Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 1 of 11 PageID #: 2536

UNITED STATES DISTRICT COURT

UNITED STATES, :
:
v. :
: Criminal No. 09-0466(BMC)
JOAQUÍN GUZMÁN LOERA, : Trial Date: 9/5/18
:
Defendant. :

DEFENDANT’S MOTION FOR CHANGE OF VENUE

DEFENDANT Joaquin Guzmán (“Guzmán”), by and through undersigned

counsel, and pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and Federal Rule of Criminal Procedure 21, respectfully requests that this

Honorable Court grant this Motion for Change of Venue to the Southern District of New York or

to the Eastern District of Pennsylvania. The parties have conferred on a briefing schedule

regarding this motion. The government agrees to respond by May 15, 2018 and the defense

will reply by May 22, 2018.

FACTS

On May 11, 2016, the government filed a fourth superseding indictment charging

Mr. Guzmán with seventeen narcotics trafficking and related counts. Upon his extradition from

Mexico on January 19, 2017, and his arrival in the United States, the government transported Mr.

Guzmán to the Metropolitan Correctional Center (“MCC”) in Manhattan within the Southern

District of New York (“SDNY”), where he has been housed ever since under Special

Administrative Measures. Apparently, the government determined that the MCC was the only

facility that could securely house Mr. Guzmán.

1
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 2 of 11 PageID #: 2537

The government transported Mr. Guzmán to the MCC in a multi-vehicle

motorcade that included several marked police cars, black Suburban SUVs, an ambulance and an

emergency response vehicle. The MCC was flanked by countless law enforcement officers

wearing tactical vests displaying the insignias of the Drug Enforcement Agency, Homeland

Security, the Marshals Service, the New York State Police, and others. Many of the law

enforcement officers were outfitted in military style gear and carried side arms as well as assault-

style weapons.1 The media extensively covered Mr. Guzmán’s arrival at the MCC.

The government alleges that Mr. Guzmán engaged in a drug distribution

conspiracy affecting numerous districts around the country. As a government press release

states, the case against Mr. Guzmán bears no particularized relationship to the Eastern District of

New York.2 In fact, there are indictments pending against Mr. Guzmán in the Southern District

of California, the Northern District of Illinois, the Western District of Texas, the District of New

Hampshire, the Southern District of Florida and the Southern District of New York. The

Mexican government granted Mr. Guzmán’s extradition only to the Southern District of

California and the Western District of Texas. As the Court is aware, however, after the

government of Mexico apparently waived the Rule of Specialty, the United States government

chose to bring him to the Eastern District of New York to face the indictment filed in this court.3

1
https://www.facebook.com/ABCNews/videos/10155281956278812/
2
See, e.g, Department of Justice Press Release 17-104, https://www.justice.gov/opa/pr/joaquin-el-chapo-Guzmán-
loera-faces-charges-new-york-leading-continuing-criminal-enterprise (“As one of the principal leaders of the
Sinaloa Cartel, Guzmán Loera allegedly also oversaw the cocaine, heroin, methamphetamine, and marijuana
smuggling activities by the Sinaloa Cartel to wholesale distributors in Atlanta, Chicago, Miami, New York, as well
as in various locations in Arizona, Los Angeles and elsewhere.”).
3
It is not clear why the government chose the Eastern District. Some journalists have speculated that it was the
result of then-Attorney General Loretta Lynch’s familiarity with the District. See, e.g., “Drug lord 'El Chapo' likely
to be prosecuted in Brooklyn,” Chicago Sun-Times, June 12, 2016.
http://www.chicagotribune.com/news/nationworld/ct-el-chapo-trial-20160612-story.html

2
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 3 of 11 PageID #: 2538

Thus, given the government’s self-authorized, virtually limitless choice of venue,

it was in a position to select any jurisdiction where Mr. Guzmán was charged and where it could

house him in a facility with the security capabilities the government believed necessary.

Instead, it chose to try him in the EDNY and then claimed a need to house him at the MCC

located within the SDNY. Because of that choice made by the government, each time Mr.

Guzmán is transported to the EDNY courthouse from the MCC, the government assembles

scores of United States Marshals and other law enforcement officers and escorts Mr. Guzmán in

a multi-vehicle motorcade of marked and unmarked police cars, armored cars, and other

emergency response vehicles.4 The government then proceeds to order the closing of the

Brooklyn Bridge while the motorcade crosses from the MCC in Manhattan to the EDNY

courthouse in Brooklyn. The process is repeated when Mr. Guzmán is taken back to the MCC.

Mr. Guzmán has now made seven court appearances, each directly exposing countless of New

Yorkers and potential jurors to this spectacle and inconveniencing thousands more by the traffic

disruptions created.5

ARGUMENT

A criminal defendant is guaranteed a fair trial by Fifth and Sixth Amendments to

the United States Constitution. U.S. Const. amends. V, VI. Embodied in these guarantees is

the principle that “one accused of a crime is entitled to have his guilt or innocence determined

solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion,

4
See, e.g., https://www.reuters.com/video/2017/02/03/el-chapo-heads-to-ny-court?videoId=371055677,
https://www.youtube.com/watch?v=X4M8ekzqYWo. See also Exhibit A.
5
In addition to the press coverage of the events to which potential jurors have been exposed, the New York state
government estimated in 2015 that there are over 100,000 vehicle crossings of the Brooklyn Bridge every day.
http://www.nyc.gov/html/dot/downloads/pdf/nyc-bridge-traffic-report-2015.pdf.

3
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 4 of 11 PageID #: 2539

indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v.

Kentucky, 436 U.S. 478, 485 (1978). On several occasions, the Supreme Court has addressed

whether security measures taken to control a criminal defendant, which are visible to a jury, can

erode a defendant’s presumption of innocence. For example, in Deck v. Missouri, the Court

noted that shackling a defendant during the sentencing phase of a death penalty trial “inevitably

implies to a jury, as a matter of common sense, that court authorities consider the offender a

danger to the community.” Deck v. Missouri, 544 U.S. 622, 633 (2005). As a result, the Court

has explained that such measures should be subjected to “close judicial scrutiny” and should be

upheld only where there exists an “essential state policy,” requiring the particular practice.

Estelle v. Williams, 425 U.S. 501, 503-504 (1976)).

In this case, the unprecedented, highly visible, and disruptive security measures

taken by the government every time it transports Mr. Guzmán, are likely to be seen or heard

about by innumerable potential and seated jurors and run the precise risk the Supreme Court

warned against: that Mr. Guzmán, while presumed innocent, is already considered by authorities

to be an extreme danger to the community. Moreover, there is no essential state policy

requiring the government to try Mr. Guzmán in a jurisdiction requiring transportation by armored

motorcade and closing of a major city thoroughfare in order for him to attend trial.

The government could easily try Mr. Guzmán in the SDNY, which is immediately

adjacent to and connected to the MCC. The proximity between the MCC and SDNY

courthouses would allow for the secure transfer of Mr. Guzmán to and from court without the

current prejudicial spectacle of a multi-vehicle armed convoy and the closing of the Brooklyn

Bridge. Similarly, the case can be transferred to the Eastern District of Pennsylvania, where the

federal detention center there previously created a unit capable of housing inmates held under

4
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 5 of 11 PageID #: 2540

SAMs and where Mr. Guzmán could be transported to the courthouse via a tunnel connecting it

to the detention facility.6 Thus, a remedy for the highly prejudicial security measures

associated with transporting Mr. Guzmán could be achieved by transferring venue to the SDNY

or to the EDPA. The inconvenience to the Court and the government caused by transferring

venue to the SDNY is minimal given the close proximity of the SDNY and EDNY courthouses.

The Constitution provides, for the protection of the criminal defendant, that

criminal trials “shall be held in the State where the ... Crimes ... have been committed.” U.S.

Const. art. III, § 2, cl. 3; amend. VI. These provisions are in place, not to provide the

government with any right or discretion to choose a venue where it feels it is most likely to

succeed at trial, but to protect criminal defendants from being hailed to trial in remote locations

removed from the locations of the charged offenses. See United States v. Cores, 356 U.S. 405,

407 (1958) (The provision for trial in the vicinity of the crime is a safeguard against the

unfairness and hardship involved when an accused is prosecuted in a remote place.). As a

result, under the Federal Rules, venue may only be changed upon the defendant’s motion, as it is

his right to waive. Federal Rule of Criminal Procedure 21(a) provides that the court is required

to transfer venue “if the court is satisfied that so great a prejudice against the defendant exists in

the transferring district that the defendant cannot obtain a fair and impartial trial there.” Fed. R.

Crim. Pro. 21(a).

Motions under this section are generally raised in the event of a saturation of

negative publicity in a particular district. In this case, however, media attention to the case in

general is pervasive in all districts. Thus, this motion does not challenge venue on those

grounds. This motion challenges venue on the distinct ground that the venue itself is creating

6
See United States v. Savage, 07-CR-0550 (E.D. Pa.).

5
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 6 of 11 PageID #: 2541

unnecessary, localized prejudice by requiring the spectacle of Mr. Guzmán’s transportation. As

discussed above, the extent of this security display portends irrevocable and unavoidable

prejudice. As a result, Mr. Guzmán respectfully requests that this Court consider the same

principles underlying a more traditional media-based claim under Rule 21 when considering Mr.

Guzmán’s request.

For example, in United States v. Maldonado–Rivera, the court stated the factors

this Court should consider when evaluating a motion for change of venue include under Rule

21(a),

the extent to which the government is responsible for generating the publicity, the
extent to which the publicity focuses on the crime rather than on the individual
defendants charged with it, and other factors reflecting on the likely effect of the
publicity on the ability of potential jurors in the district to hear the evidence
impartially.

922 F.2d 934, 967 (2d Cir.1990) (internal citation omitted). In this case, the government is

completely responsible for generating the publicity at issue. The government unilaterally chose

the district where it preferred to try Mr. Guzmán and it unilaterally chose to house him under

restrictions it could not accommodate in that district. Second, the security display is entirely

focused on the identity of the defendant. It is not akin to dispassionate news coverage of a

proceeding – it is akin to driving a sign, illuminated by sirens and flanked by police vehicles,

marked with government insignia, that says “dangerous man inside.” Finally, the number of

potential jurors that have been and will continue to be exposed to this spectacle is unquantifiable.

Mr. Guzmán contends that under these circumstances, Rule 21(a) requires a change of venue to a

jurisdiction where Mr. Guzmán can be housed according to the government’s demands and

transported to trial in a manner that preserves his constitutional rights to a fair trial.

6
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 7 of 11 PageID #: 2542

Federal Rule of Criminal Procedure 21(b) gives this Court discretion to grant the

defendant’s motion for a change of venue “for the convenience of the parties, any victim, and the

witnesses, and in the interest of justice.” Fed. R. Crim. Pro. 21(b). These factors weigh in favor

of granting a change of venue. Surely the convenience of the defendant would be better served

by being tried in proximity to where he is housed. It would seem also, that avoiding the

unnecessary diversion of law enforcement resources to this transportation detail would be more

convenient for the government.7 And, the interests of justice plainly weigh against transporting

the defendant in this public, bridge-closing, riot-gear-wearing, phalanx of cars and officers – a

process which will grow only more frequent and visible as trial approaches. The undersigned

are aware of no criminal defendant that has been regularly transferred to court with this level of

theatrics and disruption.

In resolving a motion under 21(b) this Court is to consider a non-exhaustive list of factors

including:

(1) the location of the defendant; (2) the location of possible witnesses; (3) the
location of events likely to be at issue; (4) the location of relevant documents; (5)
the potential for disruption of the defendant's business if transfer is denied; (6)
expenses to be incurred by the parties if transfer is denied; (7) the location of
counsel; (8) the relative accessibility of the place of trial; (9) docket conditions in
each district; and (10) any other special circumstances that might bear on the
desirability of transfer. No one of these factors is dispositive, and a balance
should be struck in determining which are of the greatest importance in the case
before the court.

Maldonado–Rivera, 922 F.2d at 966 (internal citations omitted).

Here, the first factor – the location of the defendant – weighs heavily in favor of

changing venue. Mr. Guzmán is currently held in a location remote from the courthouse in

7
Although the interest of the public is not expressly noted as a factor, if the government is truly concerned about a
security threat associated with transporting Mr. Guzmán, it should be the first to agree that minimizing that transport
would be the better course.

7
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 8 of 11 PageID #: 2543

which he is to be tried, requiring the employment of a dramatically prejudicial motorcade to

transport him to and from court. This factor favors transferring him to a location where this is

not necessary. The second, third and fourth factors concerning the location of witnesses,

events, and documents are not implicated here because, by the government’s own admissions,

they are national and international in scope. Most if not all events occurred in foreign

locations; witnesses will be travelling from other places; and documents are already in the

government’s possession. A transfer of venue of a few or a hundred miles would not be

contraindicated on these grounds. The fifth and sixth factors do not apply. Regarding the

seventh factor, counsel for the government are already from New York or Miami, thus a transfer

to Manhattan would post little inconvenience. A transfer to Philadelphia would create modest

inconvenience for government counsel from New York but is balanced with slightly less

inconvenience for government counsel form Florida. The undersigned would not be

inconvenienced by either move. Both Manhattan and Philadelphia are easily accessible, thus

the suggested locations themselves do not factor against transfer. If the Court traveled with the

case to Manhattan, the issue of docket control would be unaffected. It is not clear how moving

the case to Philadelphia would affect this factor.

The government will surely claim that voir dire can eliminate jurors who have

been exposed to this spectacle or who cannot guarantee that they can be fair despite having been

exposed to it. The government’s argument must fail for two reasons. First, given the extent of

the disruption caused by this extraordinary security detail involved in transferring Mr. Guzmán

to and from court, it will be impossible to guarantee that a seated juror will not be exposed to it,

putting the fairness of the trial in jeopardy while it is already underway, and putting untold

taxpayer dollars at risk when a mistrial must be granted as a result of that juror’s exposure to this

8
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 9 of 11 PageID #: 2544

scene on the Brooklyn Bridge. Second, attempting to redress this problem solely through voir

dire risks disproportionately eliminating jurors from areas closer to the city – who will more

likely be exposed to the motorcade. For example, according to the most recent census data, the

population of Kings County, the most likely to witness the security display, is 35% African

American. On the other hand, Suffolk County, the least likely to be exposed to it, is 8.5%

Black.8 Thus, failing to transfer venue will risk disproportionately eliminating African American

jurors, in violation of the defendant’s Fifth and Fourteenth Amendment rights.

Finally, and perhaps most importantly, the government has very little legal basis

on which to oppose this Motion. Choice of venue is not a right or privilege that is afforded to

the government. Fair trial guarantees include a venue provision to protect the defendant. The

government is certainly able and obliged to bring a case in the jurisdiction where the crime is

charged. In this case, however, the government has alleged that the crime touches essentially

all jurisdictions in this country, and has specifically alleged that venue is proper in the Southern

District of New York by returning an indictment there.9 The government has no right to insist

that a case remain in a district where the defendant will be subject to prejudicial security

measures of the government’s creation, for no other reason than it believes it enjoys litigation

advantage in that venue.

This Court should conclude that the government’s unexplained desire to try Mr.

Guzmán in the Eastern District of New York, as opposed to one of the other numerous

jurisdictions in which he could have been hailed to trial, is not an essential state policy justifying

the exposure of potential and likely seated jurors to the prejudicial security measures associated

8
See www.census.gov.
9
See United States v. Guzmán, 12-CR-439.

9
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 10 of 11 PageID #: 2545

with transporting Mr. Guzmán from the jurisdiction where the government chooses to house him.

As such, this Court should transfer venue to the Southern District of New York or to the Eastern

District of Pennsylvania as mandated or permitted by Federal Rule of Criminal Procedure 21.

Failure to do so will result in a deprivation of Mr. Guzmán’s Fifth, Sixth, and Fourteenth

Amendment rights.

WHEREFORE, Mr. Guzmán respectfully requests that this Court transfer venue

to the Southern District of New York or to the Eastern District of Pennsylvania.

Dated: Washington, DC
May 6, 2018 Respectfully submitted,

BALAREZO LAW

/s/
By: ____________________________________
A. Eduardo Balarezo, Esq.
EDNY Bar # AB7088
400 Seventh Street, NW
Suite 306
Washington, DC 20004
Tel: (202) 639-0999
Fax: (202) 639-0899
E-mail: aeb@balarezolaw.com

PURPURA & PURPURA

/s/
By: ____________________________________
William B. Purpura, Esq.
8 East Mulberry Street
Baltimore, MD 21202
Tel: ((410) 727-8550
Fax: (410) 576-9351
E-mail: wpurpura@purpuralaw.com

Counsel for Defendant Joaquín Guzmán Loera

10
Case 1:09-cr-00466-BMC-RLM Document 226 Filed 05/06/18 Page 11 of 11 PageID #: 2546

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 6th day of May 2018, I caused a true and

correct copy of the foregoing Defendant’s Motion to Transfer Venue to be delivered via

Electronic Case Filing to the Parties in this case

/s/
______________________________
A. Eduardo Balarezo, Esq.

11