by Chivis Martinez for Borderland Beat
Court of Appeals considers “three factors in reviewing denials of motions to withdraw: ‘(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government's ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.’” West, 392 F.3d at 455. The District Court has broad discretion is reviewing a motion to withdraw a guilty plea. See, e.g., United States v. Hanson, 339 F.3d 983 (D.C. Cir. 2003).
Which do you guess is the basis of withdrawal he is using?
If you guessed (3) you are correct. And he has a good shot at being victorious. I have a mountain of documents and opinion to peruse, and little time, but I am working on an overview. As I previously reported, Mochomo was extradited on limited charges, and no ROS waiver. Such a waiver is given by Mexico to allow or give permission to the United States to add charges subsequent to the extradition.Then the U.S. did just that, they unloaded on the defendant. But there is no waiver. In the case of El Chapo, there is a waiver. And in his case the U.S. unloaded charges on him post extradition. He is crying foul because he refused to sign the waiver presented to him by Mexican authorities. He is waging a battle on the same grounds as Mochomo, but in Chapo’s case it is a different situation as Mexico did have the agreement with the U.S. before extradition. Chapo claims the extradition is unlawful because of the waiver. Additionally, he was without legal representation when asked to sign, and he was not given a copy. The U.S. has refused to give him a copy as well. They offered to allow he and representation time to read the waiver, but no copy.
On last Friday, the judge in Chapo’s case issued a ruling regarding the withheld waiver copy:The Government has the choice of either turning over the redacted waiver or responding to any motion defendant may make under the rule of speciality on the basis that there is no waiver. Ordered by Judge Brian M. Cogan on 2/11/2017. Motion to withdraw guilty