Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Deleon

United States District Court, D. New Mexico

June 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON; JOE LAWRENCE GALLEGOS; EDWARD TROUP, a.k.a. "Huero Troup;" LEONARD LUJAN; BILLY GARCIA, a.k.a. "Wild Bill;" EUGENE MARTINEZ, a.k.a. "Little Guero;" ALLEN PATTERSON; CHRISTOPHER CHAVEZ, a.k.a. "Critter;" JAVIER ALONSO, a.k.a. "Wineo;" ARTURO ARNULFO GARCIA, a.k.a. "Shotgun;" BENJAMIN CLARK, a.k.a. "Cyclone;" RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. "Creeper;" JERRY MONTOYA, a.k.a. "Boxer;" MARIO RODRIGUEZ, a.k.a. "Blue;" TIMOTHY MARTINEZ, a.k.a. "Red;" MAURICIO VARELA, a.k.a. "Archie, " a.k.a. "Hog Nuts;" DANIEL SANCHEZ, a.k.a. "Dan Dan;" GERALD ARCHULETA, a.k.a. "Styx, " a.k.a. "Grandma;" CONRAD VILLEGAS, a.k.a. "Chitmon;" ANTHONY RAY BACA, a.k.a. "Pup;" ROBERT MARTINEZ, a.k.a. "Baby Rob;" ROY PAUL MARTINEZ, a.k.a. "Shadow;" CHRISTOPHER GARCIA; CARLOS HERRERA, a.k.a. "Lazy;" RUDY PEREZ, a.k.a. "Ru Dog;" ANDREW GALLEGOS, a.k.a. "Smiley;" SANTOS GONZALEZ; PAUL RIVERA; SHAUNA GUTIERREZ and BRANDY RODRIGUEZ, Defendants.

          Damon Martinez, United States Attorney Maria Ysabel Armijo, Randy M. Castellano, Matthew Beck, Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Richard Sindel, Sindel, Sindel & Noble, P.C., Clayton, Missouri -- and -- Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos.

          Patrick J. Burke, Patrick J. Burke, P.C., Denver, Colorado -- and -- Cori Ann Harbour-Valdez, The Harbour Law Firm, P.C., El Paso, Texas Attorneys for Defendant Edward Troup.

          Russell Dean Clark, Russell Dean Clark, LLC Las Cruces, New Mexico Attorney for Defendant Leonard Lujan.

          James A. Castle, Castle & Castle, P.C. Denver, Colorado -- and -- Robert R. Cooper Robert R. Cooper Law Firm, P.C., Albuquerque, New Mexico Attorneys for Defendant Billy Garcia.

          Douglas E. Couleur, Douglas E. Couleur, P.A., Santa Fe, New Mexico Attorney for Defendant Eugene Martinez.

          Phillip A. Linder, The Linder Firm Dallas, Texas -- and -- Jeffrey C. Lahann The Lahann Law Firm Las Cruces, New Mexico Attorneys for Defendant Allen Patterson.

          Orlando Mondragon Law Office of Orlando Mondragon El Paso, Texas Attorney for Defendant Christopher Chavez.

          Nathan D. Chambers Nathan D. Chambers LLC Denver, Colorado -- and -- Noel P. Orquiz Noel P. Orquiz Attorney at Law Deming, New Mexico Attorneys for Defendant Javier Alonso.

          Billy R. Blackburn Billy R. Blackburn Law Office Albuquerque, New Mexico Attorney for Defendant Arturo Arnulfo Garcia Jerry Daniel Herrera Law Offices of J.D. Herrera Albuquerque, New Mexico -- and -- Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico Attorneys for Defendant Benjamin Clark.

          Pedro Pineda Pedro Pineda, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Ruben Hernandez.

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona -- and -- Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya.

          Steven M. Potolsky Steven M. Potolsky, P.A. Miami, Florida -- and -- Santiago David Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez Steven Lorenzo Almanza Steven Almanza Law Firm Las Cruces, New Mexico Attorney for Defendant Timothy Martinez.

          Joe A. Spencer Joe A. Spencer Attorney & Counselor at Law El Paso, Texas -- and -- Mary Stillinger The Law Office of Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela.

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

          George A. Harrison George A. Harrison, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Gerald Archuleta.

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant Conrad Villegas.

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

          Charles J. McElhinney McElhinney Law Firm LLC Las Cruces, New Mexico Attorney for Defendant Robert Martinez.

          Marcia J. Milner Marcia J. Milner, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez.

          Amy Sirignano Law Office of Amy Sirignano, P.C., Albuquerque, New Mexico -- and -- Christopher W. Adams Charleston, South Carolina Attorneys for Defendant Christopher Garcia.

          Michael V. Davis Michael V. Davis, Attorney & Counselor at Law, P.C Corrales, New Mexico -- and -- Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Attorneys for Defendant Carlos Herrera.

          Donald R. West Don West Law Orlando, Florida -- and -- Ryan J. Villa The Law Office of Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez.

          Donavon A. Roberts Donavon A. Roberts, Attorney at Law Albuquerque, New Mexico Attorney for Defendant Andrew Gallegos.

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorney for Defendant Santos Gonzales.

          Keith R. Romero The Law Office of Keith R. Romero Albuquerque, New Mexico Attorney for Defendant Paul Rivera.

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez Alfred D. Creecy Walz & Associates Albuquerque, New Mexico Attorney for Defendant Brandy Rodriguez.

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on the: (i) Defendants' Joint Motion to Sever Defendants Charged with Offenses in Counts 6 & 7, filed December 23, 2016 (Doc. 807)(“Motion to Sever”); (ii) Defendant Santos Gonzales' Motion for a Severance of Defendant, filed January 27, 2017 (Doc. 858)(“Gonzales' Motion to Sever”); (iii) Opposed Motion to Sever Counts Four and Five, filed January 31, 2017 (Doc. 868)(“A. Gallegos' Motion to Sever”); (iv) Defendants Troup and Billy Garcia's Motion to Sever Counts 1 and 2, filed February 2, 2017 (Doc. 882)(“Troup's Motion to Sever”); (v) Defendant Javier Alonso's Motion to Sever Count 3 and to Sever the Trials of Edward Troup and Javier Alonso, filed February 5, 2017 (Doc. 893)(“Alonso's Motion to Sever”); and (vi) Defendant Santos Gonzales' Amended Motion for a Severance of Defendant, filed February 7, 2017 (Doc. 901)(“Gonzales' Amended Motion to Sever”). The Court held a hearing on February 7, 2017; May 9, 2017; and May 19, 2017. The primary issues are whether: (i) severance of Counts 6 and 7 from the fourteen other Counts set forth by the Superseding Indictment, filed April 21, 2016 (Doc. 367)(“Superseding Indictment”) and the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Second Superseding Indictment”), is required or appropriate; (ii) severance of Counts 4 and 5 from the fourteen other Counts set forth by the Superseding Indictment and the Second Superseding Indictment is required or appropriate; (iii) severance of Counts 1 and 2 from the fourteen other Counts set forth by the Superseding Indictment and the Second Superseding Indictment is required or appropriate; (iv) severance of Count 3, or of Defendant Javier Alonso individually, is required or appropriate; or (v) severance of Defendant Santos Gonzales[2] is required or appropriate. Because the Court concludes that some severance is appropriate to ensure judicial efficacy, efficiency, and economy during a joint trial for the complex charges the Second Superseding Indictment raises, the Court will order severance in accordance with the Plaintiff United States of America's proposal at the February 7, 2017, hearing on this matter, wherein the United States suggested two trial groupings. Accordingly, the Court will grant in part and deny in part the: (i) Motion to Sever; (ii) A. Gallegos' Motion to Sever; (iii) Gonzales' Motion to Sever; (iv) Troup's Motion to Sever; (v) Alonso's Motion to Sever; and (vi) Gonzales' Amended Motion to Sever. The Court will sever for trial the Superseding Indictment's Counts 6-12 from its Counts 1-5 and 13-15. The result is a trial for the Superseding Indictment's Counts 6-12, and another, separate trial for the Superseding Indictment's Counts 1-5 and 13-15. A Second Superseding Indictment was filed on March 9, 2017, after most of the severance motions were filed, adding an additional Defendant, Brandy Rodriguez, as well as an additional Count 16, both of which will be tried in the Counts 1-5 and 13-15 grouping.

         FACTUAL BACKGROUND

         The Court takes its facts from both the Superseding Indictment and the Second Superseding Indictment. The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, filed October 28, 2016 (Doc. 753). See United States of America v. Angel DeLeon, 2016 WL 7242579 (D.N.M. 2016)(Browning, J.). See also United States v. DeLeon, 2016 WL 3124632 (D.N.M. 2016)(Browning, J.). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background is largely the United States' version of events and that the Defendants are all presumed innocent.

         This case deals with crimes that the Sindicato de Nuevo Mexico (Spanish for Syndicate of New Mexico)(“SNM”)[3] allegedly committed through its members. Superseding Indictment at 2. 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.” Superseding Indictment at 2. SNM constitutes an enterprise “as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Superseding Indictment at 3.

         SNM is a violent 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 Superseding Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Superseding Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Superseding Indictment at 3. SNM has approximately 250 members, comprised of “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issued orders to subordinate gang members.” Superseding Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Superseding Indictment at 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 profit from narcotics trafficking. See Superseding Indictment at 4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults.” Superseding Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Superseding Indictment at 4. If another gang does not abide by SNM's demands, SNM manages to assault or kill one of the other gang's members to show its power. See Superseding Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Superseding Indictment at 4. 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 it superiority over others.” Superseding Indictment at 4-5. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Superseding Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Superseding Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Superseding Indictment at 7. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the present investigation by the Federal Bureau of Investigations (“FBI”). United States v. Garcia, No. 15-4275 JB, Memorandum Opinion and Order at 2, filed November 16, 2016 (Doc. 133)(citing United States' Response to Defendant's Motion to Designate Complex (Doc. 56) at 1, filed May 3, 2016 (Doc. 70)(“United States' Garcia Response”)). The other relevant facts giving rise to this case are as follows.

         In March of 2014, a Doña Ana County, New Mexico, grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder and four other felonies related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility (“Southern New Mexico”). United States v. DeLeon, 2016 WL 7242579, at *3. The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See United States v. DeLeon, 2016 WL 7242579, at *3. That New Mexico grand-jury indictment charged Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See United States v. DeLeon, 2016 WL 7242579, at *3. The Doña Ana County, New Mexico, District Attorney then dismissed the charges against Montoya and Armenta -- as well as separate charges against alleged accomplice and Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy -- in November of 2015. See United States v. DeLeon, 2016 WL 7242579, at *3. “A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level.” United States v. DeLeon, 2016 WL 7242579, at *3.

         The United States now brings this case against thirty Defendants, a case that it indicted in Las Cruces, New Mexico, charging them with a total of sixteen counts. See Superseding Indictment at 1; Second Superseding Indictment at 1. All Defendants are accused of participating in the operation and management of the enterprise, and committing unlawful activities “as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity.” Superseding Indictment at 6-31. Defendants Arturo Arnulfo Garcia, Gerald Archuleta, [4] Benjamin Clark, M. Rodriguez, Anthony Ray Baca, Robert Martinez, Roy Paul Martinez, [5] and Daniel Sanchez are the enterprise's alleged leaders. See Superseding Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Superseding Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) defines that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512 and 1513, “involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant”; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Superseding Indictment at 9.

         Specifically, the Superseding Indictment provides that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia allegedly murdered “F.C.” Superseding Indictment at 9. On the same day, Defendants Lujan, B. Garcia, Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered “R.G.” Superseding Indictment at 12. On June 17, 2007, Defendants Javier Alonso, Troup, A.A. Garcia, Clark, and Ruben Hernandez allegedly murdered “F.S.” Superseding Indictment at 15. On November 12, 2012, Defendants J. Gallegos and Andrew Gallegos allegedly conspired to murder “A.B.” Superseding Indictment at 18. On the same day, Defendants J. Gallegos and A. Gallegos allegedly murdered A.B. See Superseding Indictment at 19. In March, 2014, Defendants Armenta, Montoya, M. Rodriguez, Timothy Martinez, Baca, Mauricio Varela, Sanchez, Carlos Herrera and Rudy Perez allegedly conspired to murder “J.M.” Superseding Indictment at 20-21. On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera and Perez allegedly murdered J.M. See Superseding Indictment at 21.

         Further, starting in or around 2003 -- and until about July 13, 2015 -- Defendants Baca, Archuleta, and Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to “J.R.” Superseding Indictment at 27. Starting “on a date uncertain, but no later than 2013, ” and until the date of the Superseding Indictment -- April 21, 2014 -- Defendants Baca, R.P. Martinez and Robert Martinez allegedly conspired to murder “D.S.” Superseding Indictment at 28. During the same period of time, Defendants Baca, R.P. Martinez, R. Martinez and Christopher Garcia allegedly conspired to murder “G.M.” Superseding indictment at 28. On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Superseding Indictment at 29. On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a charge of conspiracy to murder. See Superseding Indictment at 29.

         On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against “J.G.” Superseding Indictment at 30. From February 1, 2016, until February 27, 2016, Defendants J. Gallegos, B. Rodriguez, Santos Gonzales, Paul Rivera, and Shauna Gutierrez allegedly conspired to murder “J.G.” Superseding Indictment at 30; Second Superseding Indictment at 17-18. Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzales, Rivera and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Superseding Indictment at 31; Second Superseding Indictment at 17-18. The same Defendants also allegedly tampered with evidence. See Second Superseding Indictment at 17-18.

         For fuller factual context, there are now four cases before the Court related to SNM's alleged federal criminal activity. In a related case -- United States of America v. Anthony Baca, No. CR 16-1613 JB (D.N.M.)(Browning, J.)[6] -- the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d).[7] There is also a prosecution of one Defendant for drug crimes, see United States of America v. Christopher Garcia, No. 15-4275 JB (D.N.M.)(Browning, J.), and of four defendants for further alleged conduct, as is alleged in the present case, constituting Violent Crimes in Aid of Racketeering activity, under 18 U.S.C. § 1959, see United States of America v. Mauricio Varela, No. 15-4269 JB (D.N.M.)(Browning, J.).

         PROCEDURAL BACKGROUND

         On December 1, 2015, a federal grand jury indicted twenty-four Defendants for the crimes of Murder (under 18 U.S.C. § 1959(a)(1)); Violent Crimes in Aid of Racketeering and U.S.C. § 2: Principals), Conspiracy to Murder (under 18 U.S.C. § 1959(a)(5); and Conspiracy to Commit Assault Resulting in Serious Bodily Injury (under 18 U.S.C. § 1959(a)(6)). See Indictment at 1, filed December 1, 2015 (Doc. 1)(“Indictment”). The Defendants were all allegedly members, prospects, or otherwise associated with SNM, which constitutes an enterprise as 18 U.S.C § 1959(b)(2) defines that term. See Indictment at 2.

         On April 21, 2016, a grand jury, by the Superseding Indictment, indicted thirty Defendants -- twenty-four of whom were Defendants in the original Indictment. See Superseding Indictment at 1. In addition to the new Defendants, the Superseding Indictment also contains new charges under modified count numbers. See Superseding Indictment at 9-31. The Superseding Indictment contains fifteen counts for: (i) the Murder of F.C. (“Count 1”); (ii) the Murder of R.G. (“Count 2”); (iii) the Murder of F.S. (“Count 3”); (iv) Conspiracy to Murder A.B. (“Count 4”); (v) the Murder of A.B. (“Count 5”); (vi) Conspiracy to Murder J.M. (“Count 6”); (vii) the Murder of J.M. (“Count 7”); (viii) Conspiracy to Commit Assault Resulting in Serious Bodily Injury to J.R. (“Count 8”); (ix) Conspiracy to Murder D.S. (“Count 9”); (x) Conspiracy to Murder G.M. (“Count 10”); (xi) Felon in Possession of a Firearm (“Count 11”); (xii) Using and Carrying a Firearm During and in Relation to a Crime of Violence (“Count 12”); (xiii) Assault with Dangerous Weapon of J.G. (“Count 13”); (xiv) Conspiracy to Murder J.G. (“Count 14”); and (xv) Attempted Murder of J.G., Assault with a Dangerous Weapon Upon J.G., Resulting in Serious Bodily Injury to J.G. (“Count 15”). Superseding Indictment at 9-31. At the time of the Superseding Indictment's filing, some of the Defendants were death-penalty eligible. See The United States' Notice of Intent Not To Seek a Sentence of Death, filed June 6, 2016 (Doc. 567)(stating that it would not seek a death sentence against twenty-one Defendants). The Honorable Ken Gonzales, United States District Judge for the District of New Mexico, initially presided over the case until it was reassigned to the Court on March 30, 2016.[8] See Judge Update, filed December 1, 2015, and Notice of Case Reassignment, filed March 30, 2016 (Doc. 351). Given the large number of Defendants and the safety concerns at issue in these cases Judge Gonzales initially entered a Protective Order regulating discovery, and the Defendants continue to receive their discovery on tablets managed by a coordinated discovery management firm.[9] See Protective Order, filed June 16, 2016 (Doc. 589)(“Protective Order”).

         On March 9, 2017, a grand jury, in a Second Superseding Indictment, indicted thirty-one Defendants -- thirty of whom were Defendants named by the Superseding Indictment. See Second Superseding Indictment at 1. The Second Superseding Indictment adds an additional Defendant, B. Rodriguez, as well as a count for Tampering With a Witness, Victim, or Informant by Physical Force or Threat (“Count 16”). Second Superseding Indictment at 17-18. B. Rodriguez is named in Count 14, Count 15, and the added Count 16. Count 16 alleges that, on February 27, 2016, J. Gallegos, Gonzales, Rivera, Gutierrez and B. Rodriguez, “used and attempted to use physical force and the threat of physical force against J.G. by assaulting J.G. with a dangerous weapon with the intent to influence, delay, or prevent J.G. from testifying against JOE LAWRENCE GALLEGOS in an official proceeding . . . in violation of 18 U.S.C. §§ 1512(a)(2)(A) and 2.” Second Superseding Indictment at 18.

         1. Motion to Sever.

         The Motion to Sever explains that “Defendants Jerry Armenta, Jerry Montoya, Mario Rodriguez, Timothy Martinez, Anthony Ray Baca, Mauricio Varela, Daniel Sanchez, Carlos Herrera and Rudy Perez (2014 Defendants) are charged in the 15-count superseding indictment in Counts 6 and 7 with conspiracy to commit murder and murder of Javier Molina [(‘J.M.')]” on March 7, 2014, at Southern New Mexico. Motion to Sever at 1. Of the nine Counts 6 and 7 Defendants, whom the Motion to Sever refers to as the “2014 Defendants, ” only Baca, the Motion to Sever explains, has been charged in the other Counts in the Superseding Indictment.

         Motion to Sever at 1-2. The Motion to Sever thus advances

three main arguments: (1) Counts 6 and 7 were improperly joined under Rule 8(a), as they do not share a sufficient nexus with the other charges to permit joinder; (2) the 2014 Defendants were improperly joined under Rule 8(b), as they are not alleged to have participated in the same act or transaction or in the same series of acts or transactions that constitute crimes as the 21 other defendants; and (3) should the Court find joinder proper under Rule 8(a) and Rule 8(b), severance is still required under Rule 14 and the Fifth Amendment because a joint trial of the 2014 Defendants for Counts 6 and 7 alongside the 21 other defendants and the 13 other counts in the superseding indictment will deprive the 2014 Defendants of their right to a fair trial.

         Motion to Sever at 2.

         After recapping an extensive factual background of the case similar to that which the Court has provided in this Memorandum Opinion and Order, the Motion to Sever primarily elaborates on what the Defendants “believe[] the government's theory” is underlying the Superseding Indictment's factual background regarding Counts 6 and 7. Motion to Sever at 5. The Motion to Sever surmises:

Defendant Baca ordered Mr. Molina to be killed because he was alleged to have cooperated with law enforcement. Defendants Sanchez and Varela, as alleged intermediate leaders of the SNM, are alleged to have given the go-ahead for the killing and given orders to help execute it. Defendant Herrera also allegedly sanctioned the killing. Defendant Perez is accused of providing his walker to make a shank or shanks for the killing. Defendants Rodriguez and Martinez are accused of going into Molina's cell and choking him until he was unconscious and Defendant Armenta and Defendant Montoya are alleged to have then gone into the cell and stabbed Molina multiple times, which ultimately led to his death. All the 2014 Defendants are alleged to be members of the SNM.

         Motion to Sever at 5. The Motion to Sever also reiterates that, “for the murder of Molina, ” the “Third Judicial District Attorney's Office in Las Cruces, obtained indictments against Defendants Jerry Armenta, Jerry Montoya and Mario Rodriguez, ” and that the case was “ready to proceed to trial on November 16, 2015, ” before the United States brought the present federal charges. Motion to Sever at 5.

         Regarding Counts 1-5, the Motion to Sever does not provide any further factual background beyond that which the Superseding Indictment alleges and which the Court recounts in its Factual Background. See Motion to Sever at 4-5. The Motion to Sever highlights, however, the distance in both time and location between the conduct alleged in Counts 1-5, and the conduct in Counts 6 and 7, as well as the different Defendants alleged to have committed the conduct. See Motion to Sever at 4-5. For Count 8, the Motion to Sever elaborates on the Superseding Indictment's factual allegations, stating that,

[i]n his Plea Agreement, Defendant Archuleta states that in 2003 he had a falling out with J.R., who is also alleged to be an SNM member. . . . As a result, Defendant Archuleta states he put a “green light” on J.R., which is common slang for ordering the murder of a person. . . . Because of Archuleta's green light, J.R. was shot in 2003, but survived, and then was assaulted in 2015 in SNMCF for the same reason. . . . Defendant Archuleta implicates Defendant Baca as sanctioning the green light . . . .

         Motion to Sever at 6. For Counts 9 and 10, the Motion to Sever elaborates on the Superseding Indictment's factual allegations by providing:

Counts 9 and 10 are both alleged conspiracies to murder Dwayne Santistevan, the head of [the New Mexico Department of Correction's (“NMDOC”) Security Threat Intelligence Unit (“STIU”)] and former Secretary of Corrections Greg Marcantel. Defendants Anthony Baca, Roy Martinez and Robert Martinez, are charged in both counts. Defendant Roy Martinez has entered a plea to both counts. . . . In his plea, Mr. Martinez claims he conspired with Defendants Baca, Robert Martinez, and others, to kill Marcantel and Santistevan. Other than Defendant Baca, Martinez does not identify any of the other defendants in Counts 6 and 7 as being involved. Defendant Chris Garcia is charged in Count 10.

         Motion to Sever at 6-7. The Motion to Sever, last, does not further elaborate on the Court's recitation of the Superseding Indictment's factual allegations underlying its Counts 11-15. See Motion to Sever at 7.

         The Motion to Sever then turns to its substantive argument in favor of Counts 6 and 7's severance. See Motion to Sever at 7. The Motion to Sever argues: “Joinder in criminal cases is governed by Rule 8, and severance, Rule 14 of the Federal Rules of Criminal Procedure as well as the Fifth Amendment.” Motion to Sever at 7. Regarding rule 8 of the Federal Rules of Criminal Procedure, the Motion to Sever explains that “[u]nder Rule 8(a) the joinder of offenses is appropriate only when the offenses are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Motion to Sever at 7 (emphasis added)(internal quotation marks and citations omitted). In turn, the Motion to Sever asserts that “[w]hile Rule 8(a) is construed broadly to allow liberal joinder to enhance the efficiency of the judicial system, joinder is only proper where at least one of the Rule 8(a) conditions are met, and those conditions, although phrased in general terms, are not infinitely elastic.” Motion to Sever at 7-8 (internal quotation marks and citations omitted). The Motion to Sever also explains: “Rule 8(b) applies to the joinder of defendants in a criminal trial[, and, u]nder Rule 8(b), joinder of defendants is proper only where the defendants are alleged to have participated in the same act or transactions, or in the same series of acts or transactions constituting a crime.” Motion to Sever at 8 (emphasis added)(internal quotation marks and citations omitted).

         Still further, the Motion to Sever asserts:

Even if two or more offenses or defendants are properly joined under Rule 8(a) or (b), joinder is also subject to scrutiny under Rule 14. While the purpose of joinder is to promote economy and efficiency and to avoid a multiplicity of trials, these objectives must be achieved without substantial prejudice to the right of the defendants to a fair trial.

         Motion to Sever at 8 (internal quotation marks and citations omitted). According to the Motion to Sever, regarding rule 14 of the Federal Rules of Criminal Procedure, rule 14

provides for relief from prejudicial joinder, allowing that if the joinder of offenses or defendants in an indictment . . . or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.

         Motion to Sever at 8 (internal quotation marks and citations omitted). Nonetheless, the Motion to Sever concedes, “[u]nder Rule 14, the determination of the risk of prejudice and the decision whether to grant a motion to sever is soundly within the discretion of the trial court.” Motion to Sever at 8 (internal quotation marks and citations omitted). The Motion to Sever explains that, “[i]n determining whether to grant a motion to sever under Rule 14, the Court must weigh the potential prejudice to the defendant against the considerations of judicial economy and efficiency, ” and that the United States Court of Appeals for the Tenth Circuit “has held that [p]rejudicial joinder occurs under Rule 14 when an individual's right to a fair trial is threatened or actually deprived.” Motion to Sever at 8-9 (citing United States v. Johnson, 130 F.3d 1420, 1427 (10th Cir. 1997)(internal quotation marks omitted)).

         Accordingly, the Motion to Sever first contends that “Counts 6 and 7 were improperly joined under Rule 8(a) and must be severed from the remaining counts, ” because the offenses joined by the Superseding Indictment are not offenses that are “(1) of the same or similar character, (2) based on the same act or transaction, or (3) constitute parts of a common scheme or plan.” Motion to Sever at 10. The Motion to Sever identifies that the Superseding Indictment likely joins Counts 11 and 12 -- C. Garcia's firearms offenses -- in accordance with rule 8(a)'s third prong, “constitute parts of a common scheme or plan, ” but contends that “[t]here are limits, however, to how broadly a Court can construe a common scheme or plan.” Motion to Sever at 10-11. The Motion to Sever argues: “Under Rule 8(a), offenses are part of a common scheme or plan when the alleged offenses are similar, carried out in the same manner, and are alleged to have occurred over a relatively short period of time.” Motion to Sever at 11 (citing United States v. Jordan, 602 F.2d 171, 172 (8th Cir. 1979)). The Motion to Sever thus provides:

Here, all the government can claim is that the defendants are alleged members of the SNM and have been indicted with VICAR offenses. While the government can claim that the purpose of the offenses as well as the means and methods of the SNM constitute racketeering activity as defined in 18 U.S.C. §§ 1959(b)(1) and 1961(1), there is no RICO exception to Rule 8 and the government should not be allowed to rely on allegations of RICO conspiracy to draw every alleged crime of every alleged SNM member under the mantel of a common scheme or plan for purposes of Rule 8(a).

         Motion to Sever at 11 (citing United States v. Guiliano, 644 F.2d 85, 89 (2d Cir. 1981)(“One of the hazards of a RICO count is that when the Government is unable to sustain a conviction under this statute, it will have to face the claim that the prejudicial effect of tarring a defendant with the label of ‘racketeer' tainted the conviction on an otherwise valid count.”)).

         The Motion to Sever then concedes that, besides C. Garcia's offenses, the remaining counts are “either the same type of offense -- murder or conspiracy to commit murder -- or are similar in character -- assault or attempted murder [and w]ith regard to these charges, perhaps the government could satisfy the first prong of Rule 8(a)” in joining them with Counts 6 and 7. Motion to Sever at 11. The Motion to Sever thus argues:

There is no evidence, however, that Counts 6 and 7 are based on the same acts or transactions as these other charges. In fact, the crimes alleged in Counts 1 and 2 occurred over a decade before the allegations resulting in Counts 6 and 7. Thus, while many of these other offenses are the same character of offense as Counts 6 and 7, because of the differences in time, location and offenders the “same act or transaction” provision of Rule 8(a) cannot be met here.

         Motion to Sever at 11-12 (citing United States v. Riebold, 557 F.2d 697, 707 (10th Cir. 1977)(holding that joinder is proper “[w]here the evidence overlaps and the offenses are similar . . . and the operable events occurred within a relatively short span of time”). Further, the Motion to Sever argues, when

[t]urning to the last provision of Rule 8(a), the 11 other murder, conspiracy and assault charges do not constitute parts of a common scheme or plan. In the Tenth Circuit, the test for joinder is whether there is a common thread. In this case, there are simply no common threads between Counts 6 and 7 and the other counts, and the only commonality shared by all defendants is their alleged involvement with the SNM.

         Motion to Sever at 12 (citing United States v. Caldwell, 560 F.3d 1202, 1212 (10th Cir. 2009)(quoting United States v. Rogers, 921 F.2d 975, 984 (10th Cir. 1990))). The Motion to Sever, then, ultimately contends:

While proof a “common purpose” is sufficient to bring a group of people under RICO, Rule 8(a) and the Tenth Circuit require that the offenses share a commonality that goes beyond merely the goals or purpose of the group. Here, the government will likely argue that these crimes were all committed by SNM members to further SNM goals and thus demonstrate a common scheme or plan. This argument fails, however, because the government cannot simply use the umbrella of RICO to join every alleged SNM crime by simply stating that the offense shared a common purpose. The plain language of Rule 8(a) and the Tenth Circuit's test requires more.

         Motion to Sever at 12-13.

         Next, the Motion to Sever contends that the Counts 6 and 7 “Defendants were improperly joined under Rule 8(b) with the other 21 Defendants and their trial on Counts 6 and 7 should therefore be severed.” Motion to Sever at 13. The Motion to Sever then concedes that, “[i]n Zafiro, the Supreme Court [of the United States] stated that joinder under Rule 8(b) serve[s] the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Motion to Sever at 13 (citing Zafiro v. United States, 506 U.S. 534, 537 (1993)). The Motion to Sever argues, however:

This possibility of scandal and inequity, however, is not a risk in this case. In cases where other defendants' charges are based on the same alleged crime and similar evidence or stem from the same conduct, as was the case in Zafiro, the court's concern with inequality and inconsistency is understandable. In Zafiro, four defendants were arrested together in an apartment with more than 70 pounds of cocaine and other drugs. . . . All four defendants were charged and convicted of conspiring to possess illegal drugs, and the Court affirmed the denial of defendants' motions to sever.
In United States v. Hill, the Tenth Circuit affirmed the district court's denial of a motion to sever where multiple co-defendants and members of the Tulsa, Oklahoma[, ] Hoover Crips were tried and convicted of conspiracy to commit bank robbery. . . . Co-defendant Dejuan Hill's motion to sever was denied because the court reasoned that “[a]lthough the Indictment . . . charged six different robberies alleged to have been committed by different defendants over a more than two-year period, it also alleged that the defendants had conspired and agreed with each other to commit all six of the robberies.”

         Motion to Sever at 13-14 (quoting United States v. Hill, 786 F.3d 1254, 1258 (10th Cir. 2015), cert. denied, Hill v. United States, 136 S.Ct. 377 (2015)). Accordingly, the Motion to Sever asserts:

Unlike the defendants in Zafiro and Hill, here, there is no allegation that the 2014 Defendants, and the other defendants, with the exception of Defendant Baca where noted, conspired and agreed with each other to commit the other crimes alleged in the indictment. In short, there is no evidence that the crimes alleged in Counts 6 and 7 were part of a series of acts or transactions. Even in the most favorable light, the indictment alleges that, out of the nine 2014 Defendants, only Defendant Baca participated in any of the other counts. Further, there is no evidence of a transactional nexus between the 2014 Defendants and any of the other defendants or other counts. There is no evidence that the any of the other 2014 Defendants and other defendants participated in a series of acts or transactions despite the fact that the government has actively investigated these defendants for more than two and half years with the help of cooperating witnesses, confidential informants, and call and mail monitoring.

         Motion to Sever at 14. The Motion to Sever then reiterates the contention that, because

the crimes alleged in Counts 6 and 7 only involve the 2014 Defendants, the Zafiro court's concerns for equality and consistence do not exist. Because the charges against the 2014 Defendants are discrete and not connected to any of the other defendants, a separate trial would not lead to potential inconsistent verdicts with regard to the 2014 Defendants and the other 20 defendants.

         Motion to Sever at 15.

         Last, the Motion to Sever argues in the alternative that “Counts 6 and 7 should be severed under Rule 14, as the evidence of other murders, assaults, and conspiracy by SNM members will severely prejudice the 2014 Defendants, and a joint trial of all defendants on all counts is impractical.” Motion to Sever at 15. The Motion to Sever states:

The Federal Rules envision . . . that circumstances may arise where joint trials would be inappropriate and, indeed, harmful to the accused's constitutional rights. Therefore, a three-step inquiry is necessary to determine whether the Court should grant a motion to sever. First, the Court must determine whether the defenses presented are so antagonistic that they are mutually exclusive. Second, a defendant must further show a serious risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. Finally, the trial court exercises its discretion and weighs the prejudice to a particular defendant caused by joinder against the obviously important considerations of economy and expedition in judicial administration.

         Motion to Sever at 15-16 (internal quotation marks omitted)(citing United States v. Neha, 2005 WL 3663695, at *2 (D.N.M. 2005)(Browning, J.), aff'd, United States v. Neha, 301 Fed.Appx. 811 (10th Cir. 2008); United States v. Gould, 2007 WL 1302587, at *2 (D.N.M. 2007)(Browning, J.); United States v. Pursley, 474 F.3d 757, 765 (10th Cir. 2007)). The Motion to Sever then discusses the case United States v. Gallo, 668 F.Supp. 736 (E.D.N.Y. 1987)(Weinstein, C.J.), where “the District Court granted the defendants' motion for severance under Rule 14 and separated a 22-count RICO indictment charging 16 defendants into 7 separate trials.” Motion to Sever at 16. In that case, the Motion to Sever explains:

The 22 count indictment charged the defendants, alleged members and associates of the Gambino Crime Family, with RICO and a multitude of “substantive” offenses that took place over the course of two decades and were related to an alleged criminal enterprise. . . . Although the court determined that the defendants were properly joined under Rule 8(b), it held that severance was required under Rule 14 after considering the prejudice resulting from: (1) the complexity of the indictment; (2) the disproportionality of evidence; (3) whether there is an antagonism of defense strategies and theories; (4) whether there is evidence only admissible as to some defendants; (5) the potential inadequacy of limiting instructions; and (6) the balancing requirements of Rule 14 including the deleterious effect of prolonged complex cases, and whether granting a severance saves time.

         Motion to Sever at 16-17. The Motion to Sever thus argues that, like in United States v. Gallo, sufficient prejudice would result from a joint trial of these Defendants. See Motion to Sever at 20. The Motion to Sever cites the facts that: (i) “Like Gallo, this case deals with a complex RICO indictment spanning decades' worth of criminal allegations [involving] separate, distinct alleged murder conspiracies that took place at different points in time, involved completely different alleged conspirators, and different alleged victims”; (ii) “the disproportionality of the evidence in relation to the 30 defendants charged”; (iii) “it is unclear at this point whether the 30 defendants' defenses are so antagonistic as to be mutually exclusive”; (iv) “[p]resentation of evidence on the multiple other alleged murders, conspiracy to commit murder, assaults and the firearms charges not contained in Counts 6 and 7 will subject the 2014 Defendants to undue prejudice by creating an atmosphere of criminal propensity”; (v) “[i]n a case this complex, a limiting instruction is more aspirational than a reality, and in a judicial system, dedicated to truth and justice, such a lack of connection with reality is unacceptable”; (vi) “severing . . . Defendants from the other co-defendants would best serve the interest of the Court and the jury”; and (vii) “[e]ven the largest of the federal courtrooms in the District of New Mexico, however, cannot adequately accommodate the trial, much less voir dire.” Motion to Sever 20-25. The Motion to Sever also highlights the Court's grant of severance in the related case United States v. Baca, where the Court “grant[ed] severance in part because a joint trial would prevent the jury from making a reliable judgment in a case where many defendants with varying degrees of culpability would be tried together, ” and because “the risk of prejudice was heightened given the co-Defendants' ‘markedly different degrees of culpability.'” Motion to Sever at 23 (quoting United States v. Baca, 2016 WL 6404772 (D.N.M. 2016)(Browning, J.)). That reasoning, the Motion to Sever argues, is persuasive here, because, “[a]lthough the Court based its decision to sever that case on several other factors as well, there are clear parallels with this case, where the defendants in question (with the exception of Defendant Baca) are only alleged to have been involved with one incident and the related conspiracy.” Motion to Sever at 23.

         In conclusion, the Motion to Sever makes one last argument that “severance of Counts 6 and 7 is necessary to protect the 2014 Defendants' respective rights to a fair trial under the Fifth Amendment.” Motion to Sever at 25. The Motion to Sever contends that “[m]isjoinder rises to the level of a constitutional violation when it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial” and that “[h]ere the fact that the defendants have been charged with VICAR offenses cannot overcome the 2014 Defendants' right to a fair trial on the charges alleged against them.” Motion to Sever at 26-28. Accordingly, the Motion to Sever concludes:

A joint trial of Counts 6 and 7 alongside the other 13 charges is not permitted under Rule 8(a), or Rule 8(b) and if it were, it is not permitted under Rule 14 or under the Fifth Amendment, as the 2014 Defendants would be prejudiced by the presentation to the jury of similar offenses by other purported members of the SNM.

         Motion to Sever at 28. For clarity, because there are many motions in this case, the Motion to Sever explains:

Counsel for the 2014 Defendants Jerry Montoya (by Larry Hammond), Daniel Sanchez (by Amy Jacks), Anthony Ray Baca (by Theresa Duncan), Mauricio Varela (by Mary Stillinger) and Timothy Martinez (by Steven Almanza) join in the Motion. Counsel for Defendants Joe Gallegos (by Brock Benjamin), Christopher Chavez (by Orlando Mondragon), Santos Gonzales (by Erlinda Johnson), Conrad Villegas (by B.J. Crowe) and Paul Rivera (by Keith Romero) do not oppose this Motion. Counsel for Defendants Eugene Martinez (by Douglas Couleur) and Leonard Lujan (by Dean Clark) take no position on this Motion.

         Motion to Sever at 28.

         2. The Count 3 Defendants' Response.

         “Defendants, Edward Troup, Javier Alonso and Arturo Arnulfo Garcia (the Count 3 defendants), through counsel, ” submitted a response to the Motion to Sever. Response of Certain Count 3 Defendants to Joint Motion to Sever Defendants Charged with Offenses in Counts 6 and 7 [Doc. 807], filed January 6, 2017 (Doc. 812)(“Count 3 Response”). The Count 3 Response begins by explaining that “Defendants Edward Troup, Javier Alonso, Arturo Arnulfo Garcia, Benjamin Clark, and Ruben Hernandez are charged in Count 3 with the murder of Freddie Sanchez, alleged to have occurred on June 17, 2007”:

Although the government's theory is not entirely clear, it appears, based on the discovery produced to date, that the government's theory regarding Count 3 is that co-defendants Arturo Garcia and Benjamin Clark ordered that Freddie Sanchez be killed, that co-defendant Ruben Hernandez assisted in the homicide by covering security cameras, and that co-defendants Edward Troup and Javier Alonso killed Freddie Sanchez. It must be reiterated that this seems to be the government's theory; however, discovery has been produced which directly contradicts the government's presumed theory.

         Count 3 Response at 2-3. The Count 3 Response then joins the Motion to Sever, primarily because the Count 3 conduct is alleged to have occurred almost seven years before the Counts 6 and 7 conduct. See Count 3 Response at 3. Further, the Count 3 Response argues that “the factor that allegedly unites the Count 3, 6 and 7 defendants, i.e. SNM membership and participation in alleged gang activity, was not present in March of 2014, ” when at least one of the Count 3 defendants (Javier Alonso) had renounced any association with the SNM and the other active Count 3 defendants (Edward Troup and Arturo Garcia) were not even in the custody of the New Mexico Department of Corrections” during the time period of the Counts 6 and 7 conduct. Count 3 Response at 3-4. For clarity, the Count 3 Response concludes by stating: “Undersigned counsel attempted to confer with co-defendants Clark and Hernandez to determine their position regarding this motion. Counsel for co-defendant Clark indicated that they take no position. Counsel for co-defendant Hernandez did not respond.” Count 3 Response at 4.

         3. The Count 1 and 2 Defendants' Response.

         “Defendants Joe Gallegos, Edward Troup, Leonard Lujan, Billy Garcia, Allen Patterson, and Christopher Chavez, by and through their attorneys, ” also have submitted a response to the Motion to Sever. See Response of Certain Count 1 and 2 Defendants to Joint Motion to Sever Defendants Charged with Offenses in Counts 6 and 7, filed January 6, 2017 (Doc. 813)(“Count 1 and 2 Response”). The Count 1 and 2 Response first posits, for Counts 1 and 2:

It appears based on the discovery produced to date, that the government's theory is that the two murders, which occurred on the same day in 2001, were orchestrated by Defendant Billy Garcia. The government's theory is that Mr. Garcia was the “shot caller” for the SNM gang for the period of time encompassing Counts 1 and 2 of the Superseding Indictment. The government asserts that Mr. Garcia, acting on orders of those higher up in the SNM, orchestrated the murder of both victims by ordering co-defendant Leonard Lujan to arrange for the murders. The government's theory is that Mr. Lujan then arranged for two teams to carry out the murders of Frank Castillo and Rolando Garza on March 26, 2001. The government alleges that the first team was comprised of Defendants Angel DeLeon, Joe Lawrence Gallegos, and Edward Troup and that the second team was comprised of Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez. It must be reiterated that this seems to be the government's theory; however, discovery has been produced which directly contradicts this theory.

         Count 1 and 2 Response at 1-2. The Count 1 and 2 Response then states that, with respect to the March, 2014, incident date range for the conduct underlying Counts 6 and 7,

Counts 1 and 2 Defendants Angel DeLeon, Edward Troup, Billy Garcia, Eugene Martinez, Christopher Chavez, Allen Patterson were not even in the custody of the New Mexico Department of Corrections on March 7, 2014. Accordingly, the factor that allegedly unites the Count 1, 2, 6 and 7 defendants, i.e. SNM membership and participation in alleged gang activity, was not present in March of 2014.

         Count 1 and 2 Response at 3. The Count 1 and 2 Response thus agrees that

joinder of Counts 1, 2, 6 and 7 will significantly complicate and lengthen any trial and that consideration of Federal Rules of Criminal Procedure 8 and 14 counsels in favor of severance. The Counts 1 and 2 Defendants adopt the arguments in the Joint Motion to Sever Counts 6 and 7 and accordingly join in the request to sever Counts 1, 2, 6, and 7.

         Count 1 and 2 Response at 3. For clarity, the Count 1 and 2 Response explains that “Counsel for Eugene Martinez takes no position” on the Count 1 and 2 Response. Count 1 and 2 Response at 3.

         4. The United States' Response.

         The United States responded to the Motion to Sever with the United States' Response in Opposition to the Joint Motion to Sever Defendants Charged with Offenses in Counts 6 and 7 [807], filed January 20, 2017 (Doc. 836)(“United States' Response”). Ultimately, the United States Response takes the position that the

Defendants' contention in the Joint Motion to Sever . . . that Counts 6 and 7 are improperly joined under Rule 8(a) is mistaken, because Rule 8(a) . . . does not apply in cases where more than one defendant is joined in the same indictment. . . . Defendants' second contention that they are improperly joined under Rule 8(b) also fails to find support in the law or the facts, because courts construe Rule 8(b) generally to allow for joint trials where the charges overlap factually, and because the different defendants in the different counts are all based on SNM's criminal activities is particularly logical here, given that the SNM operates as a gang within the New Mexico prison system where the incarcerated leaders cannot move freely and thus use separate SNM members or associates to carry on the SNM enterprise's business -- murders, assaults and assaults with deadly weapons. Finally, given the reality that SNM's operations necessarily require that different leaders and members located within and without the different prisons still carry on the SNM's criminal enterprise, and because the nature of the charges require that the United States prove as an element that the SNM is a racketeering enterprise, neither Rule 14 nor the United States Constitution require or support severance of Counts 6 and 7.

         United States Response at 1-2 (internal quotation marks and citation omitted). The United States' Response then recaps much of the same facts from the Superseding Indictment which the Court has provided in its Factual Background and then provides its recitation of the applicable law. See United States' Response at 2-4. Here, the United States contends first that “Federal Rule of Criminal Procedure 8 describes two tests for joinder.” United States' Response at 5.

Rule 8(a) specifically provid[es] that “a single defendant” may be charged with two or more offenses “if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Rule 8(b) provid[es] that “two or more defendants” may be charged “if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”

         United States' Response at 5-6 (internal citations omitted). The United States then argues that only rule 8(b) applies when “more than one defendant is joined in the same indictment, ” United States' Response at 6 (citing United States v. Riebold, 557 F.2d 697, 707 (10th Cir. 1977)), and under rule 8(b), “joinder of offenses among multiple defendants was appropriate . . . where a ‘number of common threads and much common evidence connecting offenses charged in the indictment'” existed, United States' Response at 6 (quoting United States v. Caldwell, 560 F.3d 1214, 1212 (10th Cir 2009)).

         Turning then to the Motion to Sever's argument that the “United States has not alleged that [Counts 6 and 7] Defendants participated in the same series of acts or transactions with the other defendants charged, ” the United States argues that it “explicitly alleges” all Defendants participated in the “same predicate acts as the other Defendants.” United States' Response at 6- 7. The United States contends that those allegations are sufficient, because “the Supreme Court unanimously held that, to be found guilty of a conspiracy to commit a RICO violation, a defendant need not personally commit or agree to commit two predicate acts of racketeering.” United States' Response at 6-7 (citing United States v. Salinas, 522 U.S. 52, 64 (1997)(“The RICO conspiracy statute, §1962(d), broadened conspiracy coverage by omitting the requirement of an overt act; it did not, at the same time, work the radical change of requiring the Government to prove each conspirator agreed that he would be the one to commit two predicate acts.”)). Further, the United States maintains that rule 8(b) “permits joinder of defendants in a single indictment where the defendants participated in the same series of acts or transactions constituting an offense. The rule does not condition joinder upon whether the defendants conspired with each defendant to commit the offenses.” United States' Response at 8.

         Next, the United States addresses the Motion to Sever's argument that “the crimes alleged in Counts 6 and 7 are not connected to the other defendants, ” and asserts that the United States “provided evidence demonstrating that the crimes alleged are connected” to those of all of the other defendants. United States' Response at 8. The Motion to Sever's argument, the United States contends, “cannot logically be correct because it circumvents the essential framework of the RICO Act and VICAR statute. If it were true that such defendants cannot be charged together, this would preclude multi-defendant RICO trials. That simply cannot be true.” United States' Response at 8. Indeed, the United States maintains that rule 8(b)'s language permitting joinder for the “same series of acts or transactions . . . is construed broadly to allow liberal joinder to enhance the efficiency of the judicial system.” United States' Response at 8. The United States thus argues that, under “RICO, the requirements of Rule 8(b) are satisfied when each defendant participated in the affairs of the same enterprise through the commission of the alleged predicate racketeering acts, ” United States' Response at 9, and, further, “[a]s is the case under RICO, the requirements for joinder of defendants under VICAR may be satisfied by establishing the existence of an enterprise, and that the defendants' charged crimes related to the affairs of the same enterprise.” United States' Response at 10. In sum, regarding rule 8(b) as it applies to this case, the United States explains:

The United States alleges that the SNM gang is a criminal enterprise within the meaning of RICO and VICAR, that Defendants are members of the gang. The grand jury found probable cause supports those allegations. The Defendants are charged in Counts 6 and 7 with predicate racketeering offenses -- conspiracy to murder, and murder -- relating to the affairs of the SNM enterprise. Given the abundance of case law pertaining to joinder of defendants in RICO and VICAR cases, joinder of Defendants in Counts 6 and 7 is clearly proper under Rule 8(b) . . . .

         United States' Response at 10-11.

         The United States Response next addresses the Motion to Sever's contention that “Counts 6 and 7 should be severed under Federal Rule of Criminal Procedure 14 because a joint trial of all defendants is impractical, and evidence against other defendants charged in the Superseding Indictment will prejudice the Defendants charged in these counts.” United States Response at 11. According to the United States, the Defendants “fail to satisfy the first prong of severance inquiry, ” wherein the Court must “determine whether the defenses presented are so antagonistic that they are mutually exclusive.” United States' Response at 11. Here, the United States argues:

In reality, as Defendants admit, it is unclear at this point whether the 30 defendants' defenses are so antagonistic as to be mutually exclusive. . . . The Rule 14 inquiry requires the Court to find not only that the defenses are antagonistic, but that they are “mutually exclusive.”. . . Defendants fail to provide any basis at this point on which the Court may determine that joinder of defendants or offenses would result in the type of prejudice that Rule 14 requires to warrant severance.

         United States' Response at 12-13. The United States also argues that the “Defendants fail to satisfy the second prong of severance inquiry, ” wherein the Court “must next determine whether relief is available based on a serious risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence, ” because: (i) there is “no serious risk that a joint trial will prevent the jury from making a reliable judgment about guilt or innocence”; (ii) there is “no serious risk that joinder will compromise Sixth Amendment trial right”; and (iii) there is “no serious risk that joinder will compromise Fifth Amendment trial right.” United States' Response at 13-21. Specifically, the United States contends that the Defendants are “not entitled to severance merely because they may have a better chance of acquittal in separate trials, ” and that prejudice “always exists when more than one defendant or offense are tried together, ” “[b]ut even where a defendant may show such specific and compelling prejudice, both the Supreme Court and the Tenth Circuit routinely have rejected defendants' complaints of prejudicial spillover effect where limiting instructions may minimize the risk of undue prejudice.” United States' Response at 13-14. The United States then shrugs off the Motion to Sever's argument that the case's complexity and magnitude would render a limiting instruction ineffective, because the Tenth Circuit and the Supreme Court counsel otherwise. See United States' Response at 14.

         The United States also provides:

[I]n the unique circumstances that the Superseding Indictment alleges, these murders, conspiracies to murder and other violent crimes that involve the various SNM member Defendants are res gestae of the SNM's racketeering “enterprise.”. . . Unlike a generic drug-trafficking conspiracy (even a large one), and unlike an organized crime family, the SNM's criminal enterprise operates within the confines of the New Mexico prison system, in which the leaders and the members are not at liberty to travel freely to perpetrate their crimes. . . . Also locked up in different prison facilities at different locations throughout New Mexico are the victims and targets of the SNM enterprise, including J.M. Thus, unlike the unconstrained criminals in a drug-trafficking conspiracy or an organized crime family, in this case, only SNM members within the particular prison at which the targeted victim resides may carry out the “hit.” It is therefore logical, and unsurprising, that different SNM members are alleged to have carried out the SNM's crimes that took place at different locations where the different victims were housed.

         United States' Response at 16. Complexity notwithstanding, the United States then maintains that “courts routinely have found that juries can and do follow jury instructions in complex RICO and VICAR cases, and that jury instructions are an effective mechanism for granting relief where prejudice may arise.” United States' Response at 17. Regarding the Defendants' Sixth Amendment trial rights and the Motion to Sever's argument that the courtroom is inherently not conducive to maintenance of that right, the United States next contends that “the hearings have worked fine just far, and there is no reason to believe that will change.” United States' Response at 19. Then, regarding the Defendants' Fifth Amendment trial rights, and the Motion to Sever's argument that “joinder will prejudice their right to a fair trial because they have been charged with VICAR offenses alongside other Defendants charged with other crimes, ” the United States argues that the “Defendants fail to specify how joinder would compromise their right to a fair trial. But, more than that, they fail to acknowledge that, given the nature of the VICAR charges in Counts 6 and 7, severance would not even cure the prejudice theory they contend may exist.” United States' Response at 19. Although the Defendants in the Motion to Sever harp on the notion of spillover prejudice across the counts, the United States maintains:

VICAR is a properly enacted statute that Congress saw fit to enact to prevent the exact activity alleged in the Superseding Indictment: violent crimes such as murders perpetrated by individuals who join in a racketeering enterprise such as SNM. Second, by charging this murder and conspiracy to murder as VICAR violations, the United States placed additional burdens on itself: to prove that the SNM is an enterprise, engages in racketeering activities, and that this murder and conspiracy to murder were committed by the Defendants to receive pecuniary value from SNM or to gain entry to, or to maintain or increase position in, SNM. To the extent that Defendants complain about the additional evidence that's admissible in a VICAR case such as this, they conveniently omit from their Motion to Sever that they receive a huge benefit: if the United States fails to prove any one of these additional elements beyond a reasonable doubt, they will be found not guilty of the VICAR crimes with which they're charged.

         United States' Response at 21.

         Turning to the “third prong” of the severance inquiry, the United States again asserts that the Motion to Sever fails to establish the prong's requirements. United States' Response at 22.

         The United States explains that the Motion to Sever contends that “Counts 6 and 7 would best serve the interest of the Court and the jury by (1) permitting the Court greater flexibility in scheduling matters; (2) facilitating jury selection for fewer defendants; and (3) relieving jury members of jury service for inordinate stretches of time.” United States' Response at 22 (internal quotation marks omitted). The United States, then, downplays the burden on the Court and the parties of the joint trial, primarily by arguing that “juries are capable of handling complex litigation.” United States' Response at 23. The United States, in sum, objects to severance of the Counts 6 and 7. See United States' Response at 23.

         5. The Supplemental Pleading.

         M. Rodriguez replied to the United States' Response with Defendant Mario Rodriguez' Supplemental Filing in Support of Motion for Severance of Counts 6 and 7; and Motion to Join, filed January 24, 2017 (Doc. 845)(“Supplemental Pleading”). The Supplemental Pleading first states:

Mr. Rodriguez is charged in Counts 6 and 7, and no other Counts. By this pleading, he moves to join the severance request of all other Count 6 and 7 defendants (dkt. 807). We also set forth the following supplemental points and authorities, to more fully advance the concept of the Court's inherent authority on this issue (even absent a showing of prejudice), and to briefly respond to several matters contained in the Government's Response.

         Supplemental Pleading at 2-3. The Supplemental Pleading implores that “the traditional factors which establish a judicial preference for joint trials are inapplicable here, ” because “due to the unique facts and circumstances of this case, and the nature of the requested severance, neither of these traditional justifications weigh in the Government's favor, regardless of whether or not prejudice otherwise exists.” Supplemental Pleading at 3. Indeed, the Supplemental Pleading emphasizes:

The Government ignores the significance of the fact that the instant severance only involves those Defendants charged in Counts 6 and 7, to wit: the 2014 J.M. murder. Accordingly, there can be no ‘scandal and inequity of inconsistent verdicts' as a result of the requested severance, since all those so charged will be tried together.

         Supplemental Pleading at 3.

         The Supplemental Pleading next suggests that, “[a]lthough traditional Rule 8 and Rule 14 considerations are certainly always applicable, [c]ases have been severed in which there is no mention of prejudice to the prosecution or to the defendants.” Supplemental Pleading at 4 (internal quotation marks omitted). The support for such severance, according to the Supplemental Pleading, comes from “the court's inherent authority to manage its case load and to sever in the interest of efficient administration of justice and judicial economy.” Supplemental Pleading at 4 (citing United States v. Bundy, 2016 U.S. Dist. LEXIS 172868 (D. Nev. 2016)(“Courts have the inherent authority to manage their docket by severing large groups of defendants into more manageable groups.”)). The Supplemental Pleading then alerts the Court to the failure of the United States to recognize the Court's power in this regard. See Supplemental Pleading at 5-8.

         Turning then to the issue of “public trial considerations, ” the Supplemental Pleading asserts that there “is a realistic danger that Defendants' Sixth Amendment right to a public trial (among other rights) may be violated.” Supplemental Pleading at 8. That is the case, according to the Supplemental Pleading, because, “[t]o whatever extent the Las Cruces Federal Courthouse has difficulty physically accommodating a complex, multi-defendant trial with this many participants and required spectators, the Defendants' public trial rights are implicated.” Supplemental Pleading at 9. The Supplemental Pleading then concludes with a block quote regarding an opinion out of the United States District Court for the District of Nevada:

[Chief Judge Reed's] . . . decision thoughtfully reviewed and considered the difficulties of a joint trial in a complex multi-defendant case. The decision pointed out that a complex multi-defendant case is “fraught with problems.” He recognized that a single trial of a complex multi-defendant case imposes enormous burdens on the defendants, defense counsel, prosecutors, jurors, the court, and the judge. Dozens of people are required to be in court every day. Therefore, the absence of any one person may bring the entire trial to a screeching halt. Complex multi-defendant cases involve reconciling the individual calendars of the prosecutors and each defense attorney with the court's docket. Attorneys carrying a full case load have conflicts with other trials, and the longer the case lingers, the more pronounced these conflicts become. Judge Reed noted that a lengthy trial of multiple defendants creates a unique hardship on each party involved. Jurors spend months away from their daily lives, defendants are required to endure months of pretrial incarceration before their case is finally adjudicated, and often significant amounts of time-consuming evidence are presented which are unrelated to a particular defendant. Attorneys are unable to spend significant time on their remaining cases. The court is forced to expend an exorbitant amount of time on a single case, and other litigants must “queue up for the remaining courtrooms.” The result is a strain on the court's docket and unconscionable delays of all other cases. Mancuso also recognized the personal strain on the trial judge in a long complex case. The trial court is required to make rulings as issues come up which often require frequent adjournments necessitated by unavoidable problems associated with multiple jurors, multiple defendants, and their counsel as well as the witnesses and courtroom personnel who are required to be present at all times.

         Supplemental Pleading at 11 (quoting United States v. Bundy, 2016 U.S. Dist. LEXIS 172868 (citations omitted)).

         6. Gonzales' Motion to Sever.

         Gonzales filed his Amended Motion to Sever on February 5, 2017, and readopted Gonzales' Motion to Sever in full and further addressed Gonzales' speedy trial rights. See Gonzales' Amended Motion to Sever at 1 n.1. The Court addresses Gonzales' severance arguments in the context of Gonzales' Amended Motion to Sever, because it is difficult to consider Gonzales' Motion to Sever in a vacuum.

         7. A. Gallegos' Motion to Sever.

         A. Gallegos and J. Gallegos submitted A. Gallegos' Motion to Sever, with A. Gallegos stating:

Andrew Gallegos, who is not charged elsewhere in the superseding indictment, respectfully request[s] that this Court sever Counts 4 and 5 from trial of the other counts in the superseding indictment. Although, Defendant Joe Gallegos is also charged in counts 1, 13, 14 and 15 . . . he join[]s in this Motion because the offenses alleged in these other counts involve other different defendants, and occurred in different locations, three to four years after the alleged AB murder, and with respect to count 1, twelve years before the alleged AB murder. Furthermore, none of these additional counts have any relationship to counts 4 and 5.

         A. Gallegos' Motion to Sever at 1-2. A. Gallegos argues:

(1) Counts 4 and 5 were improperly joined under Rule 8(b), as they are not alleged to have participated in the same act or transaction or in the same series of acts or transactions that constitute crimes as the 28 other defendants; and (2) should the Court find joinder proper under Rule 8, severance is still required under Rule 14 and the Fifth Amendment because a joint trial of the two Defendants for Counts 4 and 5 alongside the 28 other defendants and the 13 other counts in the superseding indictment will deprive the Gallegos Defendants of their right to a fair trial, especially given that only a small portion of the evidence in the trial of all the defendants would be relevant to Counts 4 and 5.

         A. Gallegos' Motion to Sever at 2. A. Gallegos also asserts that “judicial efficiency and economy supports severance, as a trial of all 24 Defendants on all 15 counts would last considerably longer given the number of defendants and the span of decades between many of the allegations.” A. Gallegos' Motion to Sever at 2. A. Gallegos also contends that

a joint trial would be logistically impractical because all defendants and their counsel may not even fit in the courtroom during the trial. These logistical limitations alone implicate the Defendants' right to confront witnesses, be present at all critical stages of the trial and to have a public trial under the Sixth Amendment.

         A. Gallegos' Motion to Sever at 2. After recapping an extensive factual background of the case similar to that which the Court has provided in this Memorandum Opinion and Order, the Motion to Sever primarily elaborates on the nature of Counts 4 and 5, “conspiracy to murder and murder of Adrian Burns (AB).” A. Gallegos' Motion to Sever at 2-3.

         According to A. Gallegos, the Superseding Indictment provides that “Joe and his younger brother, Andrew Gallegos, conspired to and did murder AB on or about November 12, 2012, in Socorro and Valencia counties.” A. Gallegos' Motion to Sever at 4. A. Gallegos provides, however:

Although the basis for Counts 4 and 5 are not precisely clear, it is believed the government's theory of the case is, in part, that Defendants Joe and Andrew Gallegos were allegedly low level members of the SNM who received orders from higher-up to kill AB. It is unspecified as to who specifically gave the kill-order or as to when, where, or how exactly the order came down. At the time of the murder, AB is alleged to have been the Gallegos Defendants' drug supplier and possible rival of the SNM. The Gallegos Defendants, who deny membership with the SNM, are alleged to have tortured and killed AB to gain membership or status with the SNM. AB's body (shot, gasoline doused and burnt) was found in the Bosque with his vehicle, just outside of Socorro County.

         A. Gallegos' Motion to Sever at 4. According to A. Gallegos, he and J. Gallegos are

alleged to have been the last people to see AB alive at his home in Los Lunas, N.M., where he was first shot and killed. Some hours after his death, the Gallegos Defendants were said to have been seen in public with blood and pinhole burnt marks on their clothes.

         A. Gallegos' Motion to Sever at 4. These facts, A. Gallegos explains, resulted in

the State of New Mexico, by the Third Judicial District Attorney's Office in Socorro County, charg[ing] Defendants Joe and Andrew Gallegos in County Magistrate Court (Docket No: M-52-FR-2012-00230) with the murder of AB, along with several other related charges. The case was investigated by the New Mexico State Police (NMSP), who later arrested the Gallegos Defendants for the murder of AB on November 20, 2012 in Albuquerque, New Mexico. Upon information and belief, two subsequent DNA tests of the blood found on their clothing was determined to be non-human. The burnt marks on their clothes were also tested and determined to be non-gasoline related. The Gallegos Defendants have asserted all along that the blood came from the roasting of a pig during a birthday celebration the night that they were seen in public, and that the burnt marks were likely from the party or from welding jobs that the brothers often did for spare cash.

         A. Gallegos' Motion to Sever at 3-4. The State of New Mexico, on December 14, 2012, according to A. Gallegos, “filed a Nolle Prosequi for both defendants indicating insufficient evidence to proceed.” A. Gallegos' Motion to Sever at 5. A. Gallegos thus provides and argues:

Three years later, the first indictment in this federal cause was filed. . . . Andrew Gallegos and the AB murder were not included in these counts until the superseding indictment was filed on April 21, 2016. . . . The other counts in the superseding indictment, except Counts 6 and 7 did not have a parallel state prosecution. Furthermore, the AB murder, unlike most of the alleged murders in the Superseding Indictment, occurred outside of prison and was allegedly committed for profit and not retaliatory reasons. Upon information and belief, there were no witnesses to the murder or specific, concrete evidence, including DNA, that directly links the Gallegos Defendants to this murder, the murder scene, or to the location where AB's body was found.

         A. Gallegos' Motion to Sever at 5.

         A. Gallegos then argues that “[t]he Gallegos Defendants must be severed, as their joinder with other 21 defendants under Rule 8(b) is improper and sets a dangerous precedent for infinite joinders.” A. Gallegos' Motion to Sever at 9. A. Gallegos relies on Zafiro v. United States, 506 U.S. at 537, arguing, “[i]n Zafiro, the Supreme Court stated that joinder under Rule 8(b) ‘serve[s] the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.' 506 U.S. at 537. This possibility of scandal and inequity, however, is not a risk in this case.” A. Gallegos' Motion to Sever at 9. A. Gallegos explains:

In short, there is no evidence that the crimes alleged in Counts 4 and 5 were part of a series of acts or transactions. Even in the most favorable light, the indictment alleges that, out of the two Defendants in Counts 4 and 5, only Joe Gallegos is alleged to have participated in any of the other counts. Also, there is no evidence of a transactional nexus between the Gallegos Defendants named in Counts 4 and 5 and any of the other defendants or other counts. There is no evidence that the Gallegos Defendants and other defendants participated in a series of acts or transactions despite the fact that the government has actively investigated these defendants for more than four years with the help of cooperating witnesses, confidential informants, and call and mail monitoring.

         A. Gallegos' Motion to Sever at 10. The risk of an inconsistent verdict -- should the Court sever Counts 4 and 5 -- does not exist, A. Gallegos argues, because “Counts 4 and 5 only involve the Gallegos Defendants, and are discrete and not connected to any of the other defendants, [and] joinder of the Gallegos Defendants is improper under Rule 8(b).” A. Gallegos' Motion to Sever at 10. Additionally, A. Gallegos argues, although “[t]he government claims that the purpose of the offenses as well as the means and methods of the SNM constitute racketeering activity as defined in 18 U.S.C. §§ 1959(b)(1) and 1961(1), ” and “[t]he government further claim[s] that proof of a ‘common purpose' is sufficient to bring a group of people under RICO, ” “the government should not be allowed to simply use the umbrella of RICO to join every alleged SNM crime by simply alleging that the offense shared a common purpose. This would create a slippery slope that this Court, as a public policy matter, should view with great caution.” A. Gallegos' Motion to Sever at 10-11.

         A. Gallegos alternatively argues that “[C]ounts 4 and 5 should be severed under Rule 14, as the evidence of other murders, assaults, and conspiracy by SNM members will prejudice the Gallegos Defendants, and a joint trial of all defendants on all counts is impractical.” A. Gallegos' Motion to Sever at 11. A. Gallegos relies on the Court's recitation of its rule 14 analysis in United States v. Gould, 2007 WL 1302587, at *2, to argue that the Court should consider in his case “whether the defenses presented are so antagonistic that they are mutually exclusive, ” whether he has shown “a serious risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence, ” and whether the Court should then “exercise[] its discretion and weigh[] the prejudice to a particular defendant caused by joinder against the obviously important considerations of economy and expedition in judicial administration.” A. Gallegos' Motion to Sever at 11-12. A. Gallegos then points to

United States v. Hardwell, [where] the Tenth Circuit held that joinder under Rule 8(b) was not proper when six co-defendants were all charged with conspiracy, money laundering, and possession of cocaine with intent to distribute. 80 F.3d 1471 (10th Cir. 1996), on reh'g in part, United States v. Hardwell, 88 F.3d 897 (10th Cir. 1996).

         A. Gallegos' Motion to Sever at 12. A. Gallegos argues that, in United States v. Hardwell,

[t]he Tenth Circuit explained that severance was not necessary, in part, because the “conspiracy was to commit a single offense; there were only six defendants, all charged with the [one] conspiracy” and there was not a great disparity in culpability among the defendants. . . . In reaching this decision, the court directly contrasted Hardwell, with United States v. Gallo, 668 F.Supp. 736 (E.D.N.Y. 1987), a RICO case where severance was granted because it is substantially more complex than Hardwell, and remarkably similar to the case at hand.

         A. Gallegos' Motion to Sever at 12. A. Gallegos then discusses United States v. Gallo, where “the District Court granted the defendants' motion for severance under Rule 14 and separated a 22-count RICO indictment charging 16 defendants into 7 separate trials, ” because:

Although the court determined that the defendants were properly joined under Rule 8(b), it held that severance was required under Rule 14 after considering the prejudice resulting from: (1) the complexity of the indictment; (2) the disproportionality of evidence; (3) whether there is an antagonism of defense strategies and theories; (4) whether there is evidence only admissible as to some defendants; (5) the potential inadequacy of limiting instructions; and (6) the balancing requirements of Rule 14 including the deleterious effect of prolonged complex cases, and whether granting a severance saves time.

         A. Gallegos' Motion to Sever at 12-13. In particular, A. Gallegos notes the United States v. Gallo court's decision that the RICO indictment in that case was a complex RICO conspiracy, the jury would need to work hard to keep the legal and factual elements in perspective, and some defendants were less culpable than the others. See A. Gallegos' Motion to Sever at 13-14. A. Gallegos also notes that, in United States v. Gallo, the court concluded there was a likelihood of frequent instances in which “evidence admitted against one defendant would also be relevant as to another under Rule 401, but would be excluded as to the latter under Rule 403 in a separate trial of that defendant alone because its probative value would be outweighed by the danger of unfair prejudice, ” and also discussed how

the indictment charged a central RICO conspiracy, numerous other conspiracies in the substantive counts and the predicates acts and potential uncharged conspiracies, the result would be “conspiracies within conspiracies, and conspiracies to conceal other conspiracies, conspiracies which are discrete and finite, and those which are amorphous and indefinite, involving conspirators joining and leaving the conspiracy at various times.” . . . Meaning that in such a complex trial, “[a]dmissibility decisions will often depend on having faith in the jury's ability to heed extraordinarily intricate limiting instructions” which “[o]ver the course of several months . . . would virtually be impossible without the aid of a computer” given the number of the co-defendants and counts.

         A. Gallegos' Motion to Sever at 14. Specifically, A. Gallegos then provides that, in “[c]onsidering the balancing requirement of Rule 14, the court noted that ‘[t]rials in these “monster” cases' ‘create an enormous burden on the courts, as well as on the defendants, the defense bar, juror, and even prosecutors.'” A. Gallegos' Motion to Sever at 15. Indeed, A. Gallegos references United States v. Gallo's conclusion that

the overall trial time was probably diminished in the Gallo case by splitting up the trials . . . because the trial would be smoother and more concise . . . evidence in each case does not scatter about the various contours of the conspiracy . . . there are two or three defense counsel cross-examining and raising objections rather than one or two dozen . . . sidebars are much more infrequent . . . and continuances and adjournments are less common.

         A. Gallegos' Motion to Sever at 16 (internal quotation marks and citation omitted). A. Gallegos then draws comparisons between this SNM case and United States v. Gallo, suggesting:

Like Gallo, this case deals with a complex RICO indictment spanning decades' worth of criminal allegations. In fact, this Court declared it complex on January 7, 2016, even before the government unsealed the April 21, 2016, superseding indictment. . . . Also similar to Gallo is the disproportionality of the evidence in relation to the 30 defendants charged. A review of the discovery to date demonstrates that the government has revealed far more and far stronger evidence against some co-defendants, including audio-recorded conversations and self-incriminating statements, than against others. Accordingly, “[i]nevitable prejudice to the peripheral defendants is caused by the slow but inexorable accumulation of evidence against the major players.” . . . To date, the government has only presented rumor, conjectures and circumstantial evidence as to the guilt of the Gallegos Defendants, which is not only substantially weaker evidence when compared to the evidence against most of the other defendants, but is clearly indicative of the government relying on the principle of “guilt by association” to prove their case in counts 4 and 5.

         A. Gallegos' Motion to Sever at 16-17. Further, although A. Gallegos concedes that “it is unclear at this point whether the 30 defendants' defenses are so antagonistic as to be mutually exclusive, ” he contends “there can be no doubt that there will be antagonistic defenses. For instance, many defendants may argue they were not or are not SNM members. Other defendants will likely argue the alleged crimes were not done in furtherance of the SNM.” A. Gallegos' Motion to Sever at 17.

         Ultimately, A. Gallegos reiterates that the risk of prejudice in this case is great, given the different nature of all of the Counts, and that in particular -- for him in Counts 4 and 5 -- the scant evidence against him will be bolstered by the appeal to guilt by association. See A. Gallegos' Motion to Sever at 17-18. A. Gallegos also reiterates that the nature of the Superseding Indictment limits the potential effectiveness of limiting instruction to the jury, stating that

if no severance is granted, the jury will hear about the other murders, conspiracies to commit murder (not of the same victims), a conspiracy to commit assault, assault, and an attempted murder plus the firearms charges, all allegedly in furtherance of the SNM. Simply hearing about this activity by alleged fellow gang members makes it unlikely the Gallegos Defendants can get a fair shake with the jury, even if a limiting instruction is given and even if the defendants present viable defenses.

         A. Gallegos' Motion to Sever at 18-19. A. Gallegos also notes that, regarding his constitutional right to a fair trial, “[e]ven the largest of the federal courtrooms in the District of New Mexico cannot adequately accommodate the trial, much less voir dire, if a severance is not granted.” A. Gallegos' Motion to Sever at 19-20. Here, A. Gallegos thus last contends that “severance of counts 4 and 5 is necessary to protect the Gallegos Defendants' respective rights to a fair trial under the Fifth Amendment.” A. Gallegos' Motion to Sever at 21. A. Gallegos concludes by stating that Gonzales, Lujan, and Sanchez join he and J. Gallegos in filing A. Gallegos' Motion to Sever, and that no other Defendants have opposed A. Gallegos' Motion to Sever.

         8. Troup's Motion to Sever.

         Troup and B. Garcia filed Troup's Motion to Sever, and were joined by “Defendants Andrew Gallegos, Christopher Chavez, A[r]turo Arnulfo Garcia, Rudy Perez, Daniel Sanchez, ” in their request to sever Counts 1 and 2. Troup's Motion to Sever at 1-2. Troup's Motion to Sever then explains the factual allegations underlying for Counts 1 and 2:

The 15-count superseding indictment in this case describes alleged activities involving [SNM], over a period of two decades and in regard to alleged criminal acts that occurred in varied locations. Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia are charged in Count 1 with a VICAR violation based on the substantive allegation that they knowingly and intentionally murdered Frank Castillo. . . . Defendants Leonard Lujan, Billy Garcia, Eugene Martinez, Allen Patterson, and Christopher Chavez are charged in Count 2 with a VICAR violation based on the substantive allegation that they knowingly and intentionally murdered Rolando Garza. . . . Counts 1 and 2 accuse these eight defendants (collectively, the “2001 Defendants”) of murdering Castillo and Garza on the same day (March 26, 2001), at [Southern New Mexico].

         Troup's Motion to Sever at 1-2. Troup's Motion to Sever makes five primary arguments, much of which are similar to those presented in A. Gallegos' Motion to Sever and the Motion to Sever:

(1) Counts 1 and 2 are remote in time from the remaining counts; (2) when the vast majority of the crimes alleged in the superseding indictment occurred, almost all of the 2001 defendants were living in the community at large and were not part of the prison system; (3) the allegations in Counts 1 and 2 are alleged to have been carried out by a different faction of the SNM than those alleged to have been committed in the other counts; (4) the introduction of evidence of the crimes in the other counts will unfairly prejudice the defendants indicted in Counts 1 and 2 in a manner which limiting instructions cannot cure; and (5) severance of Counts 1 and 2 would be in the interest of judicial economy and efficiency.

         Troup's Motion to Sever at 2-3. Ultimately, Troup's Motion to Sever contends “that a court determining whether to grant a motion to sever under Rule 14 must weigh the potential prejudice to the defendant against considerations of judicial economy and efficiency, ” and that “Federal Rule of Criminal Procedure 14(a) permits the trial court to conduct separate trials if the joinder of separate offenses appears to prejudice the defendant or the government.” Troup's Motion to Sever at 7. Troup's Motion to Sever states: “In most instances, fairness is pitted against judicial economy and the court must use its discretion to balance which valid consideration should prevail. This case presents no such dilemma . . . fairness and judicial economy both favor severance.” Troup's Motion to Sever at 8.

         Troup first argues that Counts 1 and 2 Defendants “will be unduly prejudiced by joinder, ” because “[e]vidence concerning Counts 9 and 10 will unfairly prejudice all other defendants.” Troup's Motion to Sever at 8. Specifically, Troup argues

that Counts 9 and 10 include allegations of a 2015 conspiracy to murder two corrections officials in the community, as opposed to violence by inmates against inmates within the confined walls of the prison system. Those crimes are different in nature and character, and will undoubtedly cause fear in citizen jurors.

         Troup's Motion to Sever at 8. Indeed, Troup provides:

A review of the indictment's paragraphs 3-13 does not reveal that attacking corrections officers was ever a goal or purpose in the formation or operation of the SNM. Any and all defendants not charged in counts 9 and 10 would suffer unfair prejudice if joined with Counts 9 and 10.

         Troup's Motion to Sever at 8. Troup also argues that “[t]here exists a disparity in the quality and quantity of evidence, which creates antagonistic defenses, ” and that “[t]he allegations in the superseding indictment are not related to a single criminal enterprise, but rather describe several distinct and different criminal enterprises.” Troup's Motion to Sever at 8-9. Essentially, Troup argues that SNM has divided and fractured in such a fashion as to extinguish any ties amongst the Counts 1 and 2 Defendants, and those alleged SNM members in the other counts. See Troup's Motion to Sever at 9-12. In considering whether there are multiple criminal enterprises, Troup relies on the factors United States v. Woods, 1985 U.S. Dist. LEXIS 16113, at *22-23 (D. Conn. 1985), sets forth, which are:

(1) the criminal offenses charged in the indictments; (2) the participants of the conspiracies; (3) the dates between which the conspiracies took place; (4) the methods of operation; (5) overt acts done in furtherance of the conspiracies; (6) the geographic scope of the purported conspiracies or locations where the overt acts occurred; (7) the extent to which the purported conspiracies share a common objective; and (8) the degree of interdependence between the purported conspiracies.

         Troup's Motion to Sever at 10. Troup then explains that the distinct SNM factions from which the Defendants named in the Superseding Indictment are alleged to associate are the “All Stars, ” the “Old Timers, ” and the “Rejects, ” all of whom Troup argues do not interact. Troup's Motion to Sever at 11. In fact, Troup provides:

The question of whether this is one criminal enterprise or several different criminal enterprises is a question of fact to be determined by this Court in analyzing whether the counts should remain joined or severed. The government's entire basis for joinder rests on the premise that the SNM is a single criminal enterprise. The facts belie this notion. The SNM is an umbrella name for a group of individuals, much like the name Crips is a name used by various street gangs. Just like a Crips gang in one part of Los Angeles may not be the same criminal enterprise as another Crips gang in Los Angeles -- where they share nothing more than a generalized camaraderie -- the SNM factions often operated independently from each other and, indeed, counter to each other. To say they shared similar illegal goals is not to say they are the same criminal enterprise. The All Stars, for example, wanted to exterminate the Old Timers and wanted to take over the New Mexico prison system.

         Troup's Motion to Sever at 12-13. Accordingly, Troup argues, “[a]pplying the Woods factors to these facts leads inescapably to the conclusion that the superseding indictment in reality alleges separate enterprises.” Troup's Motion to Sever at 13-14.

         Troup next appeals to rule 14, and the Court's decision in United States v. Gould, in regard to severance of the Superseding Indictment for efficiency's sake. See Troup's Motion to Sever at 14. Troup first reiterates that there will be no risk of inconsistent verdicts if the Court severs Counts 1 and 2, because Troup is not “requesting severance of defendants within a single criminal episode, ” but instead requests severance of the entire Counts 1 and 2. Troup's Motion to Sever at 14. Indeed, “[e]fficiency, in the unique circumstances presented in this case, favors severance, ” Troup argues, and “[t]he cost of a joint trial versus four separate trials cannot be ignored.” Troup's Motion to Sever at 14-15. Troup then extrapolates on the costs and burden of a joint trial, estimating that a joint trial of the twenty Defendants left in the case at the time he filed his motion would result in compensation for all defense counsel's time, lodging, meals, and travel, in the amount of $3, 236, 309.00. See Troup's Motion to Sever at 15-20. In the alternative, Troup provides that the compensation for all defense counsel's time, lodging, meals, and travel, should the Court -- for example -- choose to sever the Counts into five distinct trials, would be in the amount of $1, 125, 635.72 -- a considerably smaller burden on the taxpayer's dollars. See Troup's Motion to Sever at 20. The difference, ostensibly, is a result of more manageable trials which proceed faster -- or not at all, after Defendants have seen the outcome of one or more of the trials. See Troup's Motion to Sever at 16-19.

         Troup last argues that “a joint trial would involve the introduction of innumerable statements and items of evidence inadmissible against the 2001 Defendants, and limiting instructions would not suffice to cure the resulting prejudice.” Troup's Motion to Sever at 20. Essentially, Troup contends, “counts 3-15 involve conspiracies to commit crimes that do not involve Defendants Billy Garcia, Lujan, Eugene Martinez, Patterson, or Chavez. Counts 4-15 involve conspiracies that do not involve defendant Troup. That evidence is either irrelevant, inadmissible hearsay, or inadmissible testimonial statements, as to Counts 1 and 2.” Troup's Motion to Sever at 20. Troup then explains:

The government's argument is that all of the evidence is relevant against all defendants, as res gestae of the criminal enterprise. Assuming arguendo that the government gets beyond the relevancy hurdle via the res gestae exception, the evidence may still be inadmissible hearsay or a testimonial statement subject to a right of confrontation. The statements of co-defendants who will not testify will all be inadmissible against any defendant who was not a co-conspirator. It is well settled that the question whether a single conspiracy or multiple conspiracies exist is a question of fact for the trial court to determine.

         Troup's Motion to Sever at 20-21. Troup also rejects

[t]he government's plan in a joint trial . . . for the Court to utilize a litany of limiting instructions designed to isolate and constrain the jury's consideration of evidence to selected defendants[, because l]iterally, for all but two weeks of a two- to three-month trial, under the government's plan, the Court would be reading a limiting instruction on a continuing basis indicating the evidence is not admissible against defendants,

         which is untenable. Troup's Motion to Sever at 21 (“The variations of the instructions will mount in the dozens if not hundreds.”). Troup argues this method is impractical and supports severance, relying in part on United States v. Gallo, where the Court concluded the indictment in fourteen-defendant, twenty-two count RICO case was “far too extensive and intricate to expect that a jury would be able to discern the myriad of subtle distinctions and mental gyrations that would be required by the inevitable plethora of limiting instructions necessary.” Troup's Motion to Sever at 22. Specifically, Troup asserts that “[a] joint trial here would prevent the jury from making reliable judgments about guilt or innocence, from one defendant (or set of defendants) to the next.” Troup's Motion to Sever at 23 (citing Zafiro v. United States, 506 U.S. at 539). Troup also distinguishes the complex nature of this Superseding Indictment with cases in which courts determined jury instructions could cure the prejudice in a multi-defendant trial. See Troup's Motion to Sever at 23-25 (pointing, in particular, to United States v. Giampa, 904 F.Supp. 235 (D.N.J. 1995); United States v. Cervone, 907 F.2d 332 (2d Cir. 1990); and United States v. DiNome, 954 F.2d 839 (2d Cir. 1992), in which there was no severance, because “each of these cases involved participation in a common, consistent thread that bound the defendants directly to an identifiable, actual participant in the larger case”). Accordingly, Troup argues:

Under these circumstances -- unlike those in Giampa, Cervone, and DiNome --there exists a very real and very strong likelihood of a ‘spillover effect' from the more recent crimes alleged in the later counts onto the comparatively ancient crimes alleged in Counts 1 and 2 that involved separate participants, victims, methods, and locations.

         Troup's Motion to Sever at 24-25. Troup, in conclusion, alerts the Court that the Second Circuit “described [in] Cervone [that] a Rule 14 motion ‘is committed to the sound discretion of the trial court' and is ‘virtually unreviewable.'” Troup's Motion to Sever at 25.

         9. The Reply.

         Perez replied to the United States' Response with Defendant Perez's Reply to the Government's Response to Motion to Sever Defendants Charged with Offenses in Counts 6 and 7, filed February 3, 2017 (Doc. 887)(“Reply”). The Reply reiterates that “there is little doubt that severance is required under Rule 8 and Rule 14. The only question is how the Court should sever the entirety of the Superseding Indictment.” Reply at 2. The Reply notes, and the Court is cognizant of, the fact that other parties have sought severance of certain Counts of the Superseding Indictment, providing that: “Regardless of how the other counts and defendants should ultimately be tried, what remains clear is that the six remaining Defendants charged in Counts 6 and 7 should be tried separately from the remaining defendants and the remaining counts. This outcome is dictated both by Rule 8 and Rule 14.” Reply at 2. The Reply also argues that severance of Counts 6 and 7 is “dictated by judicial economy, both now and during trial.” Reply at 2. The Reply maintains:

The government's suggestion this Court should not sever because only a few defendants are likely to proceed to trial is misguided. This approach runs contrary to the interests of judicial economy and is also entirely contrary to the positions of the remaining Defendants. All six of the 2014 Defendants submit they will proceed to trial. The remaining Defendants in the remaining counts have indicated the same. While it is certainly possible some may plea, Defendants do not wish to rely on the government's clairvoyance.

         Reply at 3. The balance of the Reply restates the arguments in the Motion to Sever, in particular highlighting Perez' contention that “[s]imply alleging that the Defendants are members of the SNM does not demonstrate that the Defendants are connected and is insufficient to permit joinder.” Reply at 8. Further, according to Perez,

the mere fact that two conspiracies have overlapping memberships will not authorize a single indictment if the conspiracies cannot be tied together into one conspiracy, one common plan or scheme . . . [and h]ere, the United States did not charge a single overarching conspiracy because they could not. The facts simply do not provide sufficient overlapping to warrant it.

         Reply at 8. The Reply then mostly discusses the impact of this multi-count and multi-Defendant trial in Las Cruces on judicial economy and efficiency. See Reply at 8-14. Specifically, the Reply argues that “analyzing the cost-benefit of having separate trials in favor of one joint trial weighs heavily in favor of severance, ” an important factor Perez wishes to bring to the Court's attention. Reply at 15.

         10. Alonso's Motion to Sever.

         Alonso's Motion to Sever requests that the Court “sever Count 3 from all other counts of the Superseding Indictment. Within Count 3, Mr. Alonso further moves that his trial be severed from the trial of co-defendant Edward Troup.” Alonso's Motion to Sever at 1. In support of the motion, Alonso makes

three main arguments: (1) Count 3 was improperly joined under Rule 8(a), as Count 3 does not share a sufficient nexus with the other charges to permit joinder; (2) Javier Alonso was improperly joined under Rule 8(b), as he is not alleged to have participated in the same act or transaction or in the same series of acts or transactions that constitute crimes as the other defendants; and (3) should the Court find joinder proper under Rule 8(a) and Rule 8(b), severance is still required under Rule 14 and the Fifth Amendment because a joint trial of [] Mr. Alonso alongside the other remaining defendants and the 14 other counts in the Superseding Indictment will deprive him of his right to a fair trial. Additionally, severance of Count 3 will advance the interests of judicial economy because a joint trial on all counts would be substantially longer and logistically impractical given the number of defendants and the span of decades between many of the allegations.

         Alonso's Motion to Sever at 2. Regarding Count 3, Alonso provides:

Count 3 alleges that Edward Troup, Javier Alonso, Arturo Arnulfo Garcia, Benjamin Clark, and Ruben Hernandez, murdered Freddie Sanchez on June 17, 2007 at the Southern New Mexico [] in Las Cruces. Based on the discovery produced to date, it appears that the government's theory regarding Count 3 is that co-defendants Arturo Garcia and Benjamin Clark ordered that Freddie Sanchez be killed, that codefendant Ruben Hernandez assisted in the homicide by covering security cameras, and that co-defendants Edward Troup and Javier Alonso killed Freddie Sanchez. While defense counsel has attempted to discern the government's theory, discovery has been produced that contradicts the government's presumed theory.

         Alonso's Motion to Sever at 4.

         Alonso, then, first argues -- under rule 8 -- that joinder of the murder alleged in Count 3 is dissimilar in character to other Counts in the Superseding Indictment, in particular “Counts 11 and 12, ” and that there is “no evidence that the events underlying Count 3 are based on the same act or transaction as any of the other charges, ” making joinder inappropriate. Alonso's Motion to Sever at 8. Alonso thus contends joinder was inappropriate, because

Count 3 is simply not based on the same act or transaction as any other count in this case . . . [and] there is no evidence of any nexus between Count 3 and any other count in the Superseding Indictment. Count 3 is a discrete event, unconnected to any other count, unconnected to the other defendants, separated by many years from every other allegation in the case, and as a result not part of a common scheme or plan.

         Alonso's Motion to Sever at 8.

         Alonso next argues in favor of rule 14 severance, stating that

[t]he factors that counsel in favor of severance under Rule 8 also demonstrate why Javier Alonso would be prejudiced by a joint trial. It is precisely because (1) there is no nexus between Count 3 and the other counts, and (2) because Count 3 and the other counts are not based on the same act or transaction that a joint trial would be unfair to Mr. Alonso.

         Alonso's Motion to Sever at 9. Alonso argues that “[t]he introduction of evidence of the other 14 unrelated crimes purportedly committed by and co-defendants who are not charged in Count 3 will deprive Mr. Alonso of his rights to fair trial such that severance should be granted under Rule 14.” Alonso's Motion to Sever at 9. Alonso also argues that the “complexity of the indictment, the disproportionality of evidence, and the presence of evidence that would only be admissible as to some defendants make severance a prudent exercise of discretion.” Alonso's Motion to Sever at 9. Further, although the United States argues each of the Superseding Indictment's counts are “linked by a shared affiliation with the SNM, ” Alonso argues that “such link did not exist as to Mr. Alonso during the time alleged in Counts 4-15, ” Alonso's Motion to Sever at 9-10. In that regard, Alonso points to a conspiracy case, Krulewitch v. United States, 69 S.Ct. 716, 719-20 n.2 (1949)(discussing United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940)), for the proposition that a

co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its merits in the minds of jurors who are ready to believe that birds of a feather are flocked together.

         Alonso's Motion to Sever at 10. Alonso also requests severance of Count 3 in the interest of “judicial efficiency and economy, ” because “a trial of all Defendants on all 15 counts would last considerably longer and would be logistically impractical.” Alonso's Motion to Sever at 10-11.

         Alonso then turns to argument why he, individually, requests “severance . . . from Edward Troup, ” because “Edward Troup allegedly made statements that, if admitted at a joint trial, would implicate Javier Alonso.” Alonso's Motion to Sever at 12. Specifically, Alonso explains:

In Bruton v. United States, 391 U.S. 123');">391 U.S. 123');">391 U.S. 123');">391 U.S. 1231');">391 U.S. 123');">391 U.S. 123');">391 U.S. 123');">391 U.S. 1231 (1968), the Supreme Court held that admission of a non-testifying co-defendant's confession implicating a defendant at their joint trial violated the defendant's Sixth Amendment Confrontation Clause rights. Bruton, involved two defendants -- Evans and Bruton -- tried jointly for robbery. Evans did not testify, but the Government introduced into evidence Evans' confession, which stated that both he (Evans) and Bruton together had committed the robbery. . . . The trial judge told the jury it could consider the confession as evidence only against Evans, not against Bruton. . . . The Court held that, despite the limiting instruction, the introduction of Evans' out-of-court confession at Bruton's trial had violated Bruton's right, protected by the Sixth Amendment, to cross-examine witnesses. . . . The Court recognized that in some circumstances a limiting instruction may not adequately protect one defendant from the prejudicial effects of the introduction at a joint trial of evidence intended for use only against a different defendant.

         Alonso's Motion to Sever at 12. Alonso also notes that, in Bruton v. United States, the Supreme Court held that

“there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect. . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. . . .” The Court found that Evans' confession constituted just such a “powerfully incriminating extrajudicial statement, ” and that its introduction into evidence, insulated from cross-examination, violated Bruton's Sixth Amendment rights.

         Alonso's Motion to Sever at 13 (quoting Bruton v. United States, 391 U.S. at 135-36). Alonso then explains how Bruton v. United States has been refined in the wake of its publication, noting specifically, however, that, “[d]espite these refinements, Bruton's protective rule remains intact. Even where the codefendant's statement is not facially or directly inculpatory, Bruton nevertheless applies ‘when the statement is evidence of a fact critical to the prosecution's case.'” Alonso's Motion to Sever at 12 (quoting United States v. Sarracino, 340 F.3d 1148, 1160 (10th Cir. 2003)(citing United States v. Glass, 128 F.3d 1398, 1404 (10th Cir. 1997))). As to Troup's statements which Alonso contends implicate him and might result in a confrontation-clause violation should he be tried with Troup, those statements are as follows:

Statement at Deleon 680-681 []: Here Mr. Troup allegedly told a CHS that he held Freddie Sanchez's legs while Javier Alonso strangled him with the drawstring from a laundry bag.
Statement at Deleon 1238-1239 []: Here Mr. Troup allegedly told a CHS that the murder of Freddie Sanchez was called by Arturo Garcia and Gerald Archuleta, that he (Troup) was part of the murder, and that Javier Alonso was ordered to kill Sanchez.
Statement at Baca 2464 []: Here Mr. Troup allegedly told a CHS that he and Javier Alonso killed Freddie Sanchez.

         Alonso's Motion to Sever at 13. Alonso concludes by stating that Sanchez, Troup, and A. Baca have joined Alonso's Motion to Sever, and that no Defendants have objected. See Alonso's Motion to Sever at 13.

         11. Gonzales' Amended Motion to Sever.

         Gonzales' Amended Motion to Sever requests his individual severance from a joint trial of all Defendants named in the Superseding Indictment. See Gonzales' Amended Motion to Sever at 1. Regarding Gonzales' exposure under the Superseding Indictment, Gonzales explains that he is “charged in counts 14 and 15 with violent crimes in aid of racketeering (Attempted murder, assault resulting in serious bodily injury, assault with a dangerous weapon and conspiracy), in violation of 18 U.S.C. § 1959(a)(3) and (5).” Gonzales' Amended Motion to Sever at 1. More specifically, Gonzales provides:

According to the discovery provided, the charges against Mr. Gonzales stem from his alleged involvement in the beating of J.G. on February 27, 2016. According to various inconsistent versions of events, on February 27, 2016, Santos Gonzales, Brandi Rodriguez and Paul Rivera allegedly traveled to a home where J.G. had been staying. The trio allegedly entered the home and beat J.G. Much of what was reported about the motive for the beating is inconsistent. Some accounts reported that co-defendant Shaunna Gutierrez had spoken with Brandi Gutierrez, outside the presence of Mr. Gonzales, about how J.G. had agreed to testify against Joe Gallegos. Ms. Gutierrez allegedly advised Ms. Rodriguez that J.G., a.k.a. Tiny was staying with C.J. at her home. According to the different accounts of the incident, at the time Gutierrez and Rodriguez were discussing J.G., Santos Gonzales was outside in Ms. Gutierrez's truck.

         Gonzales' Amended Motion to Sever at 1-2. Further, Gonzales explains:

According to various versions, shortly thereafter Ms. Rodriguez, Messrs. Rivera and Gonzales went to C.J.'s home. J.G. was in a back bedroom. According to one of the versions given by J.G, he was at C.J.'s residence when she left to the methadone clinic. He was awakened when he was hit in the stomach. He saw four (4) people in the room with him (Santos Gonzales, Brandy Dominguez, “Oso” (Paul Rivera) and another female). J.G. stated Santos told him ‘you remember me?' and hit him on his right eye. J.G. stated they told the girl he did not know to go and stand watch by the door to the house. He said “Oso” hit him with a baton and then gave it to Brandy who hit him as well. J.G. also said that Santos hit him with a machete. . . . After the February 27, 2016, incident, J.G. provided varying accounts of the events. Approximately two weeks after the incident, on March 9, 2016, J.G. stated that he believed that Joe Lawrence Gallegos was also involved in the attack as he was upset with J.G. for failing to provide Gallegos' girlfriend with heroin while Gallegos was in custody.

         Gonzales' Amended Motion to Sever at 2. Gonzales also argues that there is no evidence he is an associate of SNM or that he participated in “J.G.'s beating in exchange for consideration for the receipt of and as consideration for a promise and an agreement to pay, anything of value from SNM or for the purpose of gaining entrance to and maintaining or increasing a position in the SNM.” Gonzales' Amended Motion to Sever at 3.

         Gonzales thus first relies on Zafiro v. United States for the proposition that “severance should be granted . . . if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence, ” and argues that “[s]uch a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.” Gonzales' Amended Motion to Sever at 4. Regarding severance, Gonzales suggests the Court consider:

[1] the number of defendants and counts in the indictment; [2] the complexity of the indictment; [3] the estimated length of the trial; [4] disparities in the amount or type of proof offered against the defendants; [5] defendants with markedly different levels of culpability in the overall scheme; [6] conflicts between defense theories or strategies; and [7] potential prejudice from evidence admitted against co-defendants that is inadmissible or excluded as to a particular defendant [i.e., prejudicial spillover].

         Gonzales' Amended Motion to Sever at 5 (citing United States v. Dowtin, 2012 WL 7679552, at *2 (E.D.N.Y. 2012)(Levy, M.J.)(“No one of the factors is dispositive; instead, the court must decide whether the jury would be reasonably able to consider the evidence as to each individual defendant, independent of his or her co-conspirators.”)). Here, accordingly, Gonzales contends that the case is so complex and his role is alleged to be so small that “the evidence against co-defendants will prejudice Mr. Gonzales and it will be difficult for the jury to compartmentalize.” Gonzales' Amended Motion to Sever at 6. Specifically, Gonzales' Amended Motion to Sever highlights the gruesome nature and inflammatory images that will be evidence against the Defendants charged in Counts 1, 2, 3, 4, 5, 6, and 7. See Gonzales' Amended Motion to Sever at 6-12. Gonzales thus maintains that there will be “complex and inflammatory evidence” that the

government will introduce at a joint trial. There can be no dispute that this case presents for the jury a complex determination of facts. In the case against most of the co-defendants, the jury will be asked to determine guilt for offenses that date back to 2001 and involve allegations of murder. The trial will surely be lengthy. On the other hand, if Santos Gonzales is tried separately, the proceedings will be short and more streamlined. The government will only have to present evidence on the limited offenses in which Mr. Gonzales is alleged to have participated. Accordingly, a separate trial would last a fraction of the time of a joint trial. Given the short duration of a separate trial, this factor weighs in favor of severance.

         Gonzales' Amended Motion to Sever at 13.

         Gonzales also argues in favor of severance by asserting the prejudice to his “fundamental right to a speedy trial pursuant to the Sixth Amendment to the United States Constitution.” Gonzales' Amended Motion to Sever at 13. Gonzales also argues that the “disparity of evidence justifies separate trials, ” particularly in a case such as this where Gonzales' alleged role is “dwarf[ed]” by the “sheer volume and magnitude of evidence against the co-defendants.” Gonzales' Amended Motion to Sever at 16-17. Gonzales then cites to Zafiro v. United States, where the Supreme Court held: “When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened.” Gonzales' Amended Motion to Sever at 17.

         Gonzales next argues that “antagonistic defenses justifies severance, ” because there will be “conflicts between defense theories or strategies.” Gonzales' Amended Motion to Sever at 18-19. Specifically, Gonzales states that he is likely to

present as his defense that he was wholly unaware of the SNM's alleged scheme, particularly whether Joe Lawrence Gallegos had a dispute with J.G. or had ordered a hit on J.G. Mr. Gonzales would also present as part [of] his defense that he is not a member or associate of SNM, he does not know the majority of the co-defendants nor was he involved in or aware of any of the alleged conduct set forth in counts 1-13. Given the fact that Mr. Gonzales' defense will very likely be antagonistic to the other defendants, a severance is necessary.

         Gonzales' Amended Motion to Sever at 19. Gonzales also suggests that potential “Bruton error requires severance, ” because his “Bruton rights . . . will be implicated if the government introduces into evidence statements made by Paul Rivera and Shauna Gutierrez.” Gonzales' Amended Motion to Sever at 19. Gonzales indicates, that,

after Paul Rivera was arrested, he said that he had been hanging out at Shauna Gutierrez's trailer. On the morning of February 27, 2016, Shauna, Brandy Rodriguez and Rivera were at Shauna's trailer. During which time, Shauna allegedly said that she had found out the whereabouts of J.G., a.k.a. Tiny. According to Rivera, Rodriguez and Gutierrez had been upset because J.G. would testify against Joe Lawrence Gallegos on a state murder case. According to Rivera, after Gutierrez and Rodriguez had been discussing J.G., Santos Gonzales arrived at the trailer with his girlfriend. Rivera told agents that he drove Gonzales and Rodriguez to the home where J.G. had been staying. Rivera claimed that Santos Gonzales had a machete. Rivera claimed that Mr. Gonzales hit J.G. with the machete and that Rodriguez had told J.G. “you better not testify against my jefe or I'll kill you.” After the beating, the trio allegedly went back to Gutierrez's trailer. According to Rivera, Santos Gonzales cleaned the blood off the machete and some metal pieces.

         Amended Motion to Sever at 20. Further, Gonzales provides:

After Shauna Gutierrez was arrested, she gave agents a statement. According to Ms. Gutierrez, on February 27, 2016, she allowed Brandi Gutierrez to borrow her truck. According to Gutierrez, sometime later, Rodriguez returned to her trailer with Gonzales and Rivera and Rodriguez decided to go confront J.G. Gutierrez stated that Rodriguez, Rivera and Gonzales went to confront J.G. at the home where he was staying. When the trio returned to Gutierrez's home, Rodriguez had blood on her shoes and all three asked to be taken home.

         Amended Motion to Sever at 20. According to Gonzales,

These statements could be interpreted by the jury as implicating Mr. Gonzales in misconduct related to the allegations set forth in counts 14 and 15 and result in prejudice as Mr. Gonzales would not be able to confront and cross examine the declarants. This prejudice cannot be cured or even mitigated by a cautionary instruction.

         Gonzales' Amended Motion to Sever at 20. Gonzales argues

that the fact that Mr. Rivera and Ms. Gutierrez's incriminating statements against Mr. Gonzales are testimonial as defined by Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, Hammon v. Indiana, 547 U.S. 813 (2006), doubly implicates Mr. Gonzales' Sixth Amendment rights and the introduction of the statements would result in a violation thereof. A defendant's right under the Sixth Amendment applies even if a co-defendant's statement does not directly or facially implicate another defendant so long as the statement is evidence of a fact critical to the government's case. United States v. Glass, 128 F.3d 1398, 1404 (10th Cir. 1997). In this case, defendants Rivera and Gutierrez made incriminating statements to a law enforcement officer and the statements inculpate Mr. Gonzales. Mr. Gonzales was not present during Rivera and Gutierrez's statement. Where a Bruton situation exists, the Court may, despite the Confrontation Clause, admit the confession of a non-testifying co-defendant that does not expressly implicate the defendant. “‘The confession must be (i) redacted to eliminate any reference to the non-confessing defendant, and (ii) accompanied by an appropriate limiting instruction that the confession is to be considered only against the confessor.'” Fowler v. Ward, 200 F.3d 1302, 1307 (10th Cir. 2000).

         Gonzales' Amended Motion to Sever at 21-22. Because “it is clear that Rivera and Gutierrez's statements cannot be redacted in a way to omit reference to Mr. Gonzales, [and] because of the nature of the interview which led to Rivera and Gutierrez's incriminating statements, ” Gonzales maintains that “[t]he only way to avoid a Confrontation Clause violation is to sever the trials of Mr. Gonzales from Rivera and Gutierrez.” Gonzales' Amended Motion to Sever at 22-23. Gonzales then concludes by stating that no party has joined Gonzales' Amended Motion to Sever, but that only the United States objects.

         12. The February 7, 2017, Hearing.

         The Court held a hearing on February 7, 2017. See Transcript of Hearing, filed February 24, 2017 (Doc. 923)(“Tr.”). The Court indicated, before hearing argument from Perez on the Motion to Sever, that:

We're dealing with a little bit of reduced crowd here in DeLeon. I guess I'm wondering if some of this may sort itself out as we get a little bit closer to trial in July. I mean, I don't know how many of the people that are here are still going to be here. And so I'm wondering if it's a little premature -- not for the argument, I don't mind hearing the argument -- but I wonder if it's a little premature for me to make sort of nuanced decisions here, until we kind of know a little bit better as to who is going to be going to trial. I do have some problems with -- I think there is a defendant or two that has just some gun charges, felon in possession. And it seemed to me that those probably shouldn't be going to trial. But it seemed to me that I had a lot of discretion in this area. And the RICO charges, the overarching RICO charges, I think it makes it difficult to say that the Government is misjoined. Maybe I could get a little closer on just the stand-alone gun charges. But in any case, it seems to me that it's hard for me to say they've been misjoined. And so it's more of -- falls into the discretion of the Court to try to put a case together that can be tried, and can be tried fairly. And it seems to me, we're in early February, looking at a July trial date. It may be that I have to sit on this a little bit until I get a clearer picture of who is actually being -- who is going to go to trial. So those are my thoughts coming in. That doesn't mean we don't begin to talk about those issues. But I'm wondering if I, as the judge, need to wait until I get a little better visibility on what the trial is going to look like.

Tr. at 32:8-33:18 (Court). Perez agreed that, perhaps, things would look different in July, 2017, but that, nonetheless, he was not “sure that the Government can simply allege SNM is a criminal enterprise engaged in racketeering and join every single violent crime that they could find from 1980.” Tr. at 33:24-34:3 (Villa). The Court responded that “the problem here [is] that the Government has got to prove predicate acts . . . so, once you have the RICO alleged and their obligation to prove predicate acts, how do I start keeping evidence out . . . of predicate acts?” Tr. at 34:20-25 (Court). The Court continued: “[I]sn't the request, though, it's requesting me to sort of slice and dice, here in February, the Government's evidence, and say, well, you and I think they ought to prove their predicate acts by this way, rather than letting the Government decide how they're going to prove their predicate acts.” Tr. at 35:14-22 (Court). Perez disagreed with the Court's characterization of the Motion to Sever as being an attempt to screen evidence, and explained that “I don't think that they can just say, we're going to try Counts 1 through 5 alongside Counts 6 and 7, simply because those are predicate acts.” Tr. at 36:13-16 (Perez). The Court was not convinced, explaining that regardless of the severance, the United States' presentation of evidence to establish the RICO predicate acts -- which the Motion to Sever contends might be prejudicial, given the expansive timeline of the conduct in the Superseding Indictment -- would be the same. See Tr. at 36:17-19 (Court). The Court then reiterated that the Motion to Sever is, in part, “asking me to turn to the Government and say: You don't need to prove it this way, you can prove it this way. And that's kind of hard to do. I mean, typically, we let each side kind of put on their own case.” Tr. at 38:6-9 (Court). Perez agreed, but suggested that

there has to be a limiting principle at some point. I mean, imagine how many more counts and defendants could they add if they found a few more SNM counts? There has to be some limiting principle. And that's the balancing act that the Court does on the Rule 14 side of things. . . . [And] I think Rule 8 is a limiting principle, too.

Tr. at 38:12-16 (Villa). Perez continued:

You know, what we're asking the Court to do is just sever 6 and 7. What happens with the rest of the case is outside of our control, I guess. But you know, I think, when you examine the Rule 8 joinder law in terms of overlap of offenses and overlap of participants, you've got a joinder problem. When you look at the Rule 14 severance with respect to prejudice issues, you've got a problem. And that's not just an evidentiary problem. It's, we want the jury to find each of these individuals guilty on their own merits and not on the culmination of all these different murders that are all a little bit different, that involve different players. And there is no evidence that they were all working together, other than this sort of general notion of this is what the SNM does.

Tr. at 40:21-41:11 (Villa).

         Perez, after his general colloquy with the Court about the Motion to Sever, began a slideshow presentation in which he

attempted to examine the benefits that we'll see from having counts severed based on when the counts occurred, the geographical location, the dates, the times, is going to benefit us pretrial as well. I mean, Counts 6 and 7 is severed, and there [are] now six of us, and we have a motion hearing that not necessarily everybody needs to be here for -- they certainly can -- we're going to avoid some of these issues that we have even here today. And I think costs, which we'll talk about as well.

Tr. at 43:4-14 (Villa). The Court pressed, however, whether,

if we just hang together a little bit, at what point does it begin to really be any sort of prejudice to you as to whether 6 and 7 are severed or not severed? At what point, with a July 10th trial date, how long does just rocking along, at what point does it begin to be a real problem for you?

Tr. at 44:10-16 (Court). Perez supposed that

I think it's a problem now . . . in terms of prejudice to the defendant, I guess the concerns I have are the same; they need to review that discovery. But also I have concerns whether this joint trial could happen in July. I believe 6 and 7 could go. I mean, it was weeks from trial in state court, granted, on only three defendants, but it's basically teed up.

Tr. at 44:20-45:2 (Villa). Perez then jumped into his primary arguments for the day, explaining:

You know, the Court's familiar with the Rule 8 standard for joiner. But I think that the question in a case like this is whether, in light of the factual overlap among the charges, joint proceedings create efficiencies such that joinder is proper. And when you're dealing with conspiracy or racketeering, what the more recent case law has found is there must be some relationship between the facts underlying each offense, such that proof of those facts is necessary to establish each offense.

Tr. at 46:19-47:3 (Villa). Perez then recapped some of the unique factual elements of the SNM prosecution that he had outlined in his Motion to Sever, particularly the fact that the jail murder alleged in Counts 6 and 7 occurred in 2014, whereas the jail murders and conduct alleged in Counts 1, 2, and 3 occurred in 2001. See Tr. at 47:4-49:1 (Villa). Perez also argued that, because of the lapse in time, a “completely different faction of the SNM” is responsible for the murder in Counts 6 and 7, so you're

just talking about members of the same gang from 15 years 10 apart involved in similar type murders. That's the only factual overlap you have. You don't have any overlap of defendants. So there [are] no overlapping defendants. And other than the enterprise separated by 13 years, [there is] no overlap in facts.

Tr. at 49:8-14 (Villa). Perez then reiterated:

[S]o 1 through 3, I think we have the overlap problem. I think we have the overlap problem. If you go over to the Rule 14 analysis, you have a propensity problem; right? The theory that the Government will put forth is that in Counts 6 and 7 and 1 through 3, there was a member of the SNM who allegedly cooperated with police and was killed for it. And so you try these cases alongside each other. Even if the Government is right, and some people take plea deals, or as we know that that may happen, you've got this atmosphere, if you will, of propensity, where, you know, the 2014 guys may have had no idea about the 2001 case.

Tr. at 50:14-51:1 (Villa). Then, Perez argued, the nature of Counts 4 and 5 -- a conspiracy and murder in 2012 which occurred “outside of the prison walls, in Socorro and Valencia Counties, so not inside the prison” -- widens the gap of factual overlap amongst the Counts, because

[i]t [is] not like 1 through 3 and 6 and 7, where you have, you know, an order from the top to kill somebody who is also a member of the SNM because they're cooperating with law enforcement. This is just a couple of guys from Valencia County . . . who had some issues with each other, and one of them ended up dead.

Tr. at 52:15-21 (Villa). Perez contended:

This is outside of the prison walls. This brings a different element to the jury's mind. And there [are] also some issues, I think, [was] this even an SNM case? None of the defendants overlap with Counts 6 and 7. And there is an unclear SNM connection. This isn't the same modis operandi. And again, different geographical location, outside of the prison walls. The defenses are much different in a case like this.

Tr. at 53:5-13 (Villa).

         Perez then addressed Baca, who is alleged to have ordered the murder in Counts 6 and 7, and also is alleged to have been complicit in the conduct underlying Counts 8, 9, and 10. See Tr. at 54:19-24 (Villa). Perez conceded that, because Baca has been charged in those Counts along with Counts 6 and 7, there is more factual overlap than with Counts 1-5; however, Perez maintains that, “[a]gain, the only overlapping facts are the SNM enterprise. You know, 8, 9, and 10 are much different in character and nature, just like 4 and 5 were.” Tr. at 55:3-6 (Villa). Perez, accordingly, contended:

And so I think that . . . trying 8 and 9 through 12, you know, Defendant Baca is going to be accused of being [a] leader[] of SNM, ordering these hits, trying to set up a conspiracy to kill Mr. Marcantel and Mr. Santistevan. And if you try those counts alongside 6 and 7, where Defendant Baca is also alleged to have ordered the hit of the victim, I think you have a real propensity-type problem.

Tr. at 56:8-16 (Villa). Perez made this argument, because Counts 9 and 10 “are the more prominent, I guess, allegations of hits on the Secretary of Corrections and the head of STIU, ” ordered by Baca, and Count 8 is

sort of unique, as it stands on its own, but it's also different. So it's an assault on JR, who had a falling out with Gerald Archuleta; not necessarily clear what the nature of the falling out was, but because Gerald Archuleta was basically one of the heads of one of the different SNM factions, he has a falling out with this guy; he orders the hit on him in 2003. An attempt on his life is made; it failed; the green light stays in effect. And another attempt is made in 2015, also at Southern New Mexico. None of the defendants overlap, except for Defendant Baca. But Defendant Baca is -- he's not in Southern. He's -- at the particular time of this incident, I'm not sure where he is. He may have been back in Santa Fe North. But it appears to be the only connection is Gerald Archuleta saying Mr. Baca is involved.

Tr. at 55:16-56:7 (Villa). Further,

[Counts] 9 and 10 are the two conspiracies we talked about. The only difference between 9 and 10 is, for 10, you add Chris Garcia. Chris Garcia is the subject of 11 and 12, felon in possession of a firearm and 924(c). I think the Government's theory is that the gun Mr. Garcia had was going to be passed on to an individual [who] was supposed to execute these hits on the Secretary and the head of STI U.So those four counts are sort of associated in that way. But, again, Mr. Baca is the only overlapping defendant. And there aren't any overlapping facts except the SNM.

Tr. at 57:1-12 (Villa). Perez then told the Court about the dissimilarity of

Counts 13 through 15, these all are, again, outside the prison, executed primarily by Joe Gallegos; he's Count 13 by himself. This is the same victim, JG. It's an assault with a deadly weapon; that's Count 13. 14 and 15 is now a conspiracy to murder JG, and that brings in some of these other defendants, three of whom are going to trial as we sit here today. And again, it appears that JG and Mr. Gallegos had some personal problems, and this was the result of that, and not necessarily any sort of SNM-ordered hit from the higher-ups or things like that. The connection with SNM is tenuous. The Gallegoses have denied membership in the SNM.

Tr. at 57:13-25 (Villa).

         Returning to Counts 6 and 7, Perez then reiterated that he was going to trial, and so were the other Defendants involved in those Counts -- making the United States' contention that the numbers would be winnowed by the trial date inaccurate. See Tr. at 58:13-59:25 (Villa). Indeed, Perez then recognized the Court's “discretion: weighing the prejudice with judicial economy. So I think that there is a little bit less discretion when you're looking at antagonistic defenses and compromising trial rights.” Tr. at 60:2-5 (Villa). Perez also suggested that the evidence against him in Counts 6 and 7 outweighs the strength of the evidence against some of the other Defendants, such as those in Counts 1 and 2, because the United States has evidence of the Counts 6 and 7 victim being murdered in jail footage and DNA evidence, supporting his argument that the Superseding Indictment should be severed. See Tr. at 61:1-25 (Villa). Perez also continued to argue that the facilities at the Court's disposal would not effectively handle the magnitude of a joint trial, commenting that a complete rebuild would be necessary to ensure a constitutional trial. See Tr. at 62:1-63:25 (Villa). Perez argued that the magnitude also would cause a burden for the jury, whom may not be able to compartmentalize the evidence they are considering as it relates to the separate Counts. See Tr. at 64:14-19 (Villa). Perez also argued that a trial of magnitude would be cost prohibitive in this District, given the available facilities and the involvement of so many different attorneys whom have other caseloads, necessitating severance. See Tr. at 65:14-21 (Villa). Perez next reiterated what he calls the specific prejudice to the Counts 6 and 7 Defendants by the nature of the other Counts, in particular Counts “9 [through] 12, the real high profile conspiracies, I think anybody who has to be tried alongside those folks, you know, are just going to experience prejudice.” Tr. at 68:4-7 (Villa). Perez then concluded his argument. See Tr. at 68:16-19 (Villa).

         M. Rodriguez next addressed the Court, stating:

I'd like to call the Court's attention first to something in the Government's response to the severance motion. . . . It says, “Prejudice always exists when more than one defendant or offense are tried together.” That's in the Government's pleading, and the Government readily concedes that. That is a powerful statement. I think everyone in this courtroom -- I hope the Court included -- acknowledges that if these guys are tried together, there is going to be prejudice. That's inevitable. The Court can give all the curative instructions, make all the evidentiary rulings, do everything within its power. There is going to be prejudice. Our law says that that prejudice is acceptable when the two traditional justifications for joint trials exist: Preventing the scandal and inequity of inconsistent verdicts, and judicial efficiency. I believe Mr. Villa has already touched on the inconsistent verdicts scandal and inequity issue. The Count 6 and 7 Defendants are asking to be tried together. As a matter of law, by definition, there can be no scandal and inequity of inconsistent verdicts on Counts 6 and 7 by virtue of a severance, if they're all tried together. So that turns us to the one possible thing that could justify the inevitable admitted prejudice of a joint trial: Judicial efficiency. . . . I submit to the Court, based on all the cases that we set out in our pleading and the supplemental pleadings filed by other counsel, that that judicial preference ceases to exist when you're talking about mega trials of this nature. When you get to a certain point -- I believe in the Second Circuit the presumptive number of defendants is 10.

Tr. at 69:10-70:22 (Potolsky). M. Rodriguez also provided:

we've got defendants who, through no fault of their own, other than they're joined in a mega trial, have to turn their back to the Court. That's not a good thing. When we've got defendants in the jury box, in the second row of the spectators' area, and we are thinking about not giving them a fair trial, but how do we pack them all into a courtroom so that their public trial rights are realized, that is a problem. If it saves time and prevents scandal inequity, the law says that's okay.

Tr. at 71:1-11 (Potolsky)(commenting on the fact that the Court has been using the largest courtroom at its disposal, and there is still overflow necessity, because with the United States Marshals, Court personnel, attorneys, and Defendants, there is sometimes more than fifty people in the courtroom at a time).

         B. Garcia next argued, and reiterated that a large number of Counts 1 and 2 Defendants would not be taking plea deals and would be proceeding to trial. See Tr. at 76:15-25 (Castle). B. Garcia also argued that there

is a large amount of litigation that we're going to be involved in, especially with regards to delay in indictment. I think the Court heard a little earlier that the DNA was degraded so bad that the FBI tried to retest it in 2014, and could not come up with any results.

Tr. at 79:7-12 (Castle). Further, B. Garcia, explained, “[w]e're going to need more time. We didn't have the advantage of -- I guess advantage -- of being prosecuted in state court, and having some attorneys working on the case. We just don't have that situation. And we're doing a case that is 15 years old.” Tr. at 79:14-19 (Castle). B. Garcia had more to add to his argument, but changed counsel at this point, and in the meantime, the Court asked M. Rodriguez to clarify what he had said about a presumption that ten Defendants or more “exceeded what [the Second Circuit] would tolerate as far as a joint trial.” Tr. at 83:18-25 (Court). M. Rodriguez told the Court he would supplement his argument the next day. See Tr. at 84:1-5 (Potolsky). B. Garcia then argued:

I thought of these cases as separate matters that ideally should be tried by themselves. I represent one of the defendants in Count 1 and 2, Billy Garcia. Billy Garcia is 61 years of age. Billy Garcia was out of custody at the time, in 2015, agents went to his house and arrested him. Billy Garcia will never take a deal. Billy Garcia is never going to enter a plea in this case. He's 61 years old. He is alleged to be the shot caller with regard to Counts 1 and 2. The Government won't give him a 10-year deal. We haven't had any discussions whatsoever. But just knowing the offers that are going to come out of the Government's office, there won't even be a 10-year deal. And for a 61-year-old man -- I'm 63, Judge --for a 61-year-old man living in prison, he is not going to take a 10-year deal, because that is essentially a life sentence. And when the Government says that there are, at the end of the day, only going to be five defendants, I don't see that. I just absolutely don't see that.

Tr. at 83:14-85:14 (Cooper). Further, B. Garcia maintained:

Th[e] effort, just in itself, is going to take just a huge amount of time. We haven't gotten into any other substantive motions that need to be filed. I just think it's -- I think that it makes more sense to divide things up. And it's not going to be seven. I don't think that is the number. But I think it ought to be three or four, probably. And I have my thoughts on how that should happen. But I think that after some of these defendants see what happens in Counts 6 and 7 -- 6 and 7 is ready. We are not ready. We're still trying to identify and locate witnesses that were around in 2001, that heard parts of conversations with regard to our two counts. And we're having a difficult time doing that. Your Honor, some of the evidence, we think, no longer exists. Some of these individuals who are witnesses no longer exist. I suspect you're going to see a preindictment delay motion coming from us. There is just a tremendous amount of work.

Tr. at 87:12-88:7 (Cooper). B. Garcia concluded:

I think it's going to create havoc on other judges' calendars, when we have this mega trial with 15 or 20 individuals, Your Honor. But I think there ought to be a severance of Counts 6 and 7. I think Counts 1 and 2 ought to be severed. I think the Marcantel counts ought to be severed. I think a couple of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.