Case 1:09-cr-00466-BMC-RLM Document 490 Filed 12/07/18 Page 1 of 4 PageID #: 6370

U.S. Department of Justice

United States Attorney

Eastern District of New York
SDD/MKM:MJJ 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

December 7, 2018

By ECF

The Honorable Brian M. Cogan

United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera

Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

The government respectfully submits this letter in connection with its motion
for sanctions (the “Motion”) against defense counsel for violating
the Special Administrative Measures (the “SAMs”) and facilitating violations of courthouse
rules governing the use of cellular telephones (“Courthouse Rules”). For the reasons set
forth in the Motion and below, the government requests that the Court issue an order
prohibiting from possessing cellular telephones in the courthouse for the
1
remainder of the trial. Notably, has already agreed to curtail cellular
telephone privileges. (See
¶ 32.)

In addition, the government notifies the Court and the defense that it intends to
seek authorization, pursuant to 28 C.F.R. § 501(c), to modify the SAMs to prohibit
from meeting or communicating with the defendant outside the presence and hearing
of designated defense counsel.

The government seeks no further relief from the Court at this time, and intends
to withdraw, without prejudice, the additional requests for sanctions set forth in the Motion
upon acknowledgment of

1
A proposed order is attached hereto.
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II. Discussion

Entry of the proposed order and modification of the SAMs are necessary in
light of s prior violations of the SAMs and Courthouse Rules, and to prevent
future violations of the same.

The Motion sets forth in detail evidence establishing a substantial likelihood

that violated the SAMs and Courthouse Rules—specifically, by providing a
cellular telephone to the defendant’s wife, Emma Coronel Aispuro, inside the courthouse,
and then visiting the defendant in the attorney-client visitation room with another cellular
telephone to facilitate unauthorized contact between the two. 2

affidavit does little, if anything, to call this conclusion into

question. To the contrary, while co-counsel unequivocally affirm in their declarations that
“[they] have never violated the Special Administrative Measures,” (see, e.g.,
¶ 3), 3 does not. Instead, only claims never to have “deliberately” or
4
“intentionally” violated the SAMs. The implication is clear both from what does not
say, and from the evidence detailed in the Motion: violated the SAMs.

Similarly, while co-counsel unequivocally affirm in their declarations that

“[they] have not provided any telephone to any prohibited person for use in the courthouse,”
(see, e.g., ), does not. Instead, claims
only that id not provide a telephone to Ms. Coronel “in the courtroom.”
¶ 22.) affidavit is silent when it comes to whether provided Ms. Coronel a telephone
elsewhere in the courthouse. The implication is once again clear: gave Ms.
Coronel a telephone in the courthouse.

The arguments attempts to advance through affidavit are

similarly unpersuasive. claims, for example, that it would have been
“impossib[le]” to communicate with Ms. Coronel from the attorney-client visitation area
because “there is no cellular service [there].” (Aff. ¶ 19.) is wrong. Before the Motion

3
See also ¶ 3 (“I have never violated the Special Administrative Measures imposed
on Mr. Guzman.”); ¶ 3 (“I have never violated the Special Administrative Measures.”);
¶ 3 (“I have never violated the Special Administrative Measures.”).
4
See, e.g., ¶ 19 (“I have never intentionally violated, or otherwise intentionally
engaged in conduct with the intent to violate, the SAMs”); ¶ 18 (the government claims that “I
deliberately violated the SAMs in this case . . . . It is respectfully submitted that these claims are simply
untrue”); ¶ 16 (“there is absolutely nothing that I would ever intentionally do to jeopardize this learning
opportunity”); ¶ 16 (“nor would I ever do anything intentional to in any way taint or prejudice this
criminal proceeding”) (all emphases added).

2
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was filed, the United States Marshals Service tested the signal strength of Verizon and Sprint
cellular telephones in the visitation area. These tests revealed that Sprint received service
and Verizon did not. While highlights that co-counsel’s Verizon telephone lacked
service in the visitation area (see Aff. ¶ 19), affidavit is silent as to the fact that actually
matters—whether any of the three telephones regularly brought into the courthouse
received service there.

claims that did not facilitate communication between the

defendant and his wife are incomplete and ambiguous. asserts, for example, that
never “sen[t] text messages” to Ms. Coronel from the visitation room, but stops short of
unequivocally declaring that never facilitated telephonic communication of any sort.
And while denies “conveying any messages” to or from the defendant, it is
unclear from the face of affidavit, and conduct, whether understands that the
SAMs prohibitions cover direct and indirect electronic, written and oral communications.

Whether intentional or inadvertent, violations of the SAMs present serious and

unacceptable security risks. See 18 C.F.R. § 501(C). And under the circumstances here,
violations of Courthouse Rules present substantial security risks as well. The
government submits that the measures proposed in this letter—specifically, entry of the
proposed order and modification of the SAMs—represent the least restrictive means of
preventing future violations of the SAMs and Courthouse Rules by .
has agreed not to bring telephones into the courthouse (see Aff. ¶ 32), and so entry
of the Proposed Order will make compliance mandatory, under penalty of contempt,
without imposing any burden not already accepted by

III. Conclusion

For the reasons set forth in the Motion and above, the government respectfully
requests that the Court issue the proposed order attached to this letter.

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In addition, partial sealing of this letter may be appropriate because of the

nature of the matters discussed above. Although the government does not believe this
submission should be entirely sealed, it is filing it substantially under seal to allow defense
counsel to articulate its view as to sealing so that the Court may make the “specific, on the
record findings” necessary to support sealing. Lugosch v. Pyramid Co., 435 F.3d 110, 120
(2d. Cir. 2006).

Respectfully submitted,

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF

Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN

UNITED STATES ATTORNEY
Southern District of Florida

cc: Clerk of Court (BMC) (via ECF)

Defense Counsel (via Email)

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Case 1:09-cr-00466-BMC-RLM Document 490-1 Filed 12/07/18 Page 1 of 1 PageID #: 6374

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------X

UNITED STATES OF AMERICA [PROPOSED] ORDER

- against - 09 CR 466 (S-4) (BMC)

JOAQUIN ARCHIVALDO GUZMAN LOERA,

Defendant.

---------------------------------X

IT IS HEREBY ORDERED that defense counsel , Esq., is

prohibited from possessing any cellular telephone within the courthouse (except in the first

floor lobby before the security check point) during the pendency of the trial in the above-

captioned matter.

Dated: Brooklyn, New York

December____, 2018

__________________________________
THE HONORABLE BRIAN M. COGAN
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF NEW YORK