United States v. Martinez, CR 19-3725 JB

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation542 F.Supp.3d 1170
Parties UNITED STATES of America, Plaintiff, v. Jody Rufino MARTINEZ, Defendant.
Docket NumberNo. CR 19-3725 JB,CR 19-3725 JB
Decision Date27 January 2021

542 F.Supp.3d 1170

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

No. CR 19-3725 JB

United States District Court, D. New Mexico.

Filed January 27, 2021

542 F.Supp.3d 1175

John C. Anderson, 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.

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



THIS MATTER comes before the Court on the Defendant's Motion to Sever Offenses, filed December 12, 2019 (Doc. 36)("Motion."). The Court held a hearing on December 12 and 13, 2019. See Clerk's Minutes at 1, filed December 12, 2019 (Doc. 50). The primary issue is whether the Court should sever Martinez’ felon-in-possession of a firearm charge from his racketeering conspiracy charge under rule 14 of the Federal Rules of Criminal Procedure, because (i) the Superseding Indictment, filed December 11, 2019 (Doc. 32)("First Superseding Indictment"), has not reset the Speedy Trial Act clock for the felon-in-possession charge, and the Speedy Trial Act, therefore, requires that he be tried on the felon-in-possession charge by his original trial date; and (ii) evidence related to the racketeering conspiracy charge will be prejudicial to his

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felon-in-possession charge. The Court concludes that (i) the Speedy Trial Act clock (a) did not expire by the time the Court heard and orally denied the Motion; and (b) has not been violated, because, although the First Superseding Indictment does not reset the Speedy Trial Act clock for the felon-in-possession charge, the pretrial motions tolled the Speedy Trial Act clock; the Court granted two continuances; and the Court declared the case complex; and (ii) although the probative value of evidence of gang affiliation or membership is often low, and the substantial danger of unfair prejudice to Martinez may outweigh the probative value of the gang affiliation or membership evidence, it is too early to determine whether the Court would exclude the evidence in a stand-alone felon-in-possession charge on the limited record before the Court. Accordingly, because the Court cannot, at this early point, definitively determine whether it would exclude the evidence of gang affiliation or membership, and cannot, therefore, definitively conclude whether the evidence would be prejudicial sufficiently to warrant severance under rule 14, the Court will deny the Motion without prejudice to allow Martinez to renew his severance motion with a robust motion in limine closer to trial, if Martinez still wants the charges severed.


The Court takes its background facts from the First Superseding Indictment, filed December 11, 2019 (Doc. 33). Accord Second Superseding Indictment, filed January 9, 2020 (Doc. 56)(stating the same background facts as the First Superseding Indictment). The Court does not set forth these facts as findings or for their truth. The Court recognizes that the factual background is largely Plaintiff United States of America's version of events and that Martinez is presumed innocent.

1. General Background on the SNM Gang.

This case deals with the crimes that the Sindicato de Nuevo Mexico (Spanish for Syndicate of New Mexico)("SNM") allegedly committed through its members. See First Superseding 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." First Superseding Indictment ¶ 1, at 1. 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." First Superseding 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." First Superseding Indictment ¶ 2, at 1-2.

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. First Superseding Indictment ¶ 3, at 2. During the riot, thirty-three inmates were killed, and over 200 inmates were injured. See First Superseding 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 at once. See First Superseding 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." First Superseding

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Indictment ¶ 4, at 2. 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 First Superseding Indictment ¶¶ 3, 5, at 2-3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, primarily the control of, and the profit from, narcotics trafficking. See First Superseding Indictment ¶ 5, at 3. Members who fail "to show continued loyalty to the gang" may be assaulted or murdered. Indictment ¶ 5, at 3. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See First Superseding 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 SNM's power. See First Superseding Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See First Superseding Indictment ¶ 7, at 3. 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." First Superseding 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], [gay people], or sex offenders." First Superseding Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See First Superseding 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 First Superseding Indictment ¶ 7, at 4. The SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department officials inspired the Federal Bureau of Investigation's present investigation. See United States Notice of Related Cases, filed October 16, 2019 (Doc. 15).2 See also United States v. DeLeon, No. CR 15-4268 (D.N.M.)(Browning, J.); United States v. Baca, No. CR 16-1613 (D.N.M.)(Browning, J.)(involving twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d) ); United States of America v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.)(involving a separate prosecution of C. Garcia for drug crimes); United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.)(a four-defendant

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prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959 ); United States v. Gallegos, No. CR 16-429 (D.N.M.)(Browning, J.)(involving a defendant severed from United States v. Baca ).

2. The First Superseding Indictment.

The First Superseding Indictment charges Martinez with two counts. See First Superseding Indictment at 1-12. Count 1 charges Martinez, as a member of the SNM Gang since 1980, together with other people associated with the SNM Gang, with "conspir[ing] to ... conduct and participate, directly and indirectly, in the conduct of the affairs of the SNM Gang enterprise through a pattern of racketeering activity." First Superseding Indictment at 7. The First Superseding Indictment alleges that Martinez and "others known and unknown to the Grand Jury" committed sixteen "overt acts ... in furtherance of the conspiracy, and to accomplish the goals of the conspiracy." First Superseding Indictment at 8-11. The alleged sixteen overt acts are:

(i) "In 1980, a group of inmates at the Penitentiary of New Mexico formed the SNM Gang";

(ii) "Beginning in the 1980s, the SNM Gang designated the prison gangs, Los Carnales and the Nortenos, as their rivals and issued orders to the SNM Gang to assault their rivals whenever possible";

(iii) "Beginning in the 1980s and continuing up to the present time, the SNM Gang established a hierarchy within the gang,

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