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United States v. Baca

United States District Court, D. New Mexico

April 13, 2017

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 RICHARD GALLEGOS, a.k.a. “Dopey, ” Defendants.

          Damon P. Martinez United States Attorney Maria Y. Armijo Randy M. Castellano Matthew M. Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for Plaintiff

          Marc M. Lowry Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP Albuquerque, New Mexico and Theresa M. Duncan Theresa M. Duncan, Esq. Albuquerque, New Mexico Attorneys for Defendant Anthony Ray Baca

          Christopher W. Adams 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

          John C. Anderson Holland & Hart, LLP Santa Fe, New Mexico Attorney for Defendant Frederico Munoz

          Donald Kochersberger Business Law Southwest, LLC Albuquerque, New Mexico Attorney for Defendant Sergio Loya Rodriguez

          Barrett (Barry) George Porter Burgess and Porter Law, LLC Albuquerque, New Mexico Attorney for Defendant Manuel Benito

          Diego R. Esquibel The Barnett Law Firm Albuquerque, New Mexico Attorney for Defendant Vincent Garduño

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

          Daniel J. Tallon Daniel J. Tallon, Attorney at Law Placitas, New Mexico and Ahmad Assed Law Office of Ahmad Assed Albuquerque, New Mexico Attorneys for Defendant Daniel Archuleta

          Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California and Richard Jewkes El Paso, Texas Attorneys for Defendant Daniel Sanchez

          Marcia A. Morrissey Santa Monica, California and Gregory M. Acton Albuquerque, New Mexico Attorneys for Defendant Anthony Cordova

          David Evans and Marshall J. Ray Law Offices of Marshall J. Ray LLC Albuquerque, New Mexico Kari T. Morrissey Law Office of Kari Morrissey Albuquerque, New Mexico Attorneys for Defendant Richard Gallegos

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Manuel Benito's Appeal of Detention Order, filed November 9, 2016 (Doc. 253)(“Appeal”). The Court held a hearing on December 6, 2016. The primary issue is whether Defendant Manuel Benito presents a flight risk or is a danger to the community, and should therefore remain in custody pending trial, or whether the Court can furnish conditions of release that can reduce those risks to acceptable levels. The Court concludes that, given Benito's criminal history, previous lack of good conduct on release, substance abuse, and history of placing law enforcement officers at risk, there is no condition or combination of conditions that will reasonably ensure the community's safety, or, assure his appearance in Court proceedings. The Court will deny Benito's Appeal, thereby affirming the Honorable Karen Molzen, Chief United States Magistrate Judge for the United States District Court for the District of New Mexico's Order of Detention. See Order, filed August 5, 2016 (Doc. 191)(“Order of Detention”).

         FACTUAL BACKGROUND

         After the Grand Jury issued its Indictment, filed April 21, 2016 (Doc. 2)(“Indictment”), in United States v. Baca, No. CR 16-1613 JB (D.N.M.)(Browning, J.), Benito was detained. To provide context, the Court takes its recitation of facts from the Indictment. The Court does not adopt the facts as findings or the truth. The Court recognizes that the factual background is largely Plaintiff United States of America's version and also recognizes that the Defendants are all presumed innocent.

         Syndicato de Nuevo Mexico (“SNM”) is a prison gang that controls drug distribution and other illegal activities within the New Mexico prison system, and is similarly involved in narcotics trafficking occurring outside of the prison system. See Indictment ¶ 3, at 2. It is alleged that SNM's leaders, members, prospects, and associates constitute an enterprise as defined under 18 U.S.C. §§ 1959(b)(2) and 1961(4), which provide that an enterprise constitutes a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce. See Indictment ¶ 2, at 2. The Indictment thus provides that SNM constitutes “an ongoing organization whose members/prospects/associates function[] as a continuing unit for the common purpose of achieving the objectives of the enterprise.” Indictment ¶ 2, at 2. Accordingly, the Indictment alleges that Defendants Anthony Ray Baca, Christopher Garcia, Manuel Jacob Armijo, Frederico Munoz, Sergio Loya Rodriguez, Benito, Vincent Garduño, Mandel Lon Parker, Daniel Archuleta, Daniel Sanchez, Anthony Cordova, and Richard Gallegos committed: (i) Racketeering Conspiracy under 18 U.S.C. § 1962(d); (ii) Violent Crimes in Aid of Racketeering (Murder) under 18 U.S.C. § 1959(a)(1); (iii) Aiding and Abetting under 18 U.S.C. § 2; and (iv) Violent Crimes in Aid of Racketeering (Conspiracy to Murder) under 18 U.S.C. § 1959(a)(5). See Indictment ¶ 1 at 8.

         SNM was formed after the February 1980, prison riots at the New Mexico Penitentiary in Santa Fe, New Mexico. See Indictment ¶ 3, at 2. During the prison riot, thirty-three inmates were killed; more than 200 inmates were injured; and certain inmates held hostage, assaulted, and raped twelve correctional officers. See Indictment ¶ 3, at 2. Since the prison riot, SNM has expanded throughout the New Mexican prison system and has an estimated 250 members. See Indictment ¶ 4, at 2-3. SNM's main goals include controlling and profiting from narcotics trafficking. See Indictment ¶ 5, at 3. SNM members are often expected to confront and attack suspected informants, cooperating witnesses, homosexuals, and sex offenders. See Indictment ¶ 8, at 4.

         Despite prison officials' close scrutiny, SNM leaders communicate orders to members and associates throughout and outside of the prison system by a variety of means, including secret notes, coded letters, and messages that complicit visitors deliver. See Indictment ¶ 5, at 3. SNM members are expected to remain loyal to the gang when they are released from prison. See Indictment ¶ 5, at 3. SNM disciplines members who fail to show continued loyalty in a variety of ways, including assault and murder. See Indictment ¶ 5, at 3. SNM members might display affiliation and loyalty with the Zia symbol, [1] the letters “SNM”, the letter “S, ” and the numbers “19”[2] and “505”[3] in tattoos, graffiti, drawings, and on clothing. Indictment ¶ 9, at 4-5.

         SNM also operates outside of the prison system in the streets of New Mexico, influencing and intimidating smaller New Mexico gangs to establish a larger network for its illegal activities. See Indictment 6, at 3. Accordingly, SNM does not always have to use violence to assert its control outside of prison, because the smaller gangs often fear that SNM members will assault or kill their compatriots should they be incarcerated. See Indictment ¶ 6, at 3. SNM thus retains a large membership and powerful reputation that subdues rival gangs, and prevents victims and witnesses from assisting authorities. See Indictment ¶ 8, at 4.

         The Indictment alleges that SNM 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, to gain notoriety and show its superiority over others, and to send a message to others that it is strong, powerful, and not to be provoked.

         Indictment ¶ 7, at 4. SNM “members and associates commit, conspire, attempt, and threaten to commit acts of violence, including murders and assaults to protect and expand the enterprise's criminal operations.” Indictment ¶ 13(a), at 6. If the gang had a weak reputation, it would lose its membership and dissolve. See Indictment ¶ 8, at 4.

         With respect to Benito's alleged SNM association, the United States contends that he performed nineteen unlawful overt acts “in furtherance of the conduct of the enterprise's affairs.” See Indictment ¶ 11, at 5. First, the United States alleges that he joined SNM before 1997. See Indictment ¶ 22, at 13. The United States also alleges that Benito has a Zia symbol tattoo, which indicates affiliation with SNM. See Transcript of Hearing at 17:19-21 (taken December 6, 2016)(Castellano)(“Tr.”).[4] Second, Benito allegedly robbed a Pizza Hut employee on or about March 3, 1996, while he possessed a firearm. See Indictment ¶ 19, at 12. Third, on or about June 2, 1997, Benito allegedly “possessed substances used to make an intoxicant (homemade alcohol) which was to be shared among SNM Gang members and sold to other inmates” while he was in the New Mexico Corrections Department's (“NMCD”) custody. Indictment ¶ 28, at 13. Fourth, Benito “possessed a homemade weapon and attempted to hide the weapon” while in the NMCD's custody on or about July 1, 1997. Indictment ¶ 30, at 14. Fifth, Benito allegedly killed F.M. with Leonard Lujan and Munoz while incarcerated at Bernalillo County Detention Center on or about July 5, 1998. Indictment ¶ 40, at 15. As part of the murder, Benito was alleged to have “held the door or watched the door while [other] inmates committed a homicide.” Tr. 8:5-7 (Porter). As a result, Benito plead guilty, in 2009, to conspiracy to commit murder, was sentenced to six years confinement followed by two years parole, and the remaining counts of first-degree murder and prisoner in possession of a deadly weapon or explosive were dismissed. See Pretrial Services Report at 9, (disclosed July 6, 2016)(“Bail Report”). Sixth, on or before February 19, 1999, Benito was allegedly found to be a danger and placed in administrative segregation, because he “threatened, harassed, and intimidated other inmates” while in the NMCD's custody. Indictment ¶ 47, at 17. Seventh, on or about June 10, 1999, Benito allegedly warned other SNM gang members when correctional officers entered the SNM housing unit while he was in the NMCD's custody. See Indictment ¶ 52, at 17. Eighth, Benito allegedly possessed marijuana while in the NMCD's custody on or about November 21, 1999. See Indictment ¶ 53, at 17. Ninth, Benito allegedly “threatened to assault another inmate” while in the NMCD's custody on or about May 9, 2000. Indictment ¶ 54, at 18. Tenth, Benito allegedly “threatened, harassed, and intimidated other inmates, was found to be a danger, and was placed in administrative segregation” while in the NMCD's custody on or before September 17, 2001. Indictment ¶ 62, at 19. Eleventh, on or about March 29, 2002, Benito allegedly admitted to being a member of SNM, and correctional officers allegedly saw him to have SNM tattoos. See Indictment ¶ 64, at 19. Twelfth, Benito allegedly “assaulted a victim and fled from police officers” on or about September 21, 2003. Indictment ¶ 74, at 21. Thirteenth, Benito allegedly assaulted inmate R.C. with another SNM gang member while in the NMCD's custody on or about October 25, 2005. See Indictment ¶ 98, at 24. Fourteenth, on or before November 18, 2007, Benito allegedly “threatened, harassed, and intimidated other inmates, was found to be a danger, and was placed in administrative segregation” for a third time while in the NMCD's custody. Indictment ¶ 112, at 26. Fifteenth, Benito allegedly passed messages to other SNM gang members while in NMCD's custody on or about February 21, 2008. See Indictment ¶ 116, at 27. Sixteenth, on or before April 18, 2008, Benito allegedly “threatened, harassed, and intimidated other inmates, was found to be a danger, and was placed in administrative segregation” for a fourth time while in the NMCD's custody. Indictment ¶ 120, at 28. Seventeenth, Benito allegedly “possessed alcohol and materials to make alcohol, ” and assaulted a correctional officer while being led out of his cell on or about June 12, 2008. Indictment ¶ 121, at 28. Eighteenth, Benito allegedly signed an SNM “Petition for Roll Call, ” written by SNM member G.C., along with Defendant Christopher Garcia and several other SNM members. Indictment ¶ 125, at 29. Nineteenth, and finally, Benito allegedly “burglarized a residence and fled from police officers” on or about April 12, 2015. Indictment ¶ 187, at 40.

         When Benito was arrested on April 28, 2016, for the current charges, he barricaded himself in his home. See Appeal at 2. See also Bernalillo County Sheriff's Department Special Investigations Unit Supplemental Report Form and Incident Report (dated May 2, 2016), filed July 15, 2016 (Doc. 181-1)(“BCSO Report”). He remained in his home for approximately one and one-half hours until law enforcement deployed “a flash bang and gas.” Tr. at 10:1 (Castellano). Arresting officers found a syringe in Benito's pocket at the time of arrest. See Tr. at 10:2-4 (Castellano). According to the United States, at the time of his arrest, Benito admitted that “he believed that he had outstanding warrants for his arrest.” United States Response in Opposition to Defendant's Motion for Revocation of Detention Order and Release from Pretrial Detention, filed July 15, 2016, at 3 (Doc. 181)(“Response”). Moreover, the United States believes that Benito was on release from several other state cases at the time of his arrest. Response at 3. During processing, Benito appeared to be incoherent and told officers that his name was “Amy Carrasco.” BCSO Report at 4. Additionally, Benito's mother stated that she “believed her son was self-medicating by injecting heroin and methamphetamine, ” because he has a history of heroin use dating back to his teenage years when he was a member of the 18th Street Gang, and he has only inconsistently taken his psychotropic medications. Tr. at 10:4-15 (Castellano). Bail Report at 3. Benito has “declined to discuss drug and alcohol abuse” at his counsel's request. Bail Report at 3.

         Benito has a history of learning disabilities and mental health issues. See Bail Report at 1-3. He was “diagnosed [with] learning disabilities throughout elementary, junior high, and high school.” Bail Report at 2. Benito has also reported that he has been granted disability by the Social Security Administration because of his mental health issues. See Bail Report at 2. The diagnoses include: depression; post-traumatic stress disorder; anxiety disorder; cognitive functioning disorder; and schizophrenia. See Bail Report at 3. Benito self-reported that he was prescribed Wellbutrin and “other unknown drugs to control his mental disorders, ” which, according to his mother, he does not take as prescribed. Bail Report at 3.

         During his appeal of pretrial detention, Benito argued that his lack of criminal history after 2003 is important, because it demonstrates that he has “age[d] out of criminal conduct.” Tr. at 5:9 (Porter). Accordingly, the Court will look at Benito's criminal history in light of that assertion, by explaining his criminal history as separated according to his pre- and post-2003 violations.

         Benito has a juvenile and adult criminal record. See Bail Report at 3-13. Before 2003 and during his adulthood, Benito was charged with criminal conduct fourteen times, not including the two charges alleged to underlie Benito's current charges; eleven of those charges resulted in conviction. See Bail Report at 5-10. From 1993 up to and including 2003, Benito was convicted of the following: (i) criminal trespass (October 1993); (ii) unlawful taking of a motor vehicle (November 1993); (iii) resisting, evading, or obstructing an officer (November 1993); (iv) concealing identity (May 1994); (v) intentional arson over $1, 000.00 (May 1994); (vi) petty larceny (November 1994); (vii) minor in possession of alcohol (September 1995); (viii) armed robbery with a deadly weapon (March 1996); (ix) conspiracy (March 1996); (x) public affray (June 1996); and (xi) residential burglary (June 1998). See Bail Report at 5-10. Only one of those fourteen charges were dismissed outright. See Bail Report at 5-10. Another charge was dismissed in 1994, because the victim/witness was not available; however, Benito plead guilty to failing to appear as a result of that domestic violence case. See Bail Report at 6. Similarly, an underlying battery against a household member and criminal damage to property charge was dismissed in 1996, although Benito plead guilty to failing to appear twice as a result of that matter. See Bail Report at 8. During that same time period, there are records indicating that Benito failed to appear, failed to comply with probation/parole requirements, and absconded multiple times. See Bail Report at 5-10. According to the Bail Report, Benito has had ten different state criminal cases filed since 2003. See Bail Report at 10-13. Three of those ten cases are still outstanding: (i) a case following a January, 2014, arrest, alleging aggravated battery with a deadly weapon, aggravated assault with a deadly weapon, aggravated assault, and conspiracy to commit aggravated battery with a deadly weapon; (ii) a case following a February, 2015, arrest, alleging criminal damage to property under $1, 000.00, and in which Benito failed to appear; and, (iii) a case following an August, 2015, arrest, alleging criminal damage to property under $1, 000.00, and in which Benito twice failed to appear. See Bail Report 10-12. Two of Benito's post-2003 charges resulted in convictions: (i) the first conviction followed a guilty plea for a 2015 charge of marijuana possession; and (ii) a subsequent conviction in 2015 for disorderly conduct, during which Benito failed to appear. See Bail Report at 11-12. Benito's June, 2008, charge alleging aggravated battery on a household member was dismissed by a nolle prosequi. See Bail Report at 10. Benito's April, 2015, charge for battery against a household member, and, his April, 2015, breaking and entering charge, were also dismissed. See Bail Report at 11. Benito's May, 2015, charges alleging battery upon a peace officer, assault upon a peace officer, and two counts of resisting an officer, were dismissed by a nolle prosequi after Benito failed to appear. See Bail Report at 12. Most recently, Benito's charge following his November, 2015, arrest for possession of a controlled substance was dismissed by a nolle prosequi. See Bail Report at 13. Benito was also incarcerated from approximately 2009 to 2015. See Tr. 8:12-13 (Porter).

         Pretrial Services recommends that Benito remain in custody “as it appears there is no condition or combination of conditions that will reasonably assure the appearance of this defendant as required or the safety of the community.” Bail Report at 4. In support of its recommendation, Pretrial Services alleges seven factors which indicate that Benito poses a danger to the community: (i) the “[n]ature of the alleged offense;” (ii) “[a]rrest and conviction history;” (iii) “[h]istory of violence/weapons related offenses;” (iv) “[h]istory of domestic violence/abuse;” (v) “[h]istory of assault on a law officer;” (vi) “[h]istory of unresolved substance abuse and addiction issues;” and, (vii) “[o]ther pending criminal charges.” Bail Report at 4. Moreover, Pretrial Services' assessment of non-appearance cited five factors that indicate a risk of further non-appearance: (i) “[p]rior [f]ailures to appear for court;” (ii) “[u]se of other names and identifiers;” (iii) “[s]ubstance abuse and or addiction;” (iv) “[p]ast poor performance under community supervision, and non-compliance with Court order;” and, finally, (v) “[c]onduct at the time of arrest (barricade/uncooperative).” Bail Report at 3.

         PROCEDURAL BACKGROUND

         In this opinion, the Court considers only Benito's Appeal of Detention Order. For fuller context, there are three cases before the Court related to SNM's alleged criminal activity. In a related case -- United States v. DeLeon -- a superseding indictment names thirty Defendants, all of whom are alleged SNM members or associates, and all of whom have allegedly engaged in Violent Crimes in Aid of Racketeering activity, under 18 U.S.C. § 1959. See United States v. DeLeon, No. CR. 15-4268 JB, Superseding Indictment at 1, filed April 21, 2016 (Doc. 367). There is also a prosecution of one Defendant for drug crimes, see United States v. Garcia, No. CR15-4275 JB (D.N.M.)(Browning, J.), and of four Defendants ...


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