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Judge in El Chapo case limits release of info, orders appointment of ‘firewall’ attorney

Will decide who gets to see secret documents

March 21, 2017 By Mary Frost Brooklyn Daily Eagle
El Chapo. AP file photo by Eduardo Verdugo
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On Monday, the judge overseeing the case of alleged drug lord Joaquin “El Chapo” Guzman Loera limited the release of information related to the case and ordered prosecutors to appoint a “firewall” attorney as a go-between.

Documents and other materials that the government intends to use in its case against Guzman are so sensitive that the U.S. sought a protective order strictly limiting who can see them. Among other measures, the government asked to have the power to pre-approve foreign nationals before they became members of Guzman’s defense team.

Guzman’s attorneys objected to several of the limitations the government requested, however, because they might allow prosecutors to gain unfair insight into their defense strategies.

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U.S. District Court Judge Brian Cogan ordered the government to appoint the neutral firewall attorney to prevent the defendant’s privileged information and strategies from being revealed to prosecutors. He also made rulings that would keep protected information from becoming public, including witness testimony.

By law, the prosecutors must share discovery documents with defendants. Guzman’s status as the alleged head of the world’s most powerful drug trafficking cartel, however, means prosecutors want to limit the information they share, which could include classified information, to a select few.

To gain access to classified material, Guzman’s attorneys, expert witnesses and consultants need security clearance, which is given on a “need to know” basis.

“‘Need to know’ would normally be determined by the assistant U.S. attorneys prosecuting the case, but permitting this determination by the prosecution allows the prosecution to know what experts and consultants (and case strategy and proposed testimony) the defendant is seeking to present,” Cogan wrote in his decision.

“In cases like those, a firewall attorney … protects the integrity of the attorney-client privilege and defendant’s Sixth Amendment rights,” Cogan wrote.

Given the complexity of the case, Cogan says the government must appoint an assistant U.S. attorney from a state with a similar case against Guzman — for example, the Southern District of California or the Western District of Texas, which have pending indictments.

Or, if the government would like to keep the firewall in-house, “the government may remove an Eastern District of New York assistant currently on the prosecution team, designate that assistant as firewall counsel, and take all precautions necessary to wall that assistant off from the prosecution team,” Cogan continued.

Cogan gave prosecutors 14 days to submit the name and address of the proposed firewall attorney.

Guzman, 59, is being held at a high-security federal jail in Manhattan, but being tried in federal court in Brooklyn. Guzman escaped twice from prison in Mexico.

He is being held under strict 23-hour lockdown and receives a police motorcade, including choppers, when he’s being transported from Manhattan to a Brooklyn courtroom.

Key legal points in Cogan’s decision

Cogan addressed five key points that Guzman’s defense team had objected to.

In the first, Cogan agreed with the government that information related to sensitive law enforcement techniques should be officially designated as “Protected Material.”

“Public disclosure of these techniques would significantly undermine the government’s ability to use these techniques in the future, thus significantly impeding ongoing and future investigations,” he wrote.

In the second point, Cogan ruled that the government had made its case regarding the need for prior approval of foreign nationals joining the defense counsel’s team.

“Given defendant’s alleged history of using individuals, including professional individuals, to further his alleged enterprise, the risk presented by permitting foreign nationals, whether attorneys, investigators, or others who could be members or associates of the Sinaloa Cartel, to join the defense counsel’s team without appropriate vetting is significant,” Cogan wrote. The firewall attorney would make these approval decisions.

Thirdly, Cogan ruled that the government had also established the need for prior approval of individuals who are not part of the defense counsel team but who are seeking to view the protected material.

Witnesses that Guzman’s attorneys may interview present the greatest concern because they are persons likely to be associates of Guzman or alleged members of the Sinaloa Cartel or other drug-trafficking enterprises.

“The risk of such individuals gaining access to cooperating witness identifying information or information regarding law enforcement techniques is too great,” Cogan wrote. “Therefore, prior approval is necessary, and the vetting is to be conducted through the firewall assistant U.S. attorney that the government will designate.”

In the fourth point, Cogan ruled that the government need not scour the internet on a continuing basis so that protected material that has become public be re-designated as public, especially considering the volume of the material involved in this case.

Finally, Cogan ruled that the government made a good case to stop the defendant from disseminating what is called “§ 3500 material,” even where it has been made publicly available.

This material includes statements made by a government witness or prospective government witness, along with the police notes, memoranda, letters or other material the witness relied upon as part of their testimony.

“It connects the testifying witness with this case, suggesting that he is a potential witness or cooperator, thus raising the most serious security concerns,” Cogan wrote.

 


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