United States v. Martinez, CR 19-3725 JB

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: James O. Browning, UNITED STATES DISTRICT JUDGE
• Citation: 545 F.Supp.3d 1079
• Parties: UNITED STATES of America, Plaintiff, v. Jody Rufino MARTINEZ, Defendant.
• Docket Number: No. CR 19-3725 JB,CR 19-3725 JB
• Decision Date: 11 March 2021

545 F.Supp.3d 1079

UNITED STATES of America, Plaintiff,
v.
Jody Rufino MARTINEZ, Defendant.

No. CR 19-3725 JB

United States District Court, D. New Mexico.

Filed March 11, 2021

Fred. J. Federici, Acting United States Attorney, Maria Ysabel Armijo, Randy M. Castellano, Ryan Ellison, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, New Mexico, Attorneys for the Plaintiff United States of America.

Carter B. Harrison, IV, Nicholas Thomas Hart, Harrison & Hart, LLC, Albuquerque, New Mexico, Attorneys for the Defendant Jody Rufino Martinez.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

545 F.Supp.3d 1080

THIS MATTER comes before the Court on (i) the United States Proposed Jury Instructions, filed February 16, 2021 (Doc. 138); (ii) the Defendant's Proposed Jury Instructions, filed February 17, 2021 (Doc. 150)("Martinez’ Proposed Jury Instructions"); (iii) the United States’ Objections to Defendant's Proposed Jury Instructions, filed February 22, 2021 (Doc. 158)("United States’ Objections"); and (iv) the Defendant's Objections to the Government's Proposed Jury Instructions, filed February 23, 2021 (Doc. 164)("Martinez’ Objections"). The Court held a hearing on February 26 and 27, 2021. See Minute Order, filed February 24, 2021 (Doc. 178)(text only entry)(notifying parties of the hearing). The primary issues are: (i) whether the fourth element of jury instruction for Count 1, Violent Crimes in Aid of Racketeering Act, 18 U.S.C. § 1959(a) ("VICAR"), of the Second Superseding Indictment, filed January 9, 2020 (Doc. 56), should include an instruction on second-degree murder under New Mexico law, because New Mexico second-degree murder corresponds to generic murder; (ii) whether the jury instructions for VICAR murder should include all four elements of New Mexico second-degree murder and sufficient provocation, because the United States’ Proposed Jury Instructions omit one element of Mexico second-degree and omit the definition of sufficient provocation; and (iii) whether the jury instructions for VICAR murder should include instructions both for murder under New Mexico law and for generic murder. The Court concludes (i) the Plaintiff United States of America's proposed jury instruction for VICAR murder properly includes an instruction on second-degree murder under New Mexico law, because New Mexico second-degree murder corresponds to generic murder; (ii) the jury instructions for VICAR murder should include an instruction on all four elements of New Mexico second-degree murder and should include the definition of sufficient provocation, because the United States’ Proposed Jury Instructions unnecessarily omit these, see NMRA UJI Criminal §§ 14-210, -222; and (iii) the jury instructions for VICAR murder should not include instructions both for murder under New Mexico law and for generic murder.

ANALYSIS

Defendant Jody Rufino Martinez opposes the United States’ proposal to include second-degree murder under New Mexico law in the fourth element of the jury instruction for Count 1, VICAR murder. See Martinez’ Proposed Jury Instructions at 62-65 (Martinez Instruction No. 25). Martinez contends that "[s]econd-degree murder under New Mexico law does not substantially correspond to generic murder, and thus its inclusion in [the United States’] instruction [No. 30] is inappropriate." Martinez’ Proposed Jury Instructions, Martinez’ Proposed Jury Instruction No. 30, at 64 n. 21. In the alternative, Martinez argues that the jury instructions should include all elements of New Mexico second-degree murder. See Martinez’ Objections at 2-3. Last, Martinez urges the Court to include instructions both for murder under New Mexico law and for generic murder. See Martinez’ Objections at 4-5. The Court will sustain in part the United States Objections on Martinez’ proposed jury instructions for No. 25, and adopt Martinez’ changes to the United States’ Proposed Jury Instructions No. 30.

545 F.Supp.3d 1081

I. NEW MEXICO SECOND-DEGREE MURDER CORRESPONDS TO GENERIC MURDER.

The Court concludes that the inclusion of the second-degree murder under New Mexico law in the fourth element of the jury instruction for Count 1, VICAR murder, is appropriate, because the scienter requirement for N.M.S.A. § 30-2-1(B) is not narrower than the scienter requirement for generic murder. A VICAR violation requires an underlying state law offense, i.e., someone "murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do." 18 U.S.C. § 1959(a). Here, Count 1 of the Second Superseding Indictment charges Martinez with "unlawfully, knowingly, and intentionally murder D.R., in violation of NMSA 1978, Sections 30-2-1 and 30-1-13. All in violation of 18 U.S.C. § 1959(a)(1) and 2." Second Superseding Indictment at 8. Establishing that Martinez violated VICAR murder in violation of New Mexico law requires the United States to prove: (i) that Martinez’ conduct constitutes generic murder; and (ii) that Martinez’ conduct also violated New Mexico law. See United States v. DeLeon, 318 F. Supp. 3d 1272, 1276 (D.N.M. 2018) (Browning, J.)(concluding that "no matter whether [defendant] conspired [to commit assault resulting in serious bodily injury in violation of the state statute,] he only violated VICAR if also he conspired to commit assault resulting in serious bodily injury, in a generic sense"). "That structure -- identifying conduct that falls within a generic category, and also violates a state or non-racketeering federal law -- features prominently in federal racketeering statutes." United States v. DeLeon, 318 F. Supp. 3d at 1276. See Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 409-10, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (analyzing RICO's definition of racketeering activity and determining that "any act or threat involving ... extortion, ... which is chargeable under state law" includes conduct constituting generic extortion that also violates state law); United States v. Nardello, 393 U.S. 286, 293-94, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) (analyzing the Travel Act, 18 U.S.C. § 1952, and concluding that its provisions regarding "extortion ... in violation of the laws of the State in which committed," 18 U.S.C. § 1952(b)(i)(2), refers to generic extortion that also violates state law, even if the state law does not use the term "extortion"); United States v. Bagaric, 706 F.2d 42, 63 (2d Cir. 1983) (stating that, "[a]bsent an allegation that the racketeering act is not prohibited at all under state law," a court, in a RICO prosecution, is not "obliged to charge the elements of the penal codes of the various states where acts of racketeering occurred" such that "accurate generic definitions of the crimes charged were sufficient" (emphasis in original)). See also United States v. Carrillo, 229 F.3d 177, 185 (2d Cir. 2000) (asserting that, notwithstanding United States v. Bagaric’s "theoretical approval," of charging a RICO predicate "by a generic description rather than giving the jury the elements in full," that "both the text of RICO and VICAR demand that predicate acts constitute state law crimes"); Teresa Wallbaum, Novel Legal Issues in Gang Prosecutions, 68 DOJ J. Fed. L. & Prac. 99, 105 (2020) ("A predicate offense need not categorically match the enumerated federal VICAR offense .... Rather, a defendant violates VICAR when the government can prove that his conduct constituted both a violation of the enumerated crime described in the VICAR statute and a violation of the state or

545 F.Supp.3d 1082

federal crime alleged as the VICAR predicate.").¹

The Court concludes that New Mexico's second-degree murder corresponds to generic murder, and is therefore properly included in the jury instructions. The Tenth Circuit has not stated what the generic murder is in the context of VICAR, but it instructs that the "generic definition of murder requires a killer's conduct to at least evince a ‘reckless and depraved indifference to serious dangers posed to human life.’ " United States v. Castro-Gomez, 792 F.3d 1216, 1216-17 (10th Cir. 2015) (not a VICAR case)(quoting United States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014) ). See United States v. Watts, No. 14-CR-20118-002, 2017 WL 411341, at *10 (D. Kan. Jan. 31, 2017) (Robinson, J.)("According to Tenth Circuit case law, generic murder is defined as intentional killing; killing during the commission of a

545 F.Supp.3d 1083

felony; and killing that, although unintentional, occurs in the course of dangerous conduct that demonstrates a reckless or malignant disregard for serious risks posed to human life.")(citing United States v. Castro-Gomez, 792 F.3d at 1216-17 ). New Mexico law defines second-degree murder:

Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second-degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.

...