UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

UNITED STATES :
:
v. :
: Criminal No. 09-0466(BMC)
JOAQUÍN GUZMÁN LOERA, :
:
Defendant. :

DEFENDANT’S MOTION TO CONTINUE TRIAL

DEFENDANT Joaquín Guzmán Loera (“Guzman”), by and through undersigned

counsel, respectfully submits this Motion to Continue Trial, and states as follows:

1. On January 19, 2017, the government of Mexico extradited Mr. Guzmán

to stand trial in this District even though the United States government had sought his extradition

to face charges only in Texas and California. From that date until approximately October 3,

2017, the Federal Defenders of New York represented Mr. Guzmán. Undersigned counsel

entered his appearance in this matter on September 3, 2017.1 The Court granted co-counsel

William B. Purpura’s Motion to Appear Pro Hac Vice on November 21, 2017. Prior to either

counsel’s entry into the case, the Court had scheduled trial for April 2018.

2. Upon counsel’s entry of appearance, counsel purchased eight discovery

productions that had been made as of that date from a government-designated vendor. Those

productions contained tens of thousands of pages2 and thousands of recordings. Since that date,

the defense purchased three additional discovery productions from the vendor, believed to

1
The Court allowed a 30-day “handover” period.
2
The government has produced everything digitally, meaning that the defense has had to spend time and money to
print the material. Additionally, a large number of the documents produced by the government are not searchable –

1
double the amount of previously-produced discovery. The government has represented to the

Court that is has now produced “more than 290,000 pages of documents and hundreds of

thousands of recorded conversations.” D.E. 168 at 2. Upon counsel’s assumption of

representation and review of the case file, it was apparent that no meaningful progress had been

made on discovery review, investigation or other trial preparation.3 In effect, Mr. Guzmán’s trial

preparation began on September 3, 2017.

3. Each discovery production is accompanied by a letter generally describing

the contents of the production. For example, on November 7, 2017, the government described

part of the production as:

See D.E. 165. These broad descriptions encompassing thousands of pages is useless for

cataloguing and reviewing purposes. The defense has requested from the government a copy of

their discovery index to assist in reviewing the material; however, the government has refused to

provide the index. Thus, the defense has to review the documents and recordings one by one just

to know what the discovery contains, to catalogue it and to be able to review it in any reasonable

manner in order to prepare for trial. It is anticipated that the Jencks, Giglio and deferred R. 16

production will consist of several more thousand pages and recordings that the defense will have

to review largely while the trial is ongoing.

meaning additional time must be wasted in order to tag and document every document. The government could have
easily had its vendor make the documents searchable but for some reason it chose not to do so.
3
Counsel understands that because the FDNY anticipated that Mr. Guzmán would retain private counsel for trial,
the FDNY focused on litigating conditions of confinement under the SAMs.

2
 4. Due to the SAMs imposed by the government and approved by the Court,

and notwithstanding the “accommodations” made by the government, the physical aspects of

reviewing discovery are abysmal. The government and the MCC have set up one specific legal

visiting room for Mr. Guzmán’s use. That room is approximately five feet by ten feet, divided in

half by a cement wall and a mesh/Plexiglas window. See Exh. 1. On the attorney side of the

room there is cement block measuring approximately two feet by two feet containing a metal

drawer that slides into the inmate side of the visiting room. The drawer is meant to facilitate the

passing of documents back and forth and was installed because the Court rejected contact visits

with Mr. Guzmán.

5. The government/MCC also set up a computer screen on the attorney side

for Mr. Guzmán to connect his government issued laptop to the monitor so as to allow both sides

to view discovery on that one monitor. The monitor is approximately 15 inches across and of

low resolution, making it almost impossible for Mr. Guzmán to view anything displayed on it

from his side of the visiting room. As the defense pointed out to the government/MCC, this set

up allowed Mr. Guzmán to control the reviewing of discovery, and since he is not facile with

computers, the process of reviewing any one document took an unreasonable period of time

because Mr. Guzmán had to insert and remove any one of a number of CDs to find a particular

document. Even though the parties have reached an agreement for a modification of this set up,4

reviewing discovery with Mr. Guzmán is extremely cumbersome and time consuming. For

example, the “legal visiting room” does not even contain any table space for the defense to

spread out papers or even write on – defense team members must write on their laps.

4
The parties have reached an agreement whereby the defense can use Mr. Guzmán’s computer the attorney side of
the visiting room and show him documents on a metal-enclosed computer on his side of the visiting room.

3
Additionally, the room is so small that at most only two defense team members can be in the

room at the same time and even then, there is barely any room to move.

6. The defense has requested a modification of the Court’s Protective Order

requiring that counsel be in possession of protected discovery at all times. The government has

consented to this request. The issue has been fully briefed since December 15, 2018; however,

as of the date of this filing, the Court has not ruled upon the request and the defense is effectively

prevented from having its paralegals regularly review the protected discovery with Mr. Guzman.

As the Court is aware, neither undersigned counsel nor co-counsel are resident in New York

where the defense paralegals and Mr. Guzmán are located. Without the requested modification,

the defense would only be able to have Mr. Guzmán review discovery when counsel are

personally visiting Mr. Guzman. Logistically and professionally, it is not possible for counsel to

visit Mr. Guzmán on a daily basis to review discovery. The defense paralegals are able to do so

but are currently prohibited from doing so by the Protective Order.5

7. The government has represented to the Court that CIPA litigation is

anticipated to be extensive and that January 16, 2017, “is probably the earliest possible that we

are going to be able to accomplish everything.” Tr. 8/14/17 H’rng at 7:1-3; 20-22. Additionally,

at the November 8, 2017 status hearing, the Court informed the defense that it had been “told by

the security officers involved that it could take up to six months to get” undersigned counsel

cleared. Tr. 11/8/17 H’rng at 8:18 – 9:4. The expected CIPA litigation alone will probably

prevent trial from beginning in April 2018.

5
The defense presently has two full-time Spanish speaking paralegals meeting daily with Mr. Guzmán and at the
same time attempting to review and catalogue the nearly 300,000 pages and thousands of recordings produced thus

4
 8. Finally, due to Mr. Guzmán’s conditions of confinement and his inability

to speak with specific family members to request that counsel’s fees be paid6, the defense is

insufficiently funded at this time to be properly prepared for a trial less than four months away.

9. The defense raised the issue of a continuance with the government on

December 6, 2017. On December 21, 2017, after prodding, the government finally informed

counsel that it would not oppose a continuance to June 2018. Counsel informed the government

that such a short continuance would not be of help given the amount of work that remains to be

done on this case in order to get it trial ready. Counsel has inquired of the government how

much time it needed to respond to this Motion. The government has not responded.

10. At the May 5, 2017 status hearing, the Court stated:

Okay, let me do this. Let’s set a trial date of April 16. I recognize that it is
somewhat aspirational, but the parties should understand that I’m going to start
pushing them harder and harder to get through discovery and set up any motion
schedule ahead of that so let’s give it the old college try and try to make this date.
If that has to slip, it’ll slip, but I want to have it on the calendar so no one gets
their calendar filled up with something else.

Tr. 5/5/17 H’rng at 33:16 -33:23.

Counsel is therefore respectfully requesting that the Court let the current trial date

slip and grant a relatively short continuance of trial until August or September 2018. Because of

the present conditions of his confinement, Mr. Guzmán is resistant to a continuance of the trial;

however, counsel believes that the requested continuance is necessary and sufficient to allow the

defense to adequately prepare for trial and to satisfy Mr. Guzmán’s Sixth Amendment right to

counsel.

far.
6
Although Mr. Guzmán has had monitored telephonic conversations, the SAMS prohibit him from passing
messages to anyone, in this case to anyone whom may be able to pay legal fees.

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 10. A hearing on this Motion is requested.

WHEREFORE, for the foregoing reasons and any other that may become

apparent to the Court, Mr. Guzmán respectfully requests that this Motion be GRANTED.

Dated: Washington, DC
December 24, 2017 Respectfully submitted,

BALAREZO LAW

/s/
By: ____________________________________
A. Eduardo Balarezo, Esq.
D.C. Bar # 462659
400 Fifth Street, NW
Suite 300
Washington, DC 20001
Tel: (202) 639-0999 / Fax: (202) 639-0899
E-mail: aeb@balarezolaw.com

Counsel for Defendant Joaquín Guzmán Loera

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 24th day of December 2017, I caused a true

and correct copy of the foregoing Defendant’s Motion to Continue Trial to be delivered via

Electronic Case Filing to the parties in this case.

/s/
______________________________
A. Eduardo Balarezo