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 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.
Dean Clark Las Cruces, New Mexico Attorney for Defendant
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
L. Granberg Granberg Law Office El Paso, Texas and Orlando
Mondragon El Paso, Texas Attorneys for Defendant Christopher
D. Chambers Nathan D. Chambers, LLC Denver Colorado and Noel
Orquiz Deming, New Mexico Attorneys for Defendant Javier
Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn
Albuquerque, New Mexico Attorneys for Defendant Arturo
Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico
and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys
for Defendant Benjamin Clark.
Pineda Las Cruces, New Mexico Attorney for Defendant Ruben
Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for
Defendant Jerry Armenta.
A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret
Strickland McGraw & Strickland Las Cruces, New Mexico
Attorneys for Defendant Jerry Montoya.
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
Spencer El Paso, Texas and Mary Stillinger El Paso, Texas
Attorneys for Defendant Mauricio Varela.
Jacks Law Office of Amy E. Jacks Los Angeles, California and
Richard Jewkes El Paso, Texas Attorneys for Defendant Daniel
A. Harrison Las Cruces, New Mexico Attorney for Defendant
Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant
Theresa M. Duncan Duncan, Earnest, LLC Albuquerque, New
Mexico and Marc M. Lowry Rothstein Donatelli, LLP
Albuquerque, New Mexico Attorneys for Defendant Anthony Ray
Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces,
New Mexico Attorney for Defendant Robert Martinez.
J. Milner Las Cruces, New Mexico Attorney for Defendant Roy
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
Arellanes Albuquerque, New Mexico Attorneys for Defendant
A. Walz Walz and Associates Albuquerque, New Mexico Attorneys
for Defendant Brandy Rodriguez.
MEMORANDUM OPINION AND ORDER
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
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.
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.
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.
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.
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,
Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray
Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez,
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.
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
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).
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).
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,
-- 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). 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.).
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.
Severance Motion at 2.
Court rejects those arguments in its Severance
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 ...