Case 1:09-cr-00466-BMC-RLM Document 86 Filed 05/29/17 Page 1 of 3 PageID #: 1147

May 29, 2017
The Honorable Brian M. Cogan
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: United States v. Joaquin Archivaldo Guzman Loera, 09 CR 466 (BMC)
Your Honor:
We write to object to the government’s growing use of ex parte submissions and submit that
the government’s submission of ex parte documents violates Mr. Guzman’s right to due process, a
public trial, and effective assistance of counsel, and threatens to undermine the integrity of these
proceedings.
We request that Court require the government to: 1) seek Court permission, on notice to the
defendant, before filing any ex parte submission; 2) provide the defendant with, at minimum, a
summary or a minimally redacted version of all filings; and 3) disclose the contents of the
government’s previously filed ex parte submissions, or, in the alternative provide summaries of those
documents to the defendant.
Since Mr. Guzman’s arrival in the Eastern District, the government has filed four ex parte
submissions. These ex parte filings have been relied on to: 1) deny Mr. Guzman access to his counsel
in Mexico, and visitation with his wife (Dkt. No. 31); 2) ask the Court to issue an overly broad
protective order requiring, among other things, that the prosecution team itself screen any foreign
national seeking to join the defense team (Dkt. No. 45); 3) ask the Court to remove counsel based
on an alleged conflict of interest (Dkt. No 66.); and 4) reargue that the prosecution team, rather than
firewall counsel, should have the opportunity to vet non-legal visitors, attorneys, and paralegals
seeking retention and to screen Mr. Guzman’s communications with his family members. Counsel
has been left with no meaningful way to challenge the allegations contained in these submissions. To
date, the government’s ex parte submissions directly impact Mr. Guzman’s right to the effective
assistance of counsel, to counsel of his choice, his right to present a defense, and to protect himself
from having a “spy in the defense camp.” See Yohn v. Love, 76 F.3d 508, 510, 522 (3d Cir. 1996) (ex
parte conversation between judge and prosecutor causing judge to change ruling and admit evidence
violated defendants right to due process and effective assistance of counsel).
While ex parte submissions may be a common part of the government’s practice, courts have
long recognized that it is a “dangerous procedure” when the government has “private access to the

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ear of the court.” See Haller v. Robbins, 409 F.2d. 857, 859 (1st Cir. 1969). See also United States v.
Charmichael, 232 F.3d 510, 517 (6th Cir. 2000)( “As a general rule of thumb, in all but the most
exceptional circumstances, ex parte communications with the court are an extraordinarily bad idea.”);
United States v. Perrotta, 42 F.3d 702 (1st Cir. 1994); United States v. Innamorati, 996 F.2d 453 (1st Cir.
1993). Ex parte submissions at a minimum cast doubt upon the appearance of impartiality
fundamentally necessary to our system of justice. See Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.
1976), overruled on other grounds by Maine v. Moulton, 474 U.S. 159 (1985); see also Offut v. United States,
348 U.S. 11, 13 (1954).
The right to a fair trial is an essential, basic requirement of the right to due process. In Re
Murchison, 349 U.S. 133, 136 (1955). This can only be achieved through the open adversarial process
in which neither side has an unfair advantage. See, e.g., Roberta K. Flowers, An Unholy Alliance: The
Ex Parte Relationship Between the Judge and the Prosecutor, 79 Neb. L. Rev. 251, 265-263 (2000). Ex parte
communication between the prosecution and the court “stifles the people’s belief in our
independent and impartial judiciary.” United States v. Barnwell, 477 F.3d 844, 853 (6th Cir. 2007). As
recognized by the Second Circuit, “fairness can rarely be obtained by secret, one-sided
determination of facts decisive of rights.” See United States v. Abuhamra, 389 F.3d 309, 322 (2d Cir.
2004). 1 “That, of course, is the due process concern raised when a court relies on ex parte
submissions in resolving an issue that is the subject of an adversarial proceeding.” Id. at 322.
Given that ex parte communications bear directly on the defendant’s right to due process and
the effective assistance of counsel, ex parte contact between the prosecution and the Court must be
justified by a compelling governmental interest. See United States v. Barnwell, 477 F.3d 844, 850-51
(6th Cir. 2007) citing United States v. Minsky, 963 F.2d 870, 874 (6th Cir.1992) (quoting In re Taylor, 567
F.2d 1183, 1188 (2d Cir.1977)); cf. United States v. Arroyo-Angulo, 580 F.2d 1137, 1145 (2d Cir. 1978)
(closed proceedings “are fraught with the potential of abuse and, absent compelling necessity, must
be avoided”). Further, courts have recognized that the government “bears a heavy burden” in
demonstrating that an ex parte communication is warranted. See Barnwell at 851, citing United States v.
Minsky, 963 F.2d at 874.
In United States v. Abuhamra, the Second Circuit held that, as a general rule, courts should not
rely on evidence submitted ex parte, finding an exception to this rule to be permissible only in the
rare case in which: (1) the government demonstrates an overriding interest that will be prejudiced by
disclosure; (2) the order sealing the evidence is “no broader than necessary to protect that interest;”
(3) the court considers alternatives to ex parte submissions; (4) the court makes findings justifying the
ex parte submission; (5) the government discloses the substance of its ex parte submissions to the
defense; and (6) the court engages in heightened scrutiny of the reliability of the ex parte submissions.
See Abuhamra, 389 F.3d at 332. While Abuhamra considered the use of ex parte submissions in a
detention hearing, this test has been extended beyond that context. See Cabral v. Strada, 513 Fed.
Appx. 99, 103 (2d. Cir. 2013) (placement in SHU).
Given the numerous ways in which the government has sought to impact Mr. Guzman’s
rights through the use of ex parte filings, we submit that the test enunciated in Abuhamra is
Citing Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123 at 171 (1951) (Frankfurter, J.,
concurring); see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (Jackson, J.,
dissenting) (“The plea that evidence of guilt must be secret is abhorrent to free men.”).
1

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appropriate. Applying that test, the government has failed to meet its heavy burden of
demonstrating that its ex parte filings are warranted. As an initial matter, the government has failed to
provide the defense with the substance of its ex parte submissions or the specific reasons why it
believes it will be prejudiced by disclosure. Nonetheless, assuming that the government will describe
its interest as the necessity to ensure the safety of witnesses and protect ongoing investigations,
those concerns have adequately been addressed by limits placed on the defense by the Protective
Order and the SAMs. Further, the filing of entire submissions under seal, without providing a
summary to defense counsel, violates the standard announced in Abuhamra and goes beyond what is
necessary to secure the government’s purported interest. Further, the Court must consider plausible
alternatives which would provide defense counsel with the opportunity to challenge the information
contained in the ex parte submissions while addressing the government’s professed concerns. This
could likely be accomplished by ordering the government to provide summaries or minimally
redacted versions of the filings to the defendant. 2
CONCLUSION
For the reasons stated above, the government has failed to meet its burden to demonstrate a
compelling interest justifying its four previous ex parte filings. We request that the Court require the
government to: 1) seek Court permission, on notice to the defendant, before filing any ex parte
submission in the future; 2) provide the defendant with, at minimum, a summary or a redacted
version of all ex parte filings; and 3) disclose the contents of the government’s previously filed ex parte
submissions, or, in the alternative, provide summaries of those documents to the defense.
Respectfully submitted,
/s/
Michelle Gelernt, Esq.
Michael K. Schneider, Esq.
Edward S. Zas, Esq.
cc:

Clerk of the Court [by ECF]
Ms. Patricia Notopoulos, Esq.
Ms. Andrea Goldbarg, Esq.
Ms. Michael Robotti, Esq.
Mr. Hiral Mehta, Esq.

Another alternative would be to order the government to disclose the filings to defense
counsel with an assurance that counsel will not provide the names of any witnesses disclosed in the
filings to the defendant. Although we think this alternative goes beyond what is necessary to protect
the government’s interest, it should be noted that the government previously disclosed information
in this fashion and defense counsel honored the government’s request even in the absence of a court
order.
2