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For Honduras Ex Prez Juan Orlando Hernandez Trial CIPA Interplay with Memory Briefed

By Matthew Russell Lee, Patreon Maxwell Book

SDNY COURTHOUSE, Nov 3 – After the president of Honduras' brother Tony Hernandez was convicted of drug trafficking and sentenced to life plus thirty years, on April 21, 2022 the ex-president himself, Juan Orlando Hernandez, was extradited to the United States.

[Espanol aqui]

  Inner City Press which covered the trials of Tony Hernandez and Giovanny Fuentes Ramirez immediately published the unsealed JOH indictment, which was returned on January 27, 2022 but left under seal.

On October 25, JOH's October 27 proceeding was pushed back, to November 15, 2022 - and when it happened, Inner City Press was there, and live tweeted, thread here and below.

On February 3, JOH's lawyer moved to sever his trial from that of Tigre Bonilla: "Dear Judge Castel, I represent Juan Orlando Hernandez Alvarado with respect to the above noted matter. Pursuant to Federal Rule of Criminal Procedure 14, defense counsel respectfully moves this Court on behalf of the defendant for an Order directing an election of separate trials and/or counts; or in the alternative, granting a severance of defendants based on the pervasive and unavoidable prejudice that will result by joinder of the defendants and/or counts. We believe that the defendant will suffer prejudice from a joint trial, so much so that the taint will be “sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials”. United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998). Moreover, it is the defendant’s position that prejudicial spillover will occur in that evidence that is admissible against one or both of the other proposed defendants (i.e. Mauricio Hernandez Pineda and Juan Carlos Bonilla Valladares (i.e. “El Tigre Bonilla”) will be prejudicial to the former Honduran President, Juan Orlando Hernandez Alvarado." Full letter on Patreon here.

On November 6, Judge Castel highlighted the interplay of CIPA and the defendant's memory and asked for briefing: "ORDER as to (15-Cr-379-10) Juan Orlando Hernandez. Defendant Juan Orlando Hernandez is charged with participating in a conspiracy from 2004 to 2022 to facilitate the importation of cocaine into the United States. Hernandez was extradited to the United States from Honduras, the country he served as President. Hernandez is represented by retained counsel who does not have clearance to review Classified Information ("Lead Counsel"). He also has additional counsel who is cleared to review such information ("Cleared Counsel"). There have been disclosures of Classified Information by the government to Cleared Counsel. Cleared Counsel is not permitted to discuss or share Classified Information with Lead Counsel but is free to seek from the government Rule 16, Brady and Giglio material on behalf of the defendant and argue, among other things, for the defendant's use of specific information in declassified, substituted, or redacted form. On or about Friday, October 27, 2023 Lead Counsel filed with the Court a discovery dispute letter (the "October 27 Letter"), cataloging areas of discovery that he sought. Thereafter, the government represented to the Court that the October 27 Letter contained Classified Information that should not be on the public docket. (Email of October 27, 2023 at 10:20 a.m.). On Saturday, October 28, the Court directed the Clerk of Court to remove the letter from the public docket, and she has complied. The Court has received no further explanation of the government's position. Based upon the Court's review, the October 27 Letter refers to Hernandez's own actions as President of Honduras, some of which includes his interactions with agencies and personnel of the United States government. His Lead Counsel appears to have framed discovery requests based upon those actions and interactions. Lead Counsel is aware from public filings that some of the discovery produced to Hernandez through his Cleared Counsel is Classified Information. But, on the face of the October 27 Letter, the Court is unable to discern information that was not known to him prior to the time that he was charged in this case or information that must have originated with Classified Information. The government should unambiguously state whether it takes the position that the defendant's own recollections of his own actions as an officer of a foreign country, including any interactions with agencies or personnel of the United States, is Classified Information and set forth the statutory or case law support for its position. The logical extension of such a claim would be that Hernandez may not tell his own Lead Counsel---or otherwise use in his own defense---information that he believes is exculpatory and is known to him as a foreign national wholly apart from the pendency of the charges against him by the United States. The Court will require the government to state precisely what it claims is Classified Information in the October 27, 2023 Letter and the basis for the claim. While a fulsome response to the discovery dispute Letter might have required the government to make reference in a classified submission to its prior classified submissions, the Court has not discerned the impropriety in Lead Counsel's submission. The government shall respond to the foregoing by November 9, 2023. SO ORDERED. (Signed by Judge P. Kevin Castel on 11/6/2023).

On February 10, in seeking and getting a so-called Curcio hearing on JOH's new CIPA counsel's alleged conflicts of interest, the US Attorney's Office wrote that the Rosenthal's bribed JOH - and that after receiving $250,000 JOH gave Yankel Rosenthal a cabinet-level position. US letter here.

On February 14, the Curcio hearing was held, and Inner City Press was there, thread here

On February 21, Tigre Bonilla asked to sever his trial from JOH's: "Juan Carlos Bonilla Valladares respectfully moves the Court to join the motion to sever his trial from that of all other defendants, as filed by the following co-counsel on behalf of his respective client and to the extent the factual and legal issues raised apply to Mr. Bonilla: The Motion to Sever filed by Raymond L. Colon, Esquire at ECF Docket 515. Specifically, as it relates to Counsel Colon’s application both under Rule 8(b) and under Rule 14(a) and the analysis therein. To summarize, I agree that there would be substantial prejudice in this matter to the defendants, should they be forced to be on trial, together. Moreover, to be as economic as I can be and knowing full well Your Honor does not need me to restate the law, I would simply like to add the following as it applies to severance. While, as already stated, the lack of 3500 material does make a comprehensive analysis difficult, the simple fact here is that Juan Orland Hernandez Alvarado has a 20-page indictment in which time it is alleged that not only is he drug and gun trafficker, but that he was also a prominent member of the Honduran government who eventually, during the alleged conspiracy, became President of Honduras. Further, it is alleged that President Hernandez and Mauricio Hernandez Pineda are cousins 1 . Of further relevance, in the Geovanny Fuentes Ramirez trial, Juan Orlando Hernandez is mentioned 251 times. Mr. Bonilla is NOT mentioned, nor is Mauricio Hernandez Pineda. In the trial of President Hernandez’s brother, Juan Antonio Hernandez Alvarado, Juan Orlando’s name comes up 195 times, Mauricio’s 45 and Mr. Bonilla’s 12." Full letter on Patreon here

On January 19, 2023 JOH's brother Tony reappeared, at least through the lawyer he didn't want anymore, who wrote in to ask that another lawyer be appointed, to take new discovery out to Tony in prison in California. Inner City Press' tweet of letter, here. Judge Castel didn't buy it, and ordered: " re: Request to be Relieved/ Appoint New Counsel. ENDORSEMENT: The Court is having some difficulty understanding the present status. The defendant was sentenced on March 31, 2021 and a notice of appeal was filed on April 7, 2021 and remains pending. Presumably, the defendant has appellate counsel. What remains pending in this court ? Why would CJA counsel who did not represent defendant at trial need to review "discovery material"? Why must it be done in the "very near future"? For what purpose is the review and what is the volume of material? Submit response in camera and under seal. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/19/2023)"

On January 3, 2023, the US asked to delay JOH's April 24 trial to mid-June, or to July or August as the defense requests. His lawyer had not gotten approved to view classified information. From the letter (full letter here) "The parties jointly write with respect to the April 24, 2023 trial date and other upcoming deadlines currently scheduled in this matter. The defense respectfully requests that the Court adjourn the trial to a date in July or August 2023... The Government initiated the process for defense counsel to obtain the requisite clearances to view the classified materials in June 2022 and understands that defense counsel is in the process of submitting necessary forms to obtain his clearances."

But Judge Castel did not approve it, at least not yet, ruling on January 4: "Docket Text: ORDER as to (15-Cr-379-10) Juan Orlando Hernandez. The Court has received the government's letter of January 3, 2023 seeking an adjournment of the April 24, 2023 trial date. The trial remains as scheduled.... (Signed by Judge P. Kevin Castel on 1/4/2023)."

Judge Castel convened a January 10 proceeding, at which JOH's trial was pushed back to September 18 with Tigre Bonilla. Inner City Press covered both, JOH live tweeted thread here:

JOH has been brought in by Marshals, wearing a blue COVID mask. He touches the microphone in front of him and it squawks. He covers it to speak with his lawyer beside him. No sign (yet) of his new lawyer who is authorized under CIPA

 All rise! Judge Castel: Defense? Ray Colon: For Juan Orlando Hernandez Alvarado.

Judge: I have this letter from the government that perplexes me. Is the US asking for an adjournment? Assistant US Attorney Tarlow: We agree with defense that it is appropriate.

Judge Castel: Why is an adjournment appropriate under the Classified Information Procedures Act? AUSA Tarlow: We have been coordinating with parts of the government who say they need more time to submit their declarations. Until March 17. Judge Castel: Then what?

AUSA Tarlow: We expect Section 5 & 6 of CIPA litigation Judge Castel: Why couldn't I hold to the April 24 trial date? Or just a few days past? AUSA Tarlow: The volume of classified litigation. To compress might be too aggressive. We cannot go into it in this forum

AUSA Tarlow: We could submit a letter -- Judge Castel: You could have done that before today. I have plenty of availability. Can I say, come back at 4 pm today? Or 10 am tomorrow? AUSA Tarlow: We could do it tomorrow. Judge Castel: How about today?

Judge Castel: How about a joint trial with Bonilla on September 18?  Ray Colon: We would be moving for severance. Judge Castel: That's usually what happens in conspiracy cases Ray Colon: I haven't seen the CIPA information. That's the seminal issue for us. Judge Castel: You are saying, no date works? Your letter says July or August

Ray Colon: The issue with CIPA is- Judge Castel: But you said July or August. Why doesn't CIPA volume impact that? Ray Colon: We don't know the volume. I go to that jail five days a week, to go over the discovery we have Soon we'll get 3500 material. Then the CIPA

Judge Castel: So you're asking me to vacate the trial date, and not yet another? Ray Colon: Yes Judge Castel: A motion for severance, you could file in the next 30 days, right?  Ray Colon. Yes. This process of vetting classified information, it is very complicated

 Ray Colon: I got in the mail yesterday from Washington, a letter asking me to be finger printed. But I already did it. It came out of left field. The government says they are speaking with other agencies. Is that the DEA? The CIA?

Ray Colon: We didn't consent to the March 17 date. Doesn't this all depend on them? Judge Castel: I'm not in a position to answer that. I haven't had delay problems in other CIPA cases. [Judge Castel was the judge in US v. Virgil Griffith, NorthKorea crypto case

 Judge Castel: I am going to adjourn the trial from April 24 to Sept 18. The schedule is already in the docket. Would it be convenient to file for a severance in next 30 days? Ray Colon: Yes. Judge Castel: US to respond in 21 days. I'll put an order on the docket

Ray Colon: I'm going to write to the government about activity by the Honduran government making it difficult for defense counsel to speak with certain individuals. That creates a problem for an effective defense

Ray Colon: We are going to ask, so that the US State Department make it easier for us. I had a military officer ready to testify, on a 4th Amendment issue, very salient, about an incident that did not occur who was described in Juan Antonio's trial.

 Ray Colon: The Honduras government has been placing obstacles for our defense. What US agency is influencing the relationship - the CIA or the DEA? This person was quite willing to be interviewed by me. But now he's told the family, only with a judge's order

Judge Castel: A Honduran judge? Ray Colon: If you order something, I assume the US State Department would tell the Honduran government. I don't think the present Honduran government would ignore your Honor. AUSA: This is the first we're hearing about this

AUSA Tarlow: We want to put your Honor on notice, we are looking into conflicts of interest with new counsel. We may request a Curcio hearing. Also, we want to exclude Speedy Trial Act time until September 18, to discuss any possible pre-trial resolution

Judge Castel: I grant a continuance to Sept 18, 2023 and exclude Speedy Trial Act time until then. I align the motion deadlines with the Sept 18 trial [of Tigre Bonilla], with final pre-trial conference in July.

OK - the conference is over, and Juan Orlando Hernandez had been taken back into the holding cell by the Marshals. What was Ray Colon trying to say, about being hindered by Honduran government in speaking with witnesses there

On January 9, a lawyer qualified to see classified information - in the CIA leaks trial of Joshua Schulte which Inner City Press covered, booklet here, for example - moved to join JOH's representation: "ENDORSED LETTER as to Juan Orlando Hernandez addressed to Judge P. Kevin Castel from Sabrina P. Shroff, dated 1/8/2023, re: Counsel writes to request the Court permit her to file a Notice of Appearance. ENDORSEMENT: Application Granted. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/9/2023)."

And then: "NOTICE OF ATTORNEY APPEARANCE: Sabrina P. Shroff appearing for Juan Orlando Hernandez." Watch this site.

On November 8, the (then-current) lawyer for co-defendant Mauricio Hernandez-Pineda Howard Leader wrote to Judge Castel stating the MHP "has sought to retain new counsel but is unable to do so because he does not have the funds to do so." He wants a conference this week, in light of the January 23 trial date.

On November 10, Judge Castel denied the motion but appointed a second CJA lawyer, Richard J. Ma and set a Status Conference for 11/22/2022 at 02:00 PM.

Inner City Press went to the courtroom on November 22. MHP was brought in in Essex prison yellow. He told Judge Castel, in Spanish, that he lost confidence in his lawyer, was not getting the papers, and when he did, only in English, mostly not about him.

 Judge Castel said that would be the same with any other lawyer, that it not the practices in this Courthouse to appoint Spanish language lawyers for Spanish language clients. The rift, it emerged, opened at and after a July 26, 2022 virtual proceeding. Leader was in Puerto Rico; he gently opined that the Court's questioning that day may have undermined MHP's confidence in him. Judge Castel pointed out, accurately, that he asks hard questions of the prosecution, too.

  Ma said he has a trial before Judge Preska on May 15, 2023 - and that it might move back. Judge Castel nevertheless set MHP's trial for September 18, 2023, with responses to motion in limine due June 16, and a final pre-trial conference on July 13. We'll see - watch this site.

From November 15: OK - #NarcoHonduras case of US v. Juan Orlando Hernandez, Inner City Press has been waiting in the hall with many who came to Tony's trial,  Juan Orlando Hernandez is brought in tan prison uniform, with Angel Martinez. Now Judge Castel.

All rise!

Assistant US Attorney: We have made five productions of discovery, recording of meeting with co-conspirators, extractions from electronics...

AUSA: We also have drug ledgers... We have produced a significant amount of information, in an abundance of caution. For classified information, we are mindful of the February 1 deadline. We will file ex parte and under seal. Judge: When?

AUSA: Next several weeks

 Judge Castel: Trial is set for April 2023. Let me hear from the defense - I'll set a date for the government's disclosure of the government's request to charge, and a date for the final pre-trial conference. Any motions?

JOH's lawyer Raymond Colon: The discovery is voluminous.

m JOH's lawyer: I speak fluent Spanish, but some of the audio is not clear. Judge Castel: What type of motion would that be?

JOH's lawyer. Some type of audibility hearing. Also there is a lot of noise in the jail. We need newer headphones, theirs date back to 9/11

 Judge Castel: Get in touch with the warden of the MDC and dialogue about what brand and model of headphones and why you need them. But with regard to the recordings, is the US providing you with draft translations? JOH's lawyer: Some, that go back 8 or 9 years.

 JOH's lawyer: My client's English is not the bad, the summaries are in English. But there are omissions in the summaries. Exculpatory statements, S-O-N O-F A B-I-T-C-H, I'm being diplomatic for the record - these words are not in there, there is a pattern

Judge: If the government sees conversation they intend to use as trial, they should make the interim or draft translations available to you on the rolling basis, would that help?

JOH's lawyer: Maybe but --

Judge: Of course they would not be the final translations

Judge Castel: In my experience, it is common to have instances where it says "inaudible." If you are saying it says, "That SOB," call the government. Maybe it says "Son of," then you have have an intelligent discussion. Let me hear the balance. JOH's lawyer: The other issue is the ability to have access to my client... The discovery is voluminous, we have a protective order. I've kept all the materials. I don't leave any of the materials with him. But he needs to be able to look at it when I'm not there

 JOH's lawyer: I think the US is now going to provide a redacted copy that I can leave there with him. I have to say, the BOP personnel have been very helpful. But jails have their own rules we have to abide by. The basic problem is, they don't have the cannon fire

JOH's lawyer: Some of the corrections officers say they have to relieve themselves, it's understandable, but it cuts out visit short. Or if there's a situation that requires reinforcement. It's frustrating. We've asked for separation orders, co-conspirators...

 JOH's lawyer: My client was not transported by himself. He felt uncomfortable in that big a crowd. He is the ex President of Honduras. Some in the transport may have been part of a terrorist group...

 JOH's lawyer: I can bring in my charger, then it's taken away. There's been a see-saw back in force. The lack of the charger, it implicates the Sixth Amendment.

Judge Castel: Charge up your machine in advance, right?

JOH's lawyer: My charge only lasts a few hours Judge Castel: The BOP is in the Executive Branch, they report up to the same chain as the US Attorney. I'm in a different branch. I cannot modify their charger rule. I make sure there is a counsel at the facility who will accept communications from defense lawyers

Judge Castel: I can't order them to let you bring your charger in. I have not idea of the issues. Are people strangled with the cords?  JOH's lawyer: There are other cables in the room they could use to strangle people. Anyway, I think that's it.

 Judge Castel: Any suppression motions? Motions addressed to the face of the indictment? JOH's lawyer: No motions, no sir. Judge Castel: The government should submit its request to charge and any motions then the defense has to March 31 to respond, with any motions

 Judge Castel: I've tried 2 cases, the [Geovanny] Ramirez case, & the Tony Hernandez. Look at the jury instructions I gave, that's my advice.  AUSA: We'll produce 3500 material next month, to end several months before trial. Judge Castel: That sounds unusual & good

 AUSA: There might be several witnesses who present safety concerns, so we might wait until closer to trial.

Judge Castel: By March 24, 2023 - except for witnesses they apply for and I review - and some earlier on a rolling basis.

AUSA: We move to exclude Speed Trial Act time until the date of the trial, April 24.  JOH's lawyer Colon: I understand. Judge: Any objection? Colon: No.

Judge: I exclude time. We are adjourned.

A related case that was moving toward trial, on Salguero Morales and Ronald Enrique Salguero Portillo, with problems about a witness, Ardon Soriano -- will not. Instead, after withdrawing the Ardon motions after Inner City Press sought their unsealing, they were set to plead guilty on October 6. And they did: "Minute Entry for proceedings held before Judge P. Kevin Castel: Plea entered by Otto Rene Salguero Morales (6) Guilty as to Count 1,3 and Ronald Enrique Salguero Portillo (7) Guilty as to Count 1,3."

On September 19, 2022, JOH's trial was pushed back to April 24, 2023: "ENDORSED LETTER as to (S7 15-Cr-379-10) Juan Orlando Hernandez addressed to Judge P. Kevin Castel from AUSAs Jacob H. Gutwillig, Michael D. Lockard, Jason A. Richman, Elinor L. Tarlow, dated September 19, 2022 re: The parties jointly write with respect to the September 28, 2022 status conference and other upcoming dates currently scheduled in this matter. ENDORSEMENT: September 28, 2022 conference is adjourned to October 27, 2022 at 2:00 p.m. in Courtroom 11D. The date for the Government's CIPA motion is extended to February 1, 2023. The trial date is moved from January 17, 2023 to April 24, 2023. Time is excluded to April 24, 2023 so that the parties may engage in the activities described in the Government's letter of September 19, 2022 and otherwise prepare for trial. SO ORDERED. (Signed by Judge P. Kevin Castel on 9/19/2022)(bw)

 Inner City Press live tweeted a proceeding on August 17, 2022, here then filed to unseal the secret motions, response due August 22, docketed request here.

  On Sunday September 4, before any ruling on Inner City Press' unopposed motion to unseal, now they are seeking to "withdraw" the motions. But they are judicial documents. The request: "Dear Judge Castel, On or about August 17, 2022, sealed motions were filed by previous defense counsel for defendant Ronald Enrique Salguero Portillo. The motions were jointly filed, Mr. Feitel, attorney for Otto Salguero-Morales, joined in the motion on behalf on his client. Defendant Ronald Enrique Salguero Portillo hereby withdraws the sealed motions filed on his behalf. Faithfully yours, /s/David Zapp Attorney for Ronald Enrique Salguero Portillo CC: AUSA Kaylan Lasky."

On September 6, Judge Castel granted the motion to withdraw, and dismissed Inner City Press' application to unseal as moot: "MEMO ENDORSEMENT as to Otto Rene Salguero Morales (6), Ronald Enrique Salguero Portillo (7) on re: [466] MOTION filed by Ronald Enrique Salguero Portillo to Withdraw Document specifically, previously filed motions. ENDORSEMENT: Based upon the decision of both defendants to withdraw the motion the motion filed by defendant Ronald Salguero Portillo joined in by Otto Salguero-Morales are deemed WITHDRAWN. The application to UNSEAL is DENIED as MOOT. SO ORDERED: (Signed by Judge P. Kevin Castel on 9/6/2022). We'll have more on this.

Some of Inner City Press' request - which should be granted as the motions they now seek to disappear:

"Dear Judge Castel:    On behalf of Inner City Press and in my personal capacity, this is near immediate request to unseal, in full or at least in part, the motions discussed this afternoon in open court in the above-captioned proceeding, which Inner City Press is covering.    Outgoing counsel for Mr. Ronald Enrique Salguero Portillo, it was said, submitted a motion on August 3, 2022 regarding alleged problems with the testimony of a witness, "Ardon Soriano." This was apparently followed up with a second motion submitted today, August 17, 2022.   But neither motion is contained in the docket on PACER, nor any request to file under seal. The First Amendment to the U.S. Constitution guarantees to the public a right of access to court proceedings. U.S. CONST. AMEND. I; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982). The public’s right of access is strongest when it comes to criminal proceedings such as these, which are matters of the “high[est] concern and importance to the people.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion).    This is a Press request that the filings be unsealed consistent with Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Parties such as Inner City Press and myself have standing to intervene in criminal proceedings to assert the public’s right of access. United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008).      This is a request that this opposition to sealing be docketed as, for example, took place in US v. Bright, 19-cr-521 (PKC), and in this case, regarding Juan Carlos Bonilla Valladares, on May 11, 2022,, after which Magistrate Judge Katharine H. Parker ruled: "The Financial Affidavit was filed under seal. On May 11, 2022, Matthew Russell Lee (“Lee”), a reporter with Inner City Press, filed a  letter intervening on behalf of the public and requesting that the Financial Affidavit be  unsealed.  I find that the Financial Affidavit should be unsealed."

The same should happen here.

On May 11, JUAN CARLOS BONILLA VALLADARES, or Tigre Bonilla, formerly of the Honduran National Police, was presented and Inner City Press live tweeted it here

On May 10, Juan Orlando Hernandez was brought into court to be arraigned. Inner City Press live tweeted it, thread here

Back on April 21, a lawyer filed a notice of appearance to represent JOH: Raymond L. Colon of 131 Pugsley Avenue in The Bronx, with 30 other cases over the years in SDNY.

On April 22 by video Colon represented JOH at his presentment. Inner City Press live tweeted here

 Previously, Inner City Press asked UN Secretary General Antonio Guterres why he supported already-disgraced JOH in helping to steal his second election, by sending a four person panel with no read-out.

There has still been no answer from UN Spokesman Stephane Dujarric - but Guterres' head of media access Melissa Fleming has banned Inner City Press, ongoing. 

On April 21 Inner City Press posted vlogs in English and Spanish, and streamed the DEA press statement from DC, here. We will cover JOH's presentment, arraignment and trial. 

The case is US v. Juan Orlando Hernandez, et al., 15-cr-379 (Castel). 


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