United States v. Herrera, 19-2126

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBACHARACH, Circuit Judge.
PartiesUNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS HERRERA, a/k/a Lazy, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL SANCHEZ, a/k/a Dan, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY RAY BACA, a/k/a Pup, Defendant-Appellant.
Docket Number19-2126,19-2141,19-2195
Decision Date27 October 2022

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.

CARLOS HERRERA, a/k/a Lazy, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.

DANIEL SANCHEZ, a/k/a Dan, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.

ANTHONY RAY BACA, a/k/a Pup, Defendant-Appellant.

Nos. 19-2126, 19-2141, 19-2195

United States Court of Appeals, Tenth Circuit

October 27, 2022


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. Nos. 2:15-CR-04268-JB-25, 2:15-CR-04268-JB-18, 2:15-CR-04268-JB-21)

Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico, for Defendant-Appellant Carlos Herrera; Josh Lee, Assistant Federal Public Defender, Office of the Federal Public Defender, Districts of Colorado and New Mexico (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant Daniel Sanchez; and Theresa M. Duncan, Duncan Earnest LLC, Santa Fe, New Mexico, for Defendant-Appellant Anthony Ray Baca.

Richard Williams, Assistant United States Attorney (Fred J. Federici, Acting United States Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

TABLE OF CONTENTS

1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of violating VICAR.........8

A. The district court severed the case into multiple trials......9

B. The government continued to furnish discovery during and even after the trial.......9

C. The government furnished much of the discovery through tablets, which the cooperating witnesses allegedly viewed to coordinate their testimony.......9

D. The government attributed the Molina murder to orders issued by Mr. Baca, Mr. Sanchez, and Mr. Herrera.......10

2

(1) Mr. Baca allegedly ordered the "hit" on Javier Molina.......10

(2) Mr. Baca also allegedly planned the murder of two corrections officials........10

(3) Mr. Herrera allegedly gave the Molina paperwork to Mr. Rodriguez and Mr. Sanchez.......11

2. All defendants: The government did not suppress materially favorable evidence.......12

A. The government must disclose evidence that's favorable, that's in its possession, and that's material.......12

B. We use different standards for reviewing the district court's legal conclusions and factual findings.......14

C. The government delayed many of its disclosures.......14

D. The recording of Mr. Rodriguez's phone call with his mother was not material .........15

(1) The Rodriguez recording didn't bear materially on Mr. Baca's guilt .......16

(2) Nor was the recorded phone call material as to Mr. Herrera or Mr. Sanchez........23

E. The government did not commit a due process violation by delaying disclosure of Mr. Urquizo's recorded phone calls about the discovery tablets.......23

(1) We review for plain error because the Defendants failed to preserve their challenges to the Urquizo recordings........24

(2) Mr. Baca does not satisfy the plain-error standard because the government had not obviously suppressed the Urquizo recordings.......26

3

F. The government did not deny due process to the Defendants by delaying disclosure of the FBI's typed notes.......30

G. The government did not violate due process by delaying disclosure of an FBI questionnaire about SNM.......33

H. Considered cumulatively, the late-disclosed evidence was not material........36

3. Defendants Sanchez and Baca: The district court didn't err in allowing introduction of the evidence of prior bad acts........37

A. Mr. Sanchez and Mr. Baca forfeited their Rule 403 arguments involving the probative value of enterprise evidence.........38

(1) Mr. Sanchez and Mr. Baca preserved a general Rule 403 argument, triggering the abuse-of-discretion standard.....38

(2) Mr. Sanchez and Mr. Baca forfeited two of their arguments.......40

(3) Even without a waiver, the Defendants' new appellate arguments would fail under the plain-error standard.......44

B. The district court did not abuse its discretion in allowing introduction of evidence about Mr. Sanchez's 2005 assaults........48

C. Any possible error would have been harmless when the district court allowed the introduction of evidence of Mr. Baca's commission of murder in 1989........51

4. Defendants Sanchez and Herrera: The district court did not err in declining to sever Counts 6-7.........55

A. The district court did not violate Rules 403 and 404(b) in allowing the introduction of evidence as to the conspiracy to kill the corrections officials..........56

4

(1) Mr. Sanchez and Mr. Herrera generally preserved their arguments on probative value.......57

(2) The district court did not abuse its discretion in applying Rule 404(b)........59

(3) The district court did not abuse its discretion in applying Rule 403........60

B. Rule 14 did not require severance........64

5. Defendants Sanchez and Baca: The district court did not abuse its discretion in declining to sever the Defendants' trials......71

A. The codefendants' out-of-court statements didn't require severance.......72

(1) Mr. Sanchez and Mr. Baca waived the issue involving severance of Defendants based on the out-of-court statements.....73

(2) Mr. Sanchez and Mr. Baca failed to timely file pretrial motions to sever the case as to the defendants.......74

(3) The district court did not raise the issue........79

(4) Without good cause, Mr. Sanchez and Mr. Baca waived their arguments under Rule 14 for severance of Defendants based on the recorded statements.......81

(5) Even without a waiver, the district court would not have erred when declining to sever the case as to the defendants.......82

(a) The district court did not err in declining to sever the Defendants based on the government's recordings.......83

(i) Mr. Sanchez and Mr. Baca had not shown actual prejudice........83

5

(ii) Even if actual prejudice had otherwise existed, the district court enjoyed discretion to alleviate the prejudice through limiting instructions................... 88

B. Severance wasn't required based on live testimony recounting out-of-court statements that had directly implicated Mr. Sanchez......91

6. All defendants: The district court did not abuse its discretion in denying the motions for a continuance.......92

A. We apply the abuse-of-discretion standard .........92

B. The district court did not err in denying Mr. Herrera's first request for a continuance .........93

C. The district court did not err in denying the Defendants' second motion for a continuance........98

7. All defendants: The Defendants waived their challenge to the constitutionality of VICAR's position clause.......106

A. Because the constitutional argument is not jurisdictional, the Defendants needed to make this argument in a pretrial motion to dismiss........107

B. The Defendants failed to raise the constitutional challenge in a timely pretrial motion........113

8. Defendant Herrera: The district court didn't prevent a full and fair defense by prohibiting Mr. Herrera from impeaching his own out-of-court statements.......117

A. Mr. Herrera preserved this challenge, so we apply the abuse-of-discretion standard ........117

(1) Preservation didn't require Mr. Herrera to make an offer of proof ........117

(2) The ruling was definitive........118

6

B. The district court did not abuse its discretion in excluding Mr. Herrera's out-of-court statements.......119

9. All defendants: No cumulative error occurred ........123

10. Conclusion......125

This case arises from the murder of a state inmate and conspiracy to murder two corrections officials. The government attributed the crimes to a prison gang, Sindicato de Nuevo Mexico ("SNM"), and charged many of its members under the Violent Crimes in Aid of Racketeering Act ("VICAR"). See 18 U.S.C. § 1959.

This appeal involves the charges against three SNM members (Anthony Ray Baca, Daniel Sanchez, and Carlos Herrera). After a six-week jury trial, they were convicted of (1) conspiring to murder a fellow SNM member (Javier Molina) (Count 6) and (2) aiding and abetting that murder (Count 7). Mr. Baca was also convicted of conspiring to murder two corrections officials (Counts 9-10).

Mr. Baca, Mr. Herrera, and Mr. Sanchez appeal based on eight arguments:

1. The government suppressed materially favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
2. The district court erred in admitting evidence of prior bad acts by Mr. Baca and Mr. Sanchez.
7
3. The district court erred in failing to sever the counts against Mr. Herrera and Mr. Sanchez.
4. The district court erred in failing to sever the trials as to Mr. Baca and Mr. Sanchez.
5. The district court erred in denying two requests for continuances.
6. VICAR's "position clause" exceeds Congress's power under the U.S. Constitution.
7. The district court erred in excluding Mr. Herrera's exculpatory statements.
8. Cumulative errors require a new trial.[1]

We reject these arguments and affirm.

1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of violating VICAR.

The SNM has operated in the New Mexico state prison system for decades. Mr. Baca had headed the SNM, and Mr. Sanchez and Mr. Herrera had served as mid-level leaders. The government alleged that

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• Mr. Baca, Mr. Sanchez, and Mr. Herrera had orchestrated the murder of a fellow SNM member, Mr. Javier Molina, and
• Mr. Baca had plotted the assassination of two corrections officials to retaliate for their enhancement of security measures after Mr. Molina's murder.

A. The district court severed the case into multiple trials.

The indictment covered not only Mr. Herrera, Mr. Sanchez, and Mr. Baca, but also nineteen other SNM members. The...

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