United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Maria Ysabel Armijo,
Randy M. Castellano, Matthew Beck Assistant United States
Attorneys Attorneys for the Plaintiff United States
Richard Sindel Sindel, Sindel & Noble, P.C. Brock
Benjamin Attorneys for Defendant Joe Lawrence Gallegos
Patrick J. Burke Cori Ann Harbour-Valdez Attorneys for
Defendant Edward Troup
Dean Clark Attorney for Defendant Leonard Lujan
A. Castle Robert R. Cooper Attorneys for Defendant Billy
Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New
Mexico Attorneys for Defendant Eugene Martinez
Phillip A. Linder, Jeffrey C. Lahann Las Cruces, New Mexico
Attorneys for Defendant Allen Patterson
L. Granberg Attorneys for Defendant Christopher Chavez
D. Chambers Nathan D. Chambers, LLC Attorneys for Defendant
Moran Davidson, Billy R. Blackburn Attorneys for Defendant
Arturo Arnulfo Garcia
Stephen E. Hosford, Jerry Daniel Herrera Attorneys for
Defendant Benjamin Clark
Pineda, Attorney for Defendant Ruben Hernandez
Mitchell Attorney for Defendant Jerry Armenta
A. Hammond, Margaret Strickland McGraw & Strickland
Attorneys for Defendant Jerry Montoya
M. Potolsky, Santiago D. Hernandez Attorneys for Defendant
Jacqueline K. Walsh, Ray Velarde Attorneys for Defendant
Spencer, Mary Stillinger Attorneys for Defendant Mauricio
Jacks, Richard Jewkes Attorneys for Defendant Daniel Sanchez
A. Harrison Attorney for Defendant Gerald Archuleta
Crow Attorney for Defendant Conrad Villegas
Theresa M. Duncan Duncan, Earnest, LLC Marc M. Lowry
Rothstein Donatelli, LLP Attorneys for Defendant Anthony Ray
Charles J. McElhinney Attorney for Defendant Robert Martinez
J. Milner Attorney for Defendant Roy Paul Martinez
Christopher W. Adams Law Office of Amy Sirignano, P.C.
Albuquerque, Attorneys for Defendant Christopher Garcia
Corlew Bhalla Law Office of Carey C. Bhalla, LLC Michael V.
Davis Attorney & Counselor at Law, P.C. Attorneys for
Defendant Carlos Herrera
Justine Fox-Young Ryan J. Villa Attorneys for Defendant Rudy
Donavon A. Roberts Attorneys for Defendant Andrew Gallegos
Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC
Attorneys for Defendant Santos Gonzalez
Arellanes Albuquerque, Attorneys for Defendant Shauna
A. Walz Walz and Associates Attorneys for Defendant Brandy
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United
States' Sealed Motion Regarding Attorney Conflict, filed
May, 4, 2017 (Doc. 1126)(“Attorney Conflict
Motion”). The Court held hearings on November 8-9,
2017, Transcript of Hearing (held November 8, 2017), filed
November 20, 2017 (Doc. 1456)(“Nov. 8 Tr.”);
Transcript of Hearing (held November 9, 2017), filed November
20, 2017 (Doc. 1457)(“Nov. 9 Tr.”), and again on
November 27-29, 2017, Draft Transcript of Motion Hearing
(taken November 27-29, 2017)(“Second Hearing
Tr.”). The primary issue is whether Michael V.
Davis' ethical duties to his former client, Defendant Roy
Paul Martinez, prevent Mr. Davis from representing Defendant
Carlos Herrera in this case. The Court determines that Mr.
Davis' represented R.P. Martinez in a matter that is
substantially related to this case and that R.P.
Martinez' interests are materially adverse to
Herrera's. Accordingly, the Court concludes that Mr.
Davis' ethical duties to R.P. Martinez prevent him from
representing Herrera in this matter.
setting out its findings of fact, the Court will provide
background information regarding the Syndicato de Nuevo
Mexico (“SNM”) as well as background information
regarding each of the Defendants in this case and the charges
that they face. The Court takes its background facts from the
Superseding Indictment, filed April 21, 2016 (Doc. 367). The
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 v. DeLeon,
2016 WL 7242579 (D.N.M. 2016)(Browning, J.). See
also Memorandum Opinion and Order, filed March 8, 2017
(Doc. 943); United States of America v. Angel
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.
case deals with crimes that SNM allegedly committed through
its members. See 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.
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. 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, run by
“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]
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 its 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. See 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)). The
other relevant facts giving rise to this case are as follows.
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 state prison. See 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 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 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.
United States now brings this case against thirty Defendants,
charging them with a total of fifteen counts. See
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, Benjamin Clark, Mario Rodriguez, Anthony Ray Baca,
Robert Martinez, R.P. Martinez, and Daniel Sanchez are the
alleged enterprise leaders. See Superseding
Indictment at 6. The other twenty 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), 1961(1) define that
term; (ii) murder and robbery in violation of New Mexico law;
(iii) acts, indictable under 18 U.S.C. §§ 1503,
1512, 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, 846.
Superseding Indictment at 9. In all, the Superseding
Indictment alleges fifteen different counts against the
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, J. Gallegos and Defendant Andrew
Gallegos allegedly conspired to murder “A.B.”
Superseding Indictment at 18. On the same day, J. Gallegos
and A. Gallegos allegedly murdered A.B. See
Superseding Indictment at 19. In March 2014, Defendants Jerry
Armenta, Montoya, 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, Defendants Armenta, Montoya,
Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera, and
Perez allegedly murdered J.M. See Superseding
Indictment at 21.
starting in or around 2003 -- and until about July 13, 2015
-- Baca, Archuleta, and Defendant 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 -- Baca, R.P. Martinez, and Defendant Robert
Martinez allegedly conspired to murder “D.S.”
Superseding Indictment at 28. During the same period of time,
Baca, R.P. Martinez, R. Martinez, and Defendant 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
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, J. Gallegos, and Defendants Santos Gonzalez, Paul
Rivera, Shauna Gutierrez, “and others known and unknown
to the grand jury, ” allegedly conspired to murder
“J.G.” Superseding Indictment at 30. The final
count alleges that, on February 27, 2016, J. Gallegos,
Gonzalez, 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.
Court will make explicit findings of fact, because
“[w]hen factual issues are involved in deciding a
motion, the court must state its essential findings on the
record, ” Fed. R. Crim. P. 12(d), even though rule
12(d) of the Federal Rules of Criminal Procedure
“‘does not require detailed findings of facts as
long as the essential basis of the court's decision is
apparent, '” United States v. Burbage, 365
F.3d 1174, 1178 (10th Cir. 2004)(Hartz, J.)(quoting
United States v. Toro-Pelaez, 107 F.3d 819, 824
(10th Cir. 1997)). The Court sets out the following explicit
findings of fact:
1. In 2000, Mr. Davis was appointed to represent R.P.
Martinez in a New Mexico state murder prosecution.
See Affidavit of Michael V. Davis ¶ 5, at 2,
filed May 25, 2017 (Doc. 1164-1)(“Davis Aff.”).
2. “[T]here were allegations that the murder was
related to SNM, [but] the existence of the SNM and
Martinez' gang affiliation [were] never an essential part
of the case, nor an element of the homicide charges.”
Davis Aff. ¶ 6, at 2.
3. “Martinez and others, were alleged to have strangled
an inmate at BCDC [Bernalillo County Detention Center] in
retaliation for some SNM information.” Davis Aff.
¶ 7, at 2.
4. On June 24, 2002, R.P. Martinez pled guilty to
second-degree murder in violation of N.M. Stat Ann.
§§ 30-2-1 and 28-2. See Attorney Conflict
Motion at 2.
5. “Martinez was sentenced in that case to fifteen
years incarceration.” Attorney Conflict Motion at 2.
6. On May 3, 2016, the Honorable Karen B. Molzen, United
States Magistrate Judge, appointed Mr. Davis to represent
Herrera. See CJA Appointment, filed May 3, 2016
7. On September 7, 2016, Herrera asked the Court to
“provide him a second chair counsel in this matter,
” and noted that he “is not requesting
‘learned counsel' in this matter.”
See Ex Parte Motion for Second Counsel and
Appointment Pro Hac Vice at 1, 3, filed September 7, 2017
8. The Court obliged, and appointed Carey Bhalla to represent
Herrera. See Ex Parte Order Approving Second Counsel
and Appointment Pro Hac Vice at 1, filed September 22, 2016
9. Count 6 and 7 of the Superseding Indictment charge Herrera
-- along with Armenta, Montoya, Rodriguez, T. Martinez, Baca,
Varela, Sanchez, and Perez -- with the murder of J.M. and
conspiracy to commit that murder. See Superseding
Indictment at 20-21.
10. R.P. Martinez and Herrera are co-defendants. See
Superseding Indictment at 1.
11. Count 9 of the Superseding Indictment charges R.P.
Martinez -- along with Baca and R. Martinez -- with
conspiracy to murder D.S. See Superseding Indictment
12. Count 10 of the Superseding Indictment charges R.P.
Martinez -- along with Baca, R. Martinez, and Garcia -- with
conspiracy to murder G.M. See Superseding Indictment
13. R.P. Martinez and the United States entered into a Plea
Agreement. See Plea Agreement at 1, filed September
15, 2016 (Doc. 686).
14. The Plea Agreement is pursuant to rule 11(c)(1)(A) of the
Federal Rules of Criminal Procedure, and the United States
agrees “not to bring additional criminal charges
against the defendant arising out of the facts forming the
basis of the present Superseding Indictment.” Plea
Agreement ¶ 14, at 7.
15. The Plea Agreement is also pursuant to rule 11(c)(1)(C)
of the Federal Rules of Criminal Procedure, and the United
States and R.P. Martinez stipulate to a 2-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a)
and that, if R.P. Martinez satisfies U.S.S.G. §
3E1.1(b)'s requirements, then the United States will move
for an additional 1-level reduction for acceptance of
responsibility. See Plea Agreement ¶ 9, at 5.
16. In the Plea Agreement, R.P. Martinez admits the following
In 1995, while incarcerated at the Penitentiary of New
Mexico, I became a member of the Syndicato Nuevo Mexico (SNM)
prison gang. The SNM is an ongoing criminal organization
whose members, prospects and associates engage in acts of
violence and other criminal activities, including murder,
kidnapping, attempted murder, and conspiracy to
manufacture/distribute narcotics. The SNM operates in the
District of New Mexico and elsewhere. The SNM constitutes an
enterprise (individuals associated in ...