United States v. Baca

• Decision Date: 27 June 2019
• Docket Number: No. CR 16-1613 JB,CR 16-1613 JB
• Citation: 409 F.Supp.3d 1169
• 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 1169

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 June 27, 2019

Fred Federici, Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515, Albuquerque, New Mexico, 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, Marc M. Lowry, Rothstein Donatelli, LLP, Albuquerque, New Mexico, Attorneys for Defendant Anthony Ray Baca.

Christopher W. Adams, The Law Office of Christohper W. Adams, P.C., Charleston, South Carolina, 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 -- Attorney at Law, El Paso, Texas, Attorney for Defendant Frederico Munoz.

Donald F. Kochersberger, III, Business Law Southwest, LLC, Albuquerque, New Mexico, Attorneys for Defendant Sergio Loya Rodriguez.

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

Diego R. Esquibel, The Barnett Law Firm, Albuquerque, New Mexico, 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, Ahmad Assed, Ahmad Assed & Associates, Albuquerque, New Mexico, Attorneys for Defendant Daniel Archuleta.

Lauren Noriega, The Noriega Law Firm, Los Angeles, California, 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, Gregory M. Acton, Acton Law Firm P.C., Albuquerque, New Mexico, Attorneys for Defendant Anthony Cordova.

Scott Moran Davidson, The Law Office of Scott M. Davidson, Albuquerque, New Mexico, Billy R. Blackburn, Billy R. Blackburn Law Office, Albuquerque, New Mexico, 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 Defendant Anthony Cordova's Motion for New Trial, filed August 21, 2018 (Doc. 903)("Motion"). The primary issues are: (i) whether the Court should grant Defendant Anthony Cordova ("A. Cordova") a new trial, because the Jury's verdict¹ entered against A. Cordova which A. Cordova alleges goes against the weight of the evidence, because of the alleged unreliability of several witnesses² -- Mario Montoya, Richard Gallegos, Billy Cordova, Steven Morales, and Federal Bureau of Investigation ("FBI") Special Agent Brian Acee; because the recorded conversation between Eric Duran, Defendant Chris Garcia, and Defendant Anthony Baca shows nothing more than that C. Garcia knew A. Cordova; because no physical evidence connects A. Cordova to the Dix murder; and because no evidence connects the Dix murder to the Syndicato de Nuevo Mexico ("SNM"); (ii) whether the Court should grant A. Cordova a new trial, because Plaintiff United States of America has not shown that the SNM engaged in racketeering acts or interstate commerce on or about the time of the Dix murder; (ii) whether the Court should grant A. Cordova a new trial for an alleged violation of the Fifth Amendment to the Constitution of the United States, because the United States commented during the United States' closing argument that, during a conversation at Central New Mexico Community College ("CNM")³ , A. Cordova remained silent in response to Acee's comments about the SNM and M. Montoya (the "CNM conversation")⁴ ; (iii) whether the Court should grant A. Cordova a new trial, because the United States allegedly violated rule 16 of the Federal Rules of Criminal Procedure by not disclosing the CNM conversation's substance and by not disclosing, until June 18, 2018, the Federal Bureau of Investigation 302 Report, filed August 21, 2018 (Doc. 903-9)("CNM 302 Report"); (iv) whether the Court should grant A. Cordova a new trial, because the United States allegedly violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (" Brady"), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (" Giglio"), by not disclosing the CNM conversation's substance and not revealing that Acee did not record the CNM conversation's full substance in the CNM 302 Report; and (v) whether the Court should grant A. Cordova a new trial for the United States' alleged prosecutorial errors in concealing from A. Cordova information about the CNM conversation, mischaracterizing at trial A. Cordova's silence, delivering a short closing argument and a long rebuttal, investigating the Dix murder in a manner not intended to ensure justice, and mischaracterizing evidence about M. Montoya and C. Garcia's November 29, 2015, conversation. The Court denies the Motion, because: (i) despite A. Cordova's contentions, the weight of the evidence supports the verdict; (ii) A. Cordova cannot use the Fifth Amendment to protect his silence in the CNM conversation, because A. Cordova did not invoke the right to silence during the conversation; (iv) the United States' late disclosure of the CNM 302 Report and its nondisclosure of Acee's comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments violate rule 16, but the violations are harmless; (v) the United States' failure to disclose that Acee excluded from the CNM 302 Report his comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments does not violate Brady and Giglio, because nondisclosure is not prejudicial; and (vi) the United States acted improperly by allowing Acee's comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments, and the United States did not act improperly in characterizing A. Cordova's silence, structuring its closing, investigating the Dix murder, or characterizing M. Montoya and C. Garcia's November 29, 2015, conversation, but all of the conduct was harmless.

FACTUAL BACKGROUND

The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 2018 WL 5980443, at *1-2, 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 ... 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

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