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United States v. Deleon

United States District Court, D. New Mexico

December 18, 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 United States Attorney's Office Las Cruces, 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.

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

          James A. Castle Castle & Castle, P.C. Denver, Colorado and Robert R. Cooper Albuquerque, New Mexico 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 The Linder Firm Dallas, Texas and Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson.

          John L. Granberg Granberg Law Office El Paso, Texas and Orlando Mondragon El Paso, Texas Attorneys for Defendant Christopher Chavez.

          Nathan D. Chambers Nathan D. Chambers, LLC Denver Colorado and Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso.

          Scott Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia.

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark.

          Pedro Pineda 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 Jacksonville Beach, Florida and Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez.

          Jacqueline K. Walsh Walsh & Larranaga Seattle, Washington and Ray Velarde El Paso, Texas Attorneys for Defendant Timothy Martinez.

          Joe Spencer El Paso, Texas and 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 El Paso, Texas Attorneys for Defendant Daniel Sanchez.

          George A. Harrison 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 Duncan, Earnest, LLC Albuquerque, New Mexico and Marc M. Lowry Rothstein Donatelli, 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 Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez.

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

          William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Attorneys for Defendant Carlos Herrera.

          Justine Fox-Young Albuquerque, New Mexico and Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez.

          Donavon A. Roberts Albuquerque, New Mexico Attorneys for Defendant Andrew Gallegos.

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

          Angela Arellanes Albuquerque, New Mexico Attorneys for Defendant Shauna Gutierrez.

          Jerry A. Walz Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Daniel Sanchez's Motion to Sever the Trial of Counts 6-7 from the Trial of Counts 8-12, filed October 6, 2017 (Doc. 1296)(“Severance Motion”). The Court held a hearing on November 8-9, 2017. The primary issue is whether the Court should reconsider its decision in its Memorandum Opinion and Order, 2017 WL 3054511, filed June 30, 2017 (Doc. 1204)(“Severance MOO”) to try Counts 6-7 and Counts 8-12 of the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Indictment”) in the same proceeding. Severance MOO, 2017 WL 3054511, at *106 (“The Court will not, therefore, sever Counts 6 and 7, from the Counts 6-12 trial grouping, at this time.”). The Court's earlier ruling in the Severance Motion was without prejudice to the Defendants renewing their request to sever in that it recognized that further factual development could alter its severance determination. See Severance MOO, 2017 WL 3054511, at *104 (“The Court does not agree that sufficient prejudice for further severance exists at this time for the Counts 6 and 7 Defendants.”). The Court will accordingly consider Defendant Daniel Sanchez' arguments that a joint trial “would create a serious risk of prejudice to Mr. Sanchez.” Severance Motion at 2. The Court will not, however, modify its purely legal determination that, “[t]o justify severance, the Defendants must demonstrate that joinder violates their constitutional fair trial rights, or would otherwise ‘prevent the jury from making a reliable judgment about guilt or innocence.'” Severance MOO, 2017 WL 3054511, at *106 (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). The Court concludes that the Severance Motion does not satisfy “[t]he ‘heavy burden' of showing sufficient prejudice, ” Severance MOO, 2017 WL 3054511, at *106 (quoting United States v. Hall, 473 F.3d 1295, 1302 (10th Cir. 2007)), so the Court will deny the Severance Motion.

         FACTUAL BACKGROUND

         The Court takes its background facts from the Indictment. The background facts are largely unchanged from those that the Court provided in its Severance MOO, its Motion Memorandum Opinion and Order, 2016 WL 7242579, filed October 28, 2016 (Doc. 753), and its Memorandum Opinion and Order, 2016 WL 3124632, filed May 27, 2016 (Doc. 557). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

         This case deals with crimes that the Syndicato de Nuevo Mexico (“SNM”) allegedly committed through its members. 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.” 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.” Indictment at 2-3.

         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 Indictment at 3. SNM has approximately 250 members and has “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issued orders to subordinate gang members.” 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 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 Indictment at 3-4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults.” Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment at 4. If another gang does not abide by SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See 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.” Indictment at 4. 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 Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the Federal Bureau of Investigation's (“FBI”) present investigation. See United States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order, 221 F.Supp.3d 1275, 1277, filed November 16, 2016 (Doc. 133). 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 Defendant Jerry Montoya and Defendant 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”). Memorandum Opinion and Order, 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 Memorandum Opinion and Order, 2016 WL 7242579, at *3. That New Mexico 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 Memorandum Opinion and Order, 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 Memorandum Opinion and Order, 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.” Memorandum Opinion and Order, 2016 WL 7242579, at *3.

         The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the enterprise's operation and management and of 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.” Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta, [1] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [2] and Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See 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. Indictment at 9.

         Specifically, the Indictment alleges that, on March 26, 2001, Defendant Angel DeLeon, Defendant Joe Gallegos, Defendant Edward Troup, Defendant Leonard Lujan, and Defendant Billy Garcia murdered “F.C.” Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, Defendant Eugene Martinez, Defendant Allen Patterson, and Defendant Christopher Chavez allegedly murdered “R.G.” Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered “F.S.” Indictment at 10-11 (Count 3). On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder “A.B.” Superseding Indictment at 11 (Count 4). On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Indictment at 11-12 (Count 5). In March, 2014, Armenta, Montoya, M. Rodriguez, Defendant Timothy Martinez, Baca, Defendant Mauricio Varela, Sanchez, Defendant Carlos Herrera and Defendant Rudy Perez allegedly conspired to murder “J.M.” Indictment at 12 (Count 6). On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera and Perez allegedly murdered J.M. See Indictment at 13 (Count 7).

         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.” Indictment at 13-14 (Count 8). 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 R. Martinez allegedly conspired to murder “D.S.” Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder “G.M.” Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Indictment at 15-16 (Count 11). 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 Indictment at 16 (Count 12).

         On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against “J.G.” Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, Defendants J. Gallegos, B. Rodriguez, Defendant Santos Gonzales, Defendant Paul Rivera, Defendant Shauna Gutierrez, and Defendant Brandy Rodriguez allegedly conspired to murder “J.G.” Indictment at 17 Count 14. 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 Indictment at 17-18 (Count 15). The same Defendants also allegedly tampered with a witness, J.G. See Indictment at 18 (Count 16).

         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.)[3] -- 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).[4] There is also a prosecution of one Defendant for drug crimes, see United States of America v. Christopher Garcia, No. CR 15-4275 JB (D.N.M.)(Browning, J.), and of four defendants for alleged violations of 18 U.S.C. § 1959 (“VICAR”). See United States of America v. Mauricio Varela, No. 15-4269 JB (D.N.M.)(Browning, J.).

         PROCEDURAL BACKGROUND

         Nearly a year ago, the Defendants charged in Counts 6 and 7 of the Indictment filed the Defendants' Joint Motion to Sever Defendants Charged with Offenses in Counts 6 & 7 at 29, filed December 23, 2016 (Doc. 807)(“Original Severance Motion”). The Original Severance Motion requests that the Court sever Counts 6 and 7 from the Indictment's other charges, because, “[w]ith the exception of Defendant Baca, none of the defendants charged in Counts 6 and 7 are charged in any other count of the superseding indictment.” Original Severance Motion at 1-2. The Original Severance Motion contains 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 [the Defendants charged in Counts 6 and 7] 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 [to the Constitution of the United States, ] 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.

         Original Severance Motion at 2.

         The Court rejects those arguments in its Severance MOO.[5] The Court concludes that the Indictment satisfies rule 8 of the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 8(b) (“The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in ...


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