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El Chapo Is in Jail, But What Happens to Sean Penn?

Sean Penn has played many roles in his acting career, but his role in the case involving Joaquin Guzman Loera (“El Chapo”) will be the most challenging yet.

Penn went to great lengths to arrange a clandestine meeting with El Chapo while the fugitive was on the run after escaping from a “high-security” prison in Mexico last summer. The question now becomes whether this secret meeting and lengthy interview will result in anything more than an article published in the Rolling Stone.

While it may be tempting for an ambitious prosecutor to charge him, I don’t believe that Sean Penn intentionally committed any crime. Many would argue that Penn had a moral obligation to either not meet with El Chapo at all or at least to tell law enforcement about the meeting in an effort to help the authorities capture him. But I am not aware of any law in Mexico or the United States that would prevent Penn from simply travelling to the jungle to meet with El Chapo, even if the meeting included a lengthy interview over tacos and tequila.

While I don’t think we will see any criminal charges against Penn, there are several U.S. laws that would come into play if a zealous and creative prosecutor really wanted to charge him.

First, it is a crime in the United States to help someone avoid arrest, trial or punishment for a crime. If someone provides assistance or comfort to a fugitive with the intent to help the fugitive avoid arrest or punishment, then that person becomes an “accessory after the fact” under federal law.

I think it’s crystal clear from the Rolling Stone article that Penn was aware that El Chapo had violated the law on numerous occasions. El Chapo went so far as to admit, for apparently the first time, that he was a drug dealer. The problem with charging Penn as an “accessory after the fact” is that it doesn’t appear that Penn actually did anything for El Chapo with the intention of helping help him avoid being captured. In fact, it is likely that all of the communication and other activity involved in arranging this clandestine meeting may have actually helped the authorities locate El Chapo.

It is also conceivable that a prosecutor could bring charges against Penn for “misprison” of a crime. Misprison is a very unusual crime. Under federal law, a person can be charged with a felony offense (and face up to three years in prison) for failing to report that someone else committed a crime. To convict someone of this crime, a prosecutor would have to prove that the person had actual knowledge that a felony offense had been committed and then failed to report it to authorities.

Was Penn aware of the “actual commission of a felony” through his contacts with El Chapo? It is certainly possible, but based on what we know so far it doesn’t appear that El Chapo was conducting any drug business or committing any other crime except trying to stay a fugitive and not get caught. While it is technically possible to craft an argument that Penn violated this law, I don’t think it’s likely that any prosecutor would pursue it based on the facts that we know at this point.

If Sean Penn is going to be charged with any crime, it would probably be concealing (or harboring) a fugitive. There are two different laws in the United States that prohibit a person from assisting a fugitive from justice. Both of these laws require that the person being charged actually did something with the intent to help the fugitive avoid being captured. One of these laws covers escaped prisoners like El Chapo, and the other law covers people who are trying to avoid being caught after a warrant has been issued for their arrest.

There is no question that Sean Penn was aware that El Chapo had escaped from prison and was a fugitive when he met with him in Mexico. The real question is whether Penn did anything to assist El Chapo in avoiding arrest. Such assistance could conceivably include providing money, food or any other support while El Chapo remained a fugitive. Although the meeting occurred in Mexico, and El Chapo escaped from a Mexican prison, U.S. federal law could still apply because some of the activity in arranging the meeting apparently took place in the United States.

Again, there is no question that Penn was aware that El Chapo was a fugitive. But it does not appear that Penn did anything with the intent to help him avoid being arrested or support him in any way while he remained a fugitive. Offering “moral support,” or just being sympathetic to his plight, is not be enough. To be charged with concealing a fugitive, Penn would actually have to do something to help El Chapo avoid arrest in some way.

Had there been any money given by Penn or his representatives to El Chapo, the story would be entirely different. If it had been Penn or his associates who transported El Chapo to the secret meeting, the circumstances would also be different and would likely support criminal charges. But simply showing up for a meeting is not enough to support criminal charges.

While I don’t think that Sean Penn is going to face any jail time over what happened with El Chapo, I do believe he will end up having to go to court. Based on the Rolling Stone article and the short video clips obtained by Penn and his associates, El Chapo made a number of critical admissions that could later be used against him at a trial in the United States. El Chapo freely admitted his involvement in drug trafficking and even boasted about the extent of his criminal activities.

There is nothing about those statements that would make them privileged, confidential or protected in any way. The easiest way to admit those statements at his trial would be to call Sean Penn as a witness. Penn could testify about what El Chapo told him, about the circumstances of their meeting, and even about the other individuals who were assisting El Chapo at the time. I can’t think of any privilege or protection that Penn could use to try and avoid a subpoena requiring his testimony at El Chapo’s criminal trial.

Considering the fact that El Chapo is facing crimes that potentially carry the death penalty, it would be ironic to see Sean Penn end up as a material witness for the government and help them secure a death penalty sentence against El Chapo. I’m certain that, whatever his motives in setting up this meeting, helping the government execute El Chapo was not among them.

Of course, an experienced prosecutor would think not just twice but many times before calling Sean Penn as a witness in a criminal trial. There are other ways to admit El Chapo’s statements without having the additional publicity and distraction of calling a celebrity like Penn to testify before a jury. If the government truly has a strong case against El Chapo, calling Sean Penn as a witness would at the very least be a distraction.

While Penn is not likely to receive any sort of medal or commendation for the fact that his interview may have helped lead authorities to El Chapo and secure his arrest, Penn is probably not going to be charged with any crime.