable exception of terrorists.

Which is why terrorists are typically  moved to Guantanamo Bay.

The U.S. base on Guantanamo Bay is in a foreign territory and as such the U.S. Justice Department says that it is beyond the jurisdiction of any United States Court. Therefore, the government is not obligated to give the same legal rights and process as would apply in the American justice system.  Habeas Corpus is the big one, so they can be held for indefinitely without being charged with a crime.

"Chapo the Super Capo"

Guzmán has been denied  rights given to others, including the worse of the worst offenders in our society.  He is not even allowed phone visits, letters, from his wife, family or anyone.  Seems harsh, since phone calls and letters are monitored.  No press contact.
He is not allowed contact visits with his attorneys.  That is huge, in preparation for his defense.  Perusing evidence, and videos with his defense team is imperative one would think.

Any reasonable person understands that due to Guzmán’ history in Mexico of escape and persuasion certain precautions must be made, and it is acknowledged that a part of his escape plans were facilitated by those who visited him.   But, his treatment by the government goes far beyond and seemingly tampers with his rights.  It makes one  wonder how strong of a case the government truly has. 

This week the government dug even deeper making new assertions of why they want Guzmán’ shackled when meeting with his attorneys.  

Read further knowing this is not a joke.

It is the contention of the government that Guzmán  may have attorney visits, but that he be shackled.  The reasoning is twofold, one is that the peanut sized capo  may harm himself or his attorney.  The other reason is outlined below:

“One of the more specious claims raised in the Sept. 12 Decl. is that the BOP would need to relocate the “fire suppression systems.” Id. Presumably this relates to the government’s preposterous claim that Mr. Guzman could rip the sprinkler system piping from the ceiling during the contact counsel visit and cause a flood.”

Yup. ‘Chapo the Super Capo’ is going to leap , high and rip out the sprinkler system causing a flood in the prison whereby he can escape.

Noteworthy; it is the very same sprinkler system is installed in the interview booth currently used by Guzmán.

Ridiculous.

Familiar chant

As Guzmán attempted to settle into his new home in MCC 10 South, an all too familiar mantra  began coming from his corner.  The onslaught of prison condition complaints, immediately surfaced from Guzmán, his attorneys and his wife.  The complaints culminated with his declaration that he is being treated worse than any other prisoner being held in the United States “BOP.”

Guzmán is the proverbial boy who cried wolf.  Seeing his barrage of complaints this go around, gives one a feeling of tedious familiarity. His incarcerations in Mexico were famously punctuated by his prison condition complaints.  Through his spokesmen, spearheaded by his attorneys and wife, he issued grievances against his treatment; his contention was his conditions were permeated by human rights violations. Sleep deprivation, denied extra blanket in freezing temperature, portable light stations outside his cell, interrupting his sleep every hour for a bed check, the playing of loud music, were factors he blamed on his onset of hypertension, his wife gave interviews expressing her concern that her husband was on the verge of death because of his prison conditions.

Guzmán, became the first ever to successfully escape the maximum security prison Altiplano No.1. 

As far as Mexican prisons go, Altiplano is comparatively a nice place to be incarcerated.  You can learn more about the prison by using this link. Link here 

Subsequent to his recapture he was transferred to Juarez prison No,9 where his attorneys and wife began yet another a campaign for his return to Altiplano.  Among the complaints included were his loss of hair, they say due to stress and the onset of hypertension.  He filed with the court for permission to return to Altiplano.  He was granted an order by the court to return to the prison he initially pleaded to be removed from. 

As fate was realized, Guzmán never returned to Altiplano, but explains his reaction when awoken in his Juárez prison cell for his extradition to the U.S. “Altiplano? He asked.  “No. Estados Unidos” he was told.  That was in January, 2017.

Within two weeks a familiar monotony raised its head, when Guzmán began filing complaints with the court, along with his wife and attorneys becoming his mouthpiece in condemning the prison conditions he found himself subjected to. 

Déjà vu.

I know I shook my head, groaning and wondering why he bothers.  Certainly conditions  in the United States must be a huge step  up from Mexico, and his human rights should survive unhampered with as the world watches the prosecution  of the World’s Most Powerful Drug trafficker.

Then I learned about “SAMS” ["Special Administrative Measures"] and CMU’s used in the federal prison system.  A highly controversial issue among many civil and human rights groups.  The special conditions under which Guzmán is incarcerated falls under SAMS.

“pursuant to 28 C.F.R. § 501.3, which became effective on May 17, 1996, the Attorney General may authorize the Director of the Bureau of Prisons (BOP) to implement "special administrative measures" upon written notification to BOP "that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons." The regulation provides that such notification to BOP may be provided by the Attorney General, "or, at the Attorney General's direction by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community." These special administrative measures ordinarily may be imposed "may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism."

Only 49 persons are currently housed under SAMS.  Mostly terrorists both pre and post trial.  Guzmán  is the sole drug trafficking defendant.

Judge Brian Cogan stated, “I understand it’s unusual, but the public history of the defendant is also unusual.“  and that sums up the judges lackluster, inadequate, commentary on why Guzmán is  being subjected to SAMS.   

On Monday the attorneys who have represented Guzmán since his extradition was sent notice.  Guzmán hired a private, Eduardo Balarezo, and as of this week the previous attorneys are off the case.  However, the government wanted the outgoing attorneys to be advised that under no circumstances can they visit Guzmán.

From letter sent Monday:

“As you are no longer counsel of record, you also will not be permitted to conduct legal visits with the defendant, nor are you permitted to visit him under any other provision of the Special Administrative Measures [SAMS] under which the defendant is currently held.”

Granted he probably won’t have the need to meet with his former attorneys, however that decision should be his right.  And in but 49 cases that would be his right.

If one take into account all the restrictions and denials given Guzmán, it almost seems like there is an attempt to tamper with his mental health.  Because no one can take the claims of the government seriously, that they really fear he will escape.  If security is that weak, denying isn’t the answer, strengthening is.

I have come to terms with it all, I realize that it is not  the plight of Guzmán that is tugging at my heart strings, it is our system of law and order, jurisprudence, equality and our constitution.  

Compromise in any fashion is compromise to the greatest system in the world.  We may not like Guzmán, for crimes we think he has committed, but surely we can separate that from protecting the integrity of our judicial system, the court and trial system used in our nation to administer law.  It must be protected, and strongly defended, no matter who is at the center of the issue.

I have seen the list of evidence against Guzmán, and it is a strongest I have ever seen.  Tape recordings, documents, ledgers, video, endless list of cooperatives.  Why isn’t that enough for the government?  Why tamper with defendants’ rights, which may be grounds for appeal?  It makes no sense.  It comes across silly and pathetic.  And may backfire.

In Mexico media some are saying the attorneys are satisfied with Judge Mann’s recommendation to have Guzmán shackled.  Borderland Beat  reached out to lead attorney Eduardo Balarezo  to deny or confirm, he says “We’re just trying to get contact visits. I’m going to object to the shackles.”

On September 15 Chapo’s  attorney letter states:

It states that the government’s position is there is no way to accommodate contact atty visits. 

From letter:

One of the more specious claims raised in the Sept. 12 Decl. is that the BOP would need to relocate the “fire suppression systems.” Id. Presumably this relates to the government’s preposterous claim that Mr. Guzman could rip the sprinkler system piping from the ceiling during the contact counsel visit and cause a flood. As noted in the Schneider Declaration, the thick metal pipes in question run along the ceiling some 6 ½ to 7 feet off the ground. (Schneider Declaration at ¶8.) And as Your Honor’s clerk pointed out during the visit, that same sprinkler system is currently accessible to Mr. Guzman in his interview booth. (Id.)

We are not in a position to provide evidentiary estimates regarding the cost of renovations.

However, we note that the government has not provided the Court any documentation in support of its exorbitant estimate: no request for proposal; no breakdown of costs; nor contractor’s estimate.

The one perhaps justifiable expense, replacing the outside door to the visiting booth with a secure door, hardly seems like a costly or time-consuming renovation. The MCC has made that renovation to the 3rd floor attorney visit area to permit non-SAMs SHU inmates to visit in the regular visit area.

Having paid for this work in the past, the BOP surely could have included this estimate in the declaration. Further, the BOP cannot justify the impermissible burden on Mr. Guzman’s Fifth Amendment right to access to the courts and his Sixth Amendment right to participate in his defense on the grounds that providing contact legal visits would be costly. See Detainees of Brooklyn House of Det. for Men v. Malcolm, 520 F.2d 392, 399 (2d Cir. 1975) ( “Inadequate resources of finances can never be an excuse for depriving detainees of their constitutional rights.”).

Among the more troubling statements in the Sept. 12 Decl. is that, only now, almost nine months after Mr. Guzman arrived in the District has BOP “begun to investigate” modifications to the existing counsel area on 10 South to accommodate contact legal visits.( See Sept. 12 Decl. at ¶7.

This is despite the fact that the SAMs themselves expressly allow for contact visits, defense counsel initially raised this issue with the Court in April, and Your Honor alerted the government in May that defendants housed in 10 South will undoubtedly, like Mr. Guzman, be involved in “very complex cases” and the issue of contact visits is, and will be, a “recurring issue.” (See Dkt. No. 95, Exhibit B, at 27.) One can only conclude that the BOP has purposefully delayed making necessary modifications in an attempt to render the issue moot. Had the BOP addressed the structural inadequacies in the facility over 10 years ago, when Magistrate Judge Levy found that the noncontact attorney policy infringed upon the right to counsel and was an “exaggerated response to the government's security concerns” there would be no need to litigate the issue now. See Basciano v. Martinez, 2007 WL 2119908, at 8 (E.D.N.Y. May 25, 2007), report and recommendation adopted subnom. Basciano v. Lindsay, 530 F. Supp. 2d 435 (E.D.N.Y. 2008).

Judge Mann’s order of September 27th :

REPORT AND RECOMMENDATIONS as to Joaquin Archivaldo Guzman Loera re [64] defendant's request for attorney contact visits. The Court respectfully recommends that the government be ordered to allow defendant to hold contact visits with his attorneys as soon as reasonably practicable, subject to reasonable security measures, including, at the option of the BOP, shackling defendant. Objections to R/R due by 10/11/2017. Ordered by Chief Mag. Judge Roanne L. Mann on 9/27/2017. (Proujansky, Josh)

Letter from Government to defense attorney regarding SAMS of 10.3.17

   El Chapo Case 10.3.17 Gov Resp Re Sams Letter (1) by Chivis Martinez on Scribd

Letter: Reply from defense attorney to Government 

   El Chapo Case: 10.3.17 Balarezo Reply to Gov Resp Re Sams by Chivis Martinez on Scribd