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United States v. Deleon

United States District Court, D. New Mexico

December 3, 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.

          James 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

          Russel Dean Clark Attorney for Defendant Leonard Lujan

          James A. Castle Robert R. Cooper Attorneys for Defendant Billy Garcia

          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

          John L. Granberg Attorneys for Defendant Christopher Chavez

          Nathan D. Chambers Nathan D. Chambers, LLC Attorneys for Defendant Javier Alonso

          Scott Moran Davidson, Billy R. Blackburn Attorneys for Defendant Arturo Arnulfo Garcia

          Stephen E. Hosford, Jerry Daniel Herrera Attorneys for Defendant Benjamin Clark

          Pedro Pineda, Attorney for Defendant Ruben Hernandez

          Gary Mitchell Attorney for Defendant Jerry Armenta

          Larry A. Hammond, Margaret Strickland McGraw & Strickland Attorneys for Defendant Jerry Montoya

          Steven M. Potolsky, Santiago D. Hernandez Attorneys for Defendant Mario Rodriguez

          Jacqueline K. Walsh, Ray Velarde Attorneys for Defendant Timothy Martinez

          Joe Spencer, Mary Stillinger Attorneys for Defendant Mauricio Varela

          Amy E. Jacks, Richard Jewkes Attorneys for Defendant Daniel Sanchez

          George A. Harrison Attorney for Defendant Gerald Archuleta

          B.J. Crow Attorney for Defendant Conrad Villegas

          Theresa M. Duncan Duncan, Earnest, LLC Marc M. Lowry Rothstein Donatelli, LLP Attorneys for Defendant Anthony Ray Baca

          Charles J. McElhinney Attorney for Defendant Robert Martinez

          Marcia J. Milner Attorney for Defendant Roy Paul Martinez

          Christopher W. Adams Law Office of Amy Sirignano, P.C. Albuquerque, Attorneys for Defendant Christopher Garcia

          Carey 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 Perez

          Donavon A. Roberts Attorneys for Defendant Andrew Gallegos

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Attorneys for Defendant Santos Gonzalez

          Angela Arellanes Albuquerque, Attorneys for Defendant Shauna Gutierrez

          Jerry A. Walz Walz and Associates Attorneys for Defendant Brandy Rodriguez

          MEMORANDUM OPINION AND ORDER

         THIS 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.”).[1] 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.

         FACTUAL BACKGROUND

         Before 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.

         This 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.

         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. 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]

         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 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.

         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 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.

         The 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 various Defendants.

         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, 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.

         Further, 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 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, 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.

         FINDINGS OF FACT

         The 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 (Doc. 430).
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 (Doc. 674).
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 (Doc. 697).
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 at 27-28.
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 at 28.
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 facts:
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 ...

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