United States v. Baca

• Decision Date: 30 May 2019
• Docket Number: No. CR 16-1613 JB,CR 16-1613 JB
• Citation: 409 F.Supp.3d 1041
• Parties: UNITED STATES of America, Plaintiff, v. Anthony Ray BACA, a.k.a. "Pup"; Christopher Garcia; Manuel Jacob Armijo, a.k.a. "Big Jake"; Frederico Munoz, a.k.a. "Playboy"; Sergio Loya Rodriguez, a.k.a. "Churro"; Manuel Benito, a.k.a. "Panther"; Vincent Garduño a.k.a. "Fatal"; Mandel Lon Parker, a.k.a. "Chuco"; Daniel Archuleta, a.k.a. "Smurf"; Daniel Sanchez, a.k.a. "Dan Dan"; Anthony Cordova, a.k.a. "Antone"; and Arturo Arnulfo Garcia, a.k.a. "Shotgun", Defendants.
• Court: U.S. District Court — District of New Mexico

409 F.Supp.3d 1041

UNITED STATES of America, Plaintiff,

v.Anthony Ray BACA, a.k.a. "Pup"; Christopher Garcia; Manuel Jacob Armijo, a.k.a. "Big Jake"; Frederico Munoz, a.k.a. "Playboy"; Sergio Loya Rodriguez, a.k.a. "Churro"; Manuel Benito, a.k.a. "Panther"; Vincent Garduño a.k.a. "Fatal"; Mandel Lon Parker, a.k.a. "Chuco"; Daniel Archuleta, a.k.a. "Smurf"; Daniel Sanchez, a.k.a. "Dan Dan"; Anthony Cordova, a.k.a. "Antone"; and Arturo Arnulfo Garcia, a.k.a. "Shotgun", Defendants.

No. CR 16-1613 JB

United States District Court, D. New Mexico.

Filed May 30, 2019

Fred Federici, Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515, Albuquerque, New Mexico --and-- Maria Ysabel Armijo, Randy M. Castellano, Matthew M. Beck, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, New Mexico, Attorneys for the Plaintiff.

Theresa M. Duncan, Duncan Earnest, LLC, Albuquerque, New Mexico --and-- Marc M. Lowry, Rothstein Donatelli, LLP, Albuquerque, New Mexico, Attorneys for Defendant Anthony Ray Baca.

Christopher W. Adams, The Law Office of Christopher W. Adams, P.C., Charleston, South Carolina --and-- Amy Sirignano, Law Office of Amy Sirignano, P.C., Albuquerque, New Mexico, Attorneys for Defendant Christopher Garcia.

Todd Bruce Hotchkiss, Todd B. Hotchkiss, Attorney at Law, LLC, Albuquerque, New Mexico, Attorney for Defendant Manuel Jacob Armijo.

Louis E. Lopez, Jr., Louis Lopez Law, El Paso, Texas, Attorney for Defendant Frederico Munoz.

Donald F. Kochersberger, III, Business Law Southwest, LLC, Albuquerque, New Mexico --and-- Pamela Sullivan, Law Office of Pamela Sullivan, Albuquerque, New Mexico, Attorneys for Defendant Sergio Loya Rodriguez.

Susan Burgess-Farrell, Barrett G. Porter, Burgess & Porter Law, LLC, Albuquerque, New Mexico, Attorneys for Defendant Manuel Benito.

Diego R. Esquibel, The Barnett Law Firm, Albuquerque, New Mexico --and-- R. Scott Reisch, Reisch Law Firm, LLC, Denver, Colorado, Attorneys for Defendant Vincent Garduño.

Marc Grano, Grano Law Offices, Las Vegas, New Mexico, Attorney for Defendant Mandel Lon Parker.

James Baiamonte, Law Office of James P. Baiamonte Esq., Albuquerque, New Mexico --and-- Ahmad Assed, Ahmad Assed & Associates, Albuquerque, New Mexico, Attorneys for Defendant Daniel Archuleta.

Lauren Noriega, The Noriega Law Firm, Los Angeles, California --and-- Amy E. Jacks, Law Office of Amy E. Jacks, Los Angeles, California, Attorneys for Defendant Daniel Sanchez.

Marcia A. Morrissey, Law Office of Marcia A. Morrissey, Santa Monica, California --and-- Gregory M. Acton, Acton Law Firm P.C., Albuquerque, New Mexico, Attorneys for Defendant Anthony A. Cordova.

Scott Moran Davidson, The Law Office of Scott M. Davidson, Albuquerque, New Mexico --and-- Billy R. Blackburn, Billy R. Blackburn Law Office, Albuquerque, New Mexico --and-- Laura E. Udall, Cooper & Udall, PC, Tucson, Arizona, Attorneys for Defendant Arturo Arnulfo Garcia.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States' Proffer Under Fed. R. Evid. 801(d)(2) and Objections, filed June 22, 2018 (Doc. 744-1)(" James ^{[1 ]} Proffers"). The Court held a James Hearing on July 3, 2018. The Court makes Findings of Facts and particularized rulings on the admissibility of Plaintiff United States of America's proffered statements.

FACTUAL BACKGROUND

The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 2018 WL 5980443, at *1, filed November 14, 2018 (Doc. 932) (" MOO"). The Court incorporates that recitation here.

The Court takes its background facts from the Superseding Indictment, filed March 9, 2017 (Doc. 372)("Indictment"). The Court does not set forth these facts as findings or for their truth. The Court recognizes that the factual background is largely the Plaintiff United States of America's version of events and that the Defendants who have not pled guilty are all presumed innocent.

This case deals with the crimes that the ... [Syndicato de Nuevo Mexico ("SNM") ] ... allegedly committed through its members. See Indictment ¶¶ 1, 3, at 1-2. The SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including, murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Indictment ¶ 1, at 2. The SNM constitutes an enterprise "as defined in Title 18, United States Code, Sections 1959(b)(2) and 1961(4), that is, a group of individuals associated in fact that engaged in, and the activities of which affected interstate and foreign commerce." Indictment ¶ 2, at 2. The enterprise is "an ongoing organization whose members/prospects/associates functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise." Indictment ¶ 2, at 2.

The SNM is a prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Indictment ¶ 3, at 2. During the riot, thirty-three inmates were killed, and over 200 were injured. See Indictment ¶ 3, at 2. After the PNM riot, the SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment ¶ 4, at 2. The SNM now has approximately 250 members, and "a ‘panel’ or ‘mesa’ (Spanish for ["]table["] ) of leaders who issue orders to subordinate gang members." Indictment ¶ 4, at 2-3. The SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment ¶¶ 3, 5, at 2-3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and the profit from narcotics trafficking. See Indictment ¶ 5, at 3. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment ¶ 6, at 3. If another gang does not abide by the SNM's demands, the SNM will assault or kill one of the other gang's members to show its power. See Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment ¶ 7, at 4. The SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Indictment ¶ 7, at 4. "Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], homosexuals, or sex offenders." Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See Indictment ¶¶ 6-8, at 3-4. The SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment ¶ 7, at 4. The SNM's recent activities in a conspiracy to murder high ranking New Mexico Corrections Department [ ("Corrections Department") ] officials inspired the Federal Bureau of Investigation's [ ("FBI") ] present investigation. See United States v. Garcia, 221 F. Supp. 3d 1275, 1277 (D.N.M. 2016) (Browning, J.).

MOO at 2-4; 2018 WL 5980443, at *1.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). The Court makes the following findings.

1. The conspiracy to murder Shane Dix ("Dix Conspiracy") included Defendant Christopher, a.k.a. Chris, Garcia ("C. Garcia"), Defendant Anthony Cordova ("A. Cordova"), Billy Cordova ("B. Cordova"), Mario Montoya, Steven Morales, Bobby Dominguez, Rocky Sanchez, and Carmelito Sanchez. See Draft Transcript of Hearing at 38:16-41:21 (taken July 3, 2018)(Court, Castellano, Morrissey)("July 3 Tr.")² (agreeing to this finding of fact);³ Letter from Fred Federici to the Court at 2 (dated June 29, 2018), filed July 2, 2018 (Doc. 766)("Conspiracy List").

2. The conspiracy to distribute drugs in a jail or prison ("Distribution Conspiracy") includes Richard Gallegos, A. Cordova, Melody Ortiz, Sylvia Gutierrez, and Dominic Pollock. See July 3 Tr. at 42:22-42:21 (Castellano, Court, Morrissey)(agreeing to this finding of fact); Conspiracy List at 2.

3. A. Cordova is not a member of the conspiracy to intimidate and/or retaliate against a witness ("Intimidation Conspiracy") or the conspiracy to murder Dwayne Santistevan,⁴ Adam Vigil,⁵ and Gregg Marcantel ⁶ ("Santistevan, Vigil, Marcantel Conspiracy"). See July 3 Tr. at 43:7-44:18 (Castellano, Court)(agreeing that A. Cordova is not a member of the witness Intimidation Conspiracy or the Santistevan, Vigil, Marcantel...