Date: February 11, 2019

El Chapo Trial: If Chapo is acquitted-can he be tried elsewhere? What about double jeopardy?

Chivis Martinez Borderland Beat-TY Un Vato my go to legal mind

From Today: The jury has asked if they must decide unanimously when considering the “violations”  sub-counts in Count 1 of the indictment:
Count 1: (Continuing Criminal Enterprise) It would appear they are split in some way with no movement. 



I asked my most trusted legal mind the “what if?” Acquittal, double jeopardy or another trial elsewhere

His answer

There is no getting around double jeopardy if Chapo is acquitted. The only way to avoid double jeopardy is to charge him with a different crime that has different facts or different elements. One way is to charge him in state courts because state laws often require proof of different elements to convict for the same actions that are violations of federal law. To obtain federal jurisdiction over a defendant, a federal prosecutor must show that (1) the defendant violated federal law, or, (2) the defendant crossed state lines in the commission of a crime defined under state law.

For example, we were able to convict a fuel distributor in federal court when we proved he loaded his trucks in New Mexico and delivered gas in AZ or TX to avoid NM fuel tax, a violation of state law. The fact that he did it the other way (load in TX and deliver in NM) to avoid TX fuel tax added to the charges. I initiated and supervised that investigation from NM and convinced the other states to join us and got the FBI and the federal prosecutor to take the case. What gave the feds jurisdiction was the fact the distributor crossed state lines to violate state laws. NM Governor Johnson had to sign almost 200 letters of appreciation for every member of the investigation team.

The feds very likely had cases pending in other jurisdictions (actually, other judicial districts) or in state courts in case this prosecution failed. That is still true; the other cases will allege different facts and different violations, some of them violations of state law. Chapo has no realistic chance of going free anytime soon.

Chapo could very likely to cut a deal because his lawyers know that even if he is acquitted in this case, he will likely spend years in court for different charges. Also, there is the continuing problem of paying his lawyers. Even if he is acquitted, forfeiture laws have different evidentiary requirements. I don't think Chapo can use his money even after acquittal. I can see how the feds would make a case for money laundering if Chapo ever managed to get money into his lawyers' hands.

So then, why haven't the parties started plea negotiations? Simple answer: neither side has anything to lose if they wait until the verdict is in. Even if Chapo is acquitted, the feds will not enter negotiations until the verdict is in. In that event, Chapo would be taken into custody immediately on the other charges I suspect the feds have pending. Likewise, for the defense, an acquittal would strengthen their position in negotiating a favorable deal for pending charges. Simply stated, a verdict either way will most clearly define the parties' bargaining positions. Best way not to waste time and money.

So, while I do not believe Chapo will be acquitted, I think both sides have already planned for either eventuality. I also think Chapo waited too long to turn snitch. His information is stale by now.

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