United States District Court, D. New Mexico
C. Anderson 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 Allen Patterson
L. Granberg Granberg Law Office El Paso, Texas --and--
Orlando Mondragon El Paso, Texas Attorneys for Defendant
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 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
Pineda Las Cruces, New Mexico Attorney for Defendant Ruben
Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for
Defendant Jerry Armenta0
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
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
Torraco Albuquerque, New Mexico --and-- Donavon A. Roberts
Albuquerque, New Mexico Attorneys for Defendant Andrew
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: (i) Defendant
Santos Gonzales' Motion for Production of Alleged
Co-Conspirator Statements, Pre-Trial Hearing on Their
Admissibility Pursuant to Fed.R.Evid. 801(d)(2)(E), filed May
9, 2017 (Doc. 1141)(“Gonzales Motion”); (ii)
Defendant Rudy Perez's Motion for Production of Alleged
Co-Conspirator Statements and for Pre-Trial Hearing on Their
Admissibility, filed August 21, 2017 (Doc. 1228)(“Perez
Motion”); (iii) the Opposed Motion for Specification of
Co-Conspirator Statements and a Pre-Trial Hearing on the
Statements' Admissibility, filed October 6, 2017 (Doc.
1303)(“C. Garcia Motion”); (iv) Motion to Prevent
the Admission of Statements of Non-Testifying Codefendants
Implicating Defendant Billy Garcia and for an Order for the
Government to Specify Such Statements Prior to Trial, filed
October 10, 2017 (Doc. 1307)(“B. Garcia Motion”);
(v) Motion for James Hearing and Determination of
Co-Conspirator Statements Admissibility at a Pre-Trial
Hearing, filed October 13, 2017)(Doc. 1317)(“J.
Gallegos Motion”); (vi) Defendant Shauna Gutierrez'
Opposed Motion for a James Hearing, filed October 13, 2017
(Doc. 1321)(“Gutierrez Motion”); (vii) Motion in
Limine to Exclude Statement of Cooperating Government
Witnesses, filed November 30, 2017 (Doc. 1514)(“Perez
MIL”); (viii) Opposed Motion in Limine to Exclude
Co-Defendant's [sic] Statements, filed December 1, 2017
(Doc. 1517)(“C. Garcia MIL”); (ix) Defendant
Anthony Ray Baca's Motion in Limine to Prohibit the
Government From Questioning Jerry Armenta About Defendant
Anthony Ray Baca's Involvement in Counts 6 & 7, filed
December 4, 2017 (Doc. 1540)(“Baca MIL”); (x)
Defendant Daniel Sanchez's Motion in Limine to Preclude
the Admission of Un-Confronted, Out of Court Statements
Proffered by the Government at the James Hearing,
filed January 8, 2018 (Doc. 1616)(“Sanchez MIL”);
and (xi) the Joint Motion to Renew Motion to Sever Defendants
Charged with Offenses in Counts 6 and 7, filed January 21,
2018 (Doc. 1664)(“Severance Motion”). The Court
held hearings on November 27-29, 2017, December 8, 2017,
December 19-20, 2017, and January 9, 2018. See
Transcript of Hearing (held November 27, 2017), filed
December 6, 2017 (Doc. 1545)(“Nov. 27 Tr.”);
Transcript of Hearing (held November 28, 2017), filed
December 6, 2017 (Doc. 1546)(“Nov. 28 Tr.”);
Transcript of Hearing (held November 29, 2017), filed
December 6, 2017 (Doc. 1547)(“Nov. 29 Tr.”);
Transcript of Hearing (held December 8, 2017), filed December
15, 2017 (Doc. 1577)(“Dec. 8 Tr.”); Transcript of
Hearing (held December 19, 2017), filed January 4, 2018 (Doc.
1608)(“Dec. 19 Tr.”); Transcript of Hearing (held
December 20, 2017), filed January 5, 2018 (Doc.
1610)(“Dec. 20 Tr.”); Transcript of Hearing (held
January 9, 2018), filed January 24, 2018 (Doc.
1683)(“Jan. 9 Tr.”). The primary issues are
whether the out-of-court statements -- largely statements of
Defendants Daniel Sanchez, Anthony Ray Baca, Carlos Herrera,
and Rudy Perez, and of cooperating Defendants and other
inmates -- that Plaintiff United States of America intends to
offer in evidence at trial to prove the matter asserted: (i)
can be admitted notwithstanding the Sixth Amendment to the
Constitution of the United States of America's
Confrontation Clause; (ii) can be admitted for their truth,
because --as coconspirator statements made during and in
furtherance of the conspiracy, see Fed.R.Evid.
801(d)(2)(E) -- they are not hearsay; (iii) can be admitted,
even though they are hearsay, as statements against penal
interest made by an unavailable declarant, see
Fed.R.Evid. 804(b)(3); (iv) can be admitted for their truth,
because, as admissions offered against Baca, Herrera, or
Perez, see Fed. R. Evid 801(d)(2)(A), they are not
hearsay; (v) can be admitted, with a limiting instruction, in
a joint trial if the statement is nontestimonial,
incriminates multiple Defendants, and is admissible against
some -- but not all -- of those Defendants; and (vi)
necessitate sufficiently many limiting instructions that the
Court should alter how the case should be tried. The Court
analyzes individually the out-of-court statements at issue
and concludes that it can admit nontestimonial statements
that are admissible against only some of the Defendants if it
gives a limiting instruction. While there will be multiple
limiting instructions, the United States' willingness to
Bruton-ize Baca's, Herrera's, and Perez'
statements removes statements that one Defendant made and
that directly incriminate other Defendants from the trial, so
the jury will never hear those statements. Thus, while the Defendants
are entitled to limiting instructions under the Federal Rules
of Evidence, there is not much, if anything, that the jury
could meaningfully use against the non-declarant Defendants.
Using the statements in this way does not violate the Fifth
or Sixth Amendments, and the Defendants will receive a just
and fair trial.
Court takes its background facts from the Second Superseding
Indictment, filed March 9, 2017 (Doc.
947)(“Indictment”). The background facts are
largely unchanged from those that the Court provided in its
Memorandum Opinion and Order, 2017 WL 6496441, filed December
18, 2017 (Doc. 1585). 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
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. 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
now has approximately 250 members, and “a
‘panel' or ‘mesa' (Spanish for table) of
leaders who issue 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
present investigation. See United States v. Garcia,
No. CR 15-4275, Memorandum Opinion and Order at 2, 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 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”). Memorandum Opinion and Order at 6, 2016
WL 7242579, at *3, filed October 28, 2016 (Doc. 753). 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 at 6-7, 2016 WL 7242579, at *3.
In November, 2015, the District Attorney dismissed the
charges against Montoya and Armenta -- as well as separate
charges against their alleged accomplice, Defendant Mario
Rodriguez, who had been charged with possession of a deadly
weapon by a prisoner, tampering, and conspiracy. See
Memorandum Opinion and Order at 7, 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 at 7, 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 SNM 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,
Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca,
Defendant Robert Martinez, Defendant Roy Paul Martinez,
 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.
the Indictment alleges that, on March 26, 2001, Defendants
Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and
Billy Garcia murdered “F.C.” Indictment at 9
(Count 1). On the same day, Lujan, B. Garcia, and Defendants
Eugene Martinez, Allen Patterson, and 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).
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, J. Gallegos and Defendants Santos Gonzales, Paul
Rivera, Shauna Gutierrez, and 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 criminal activity. In a
related case -- United States v. Baca, No. CR
16-1613 (D.N.M.)(Browning, J.) -- 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 separate prosecution of C.
Garcia for drug crimes, see United States of America v.
Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a
four-defendant prosecution for alleged violent crimes in aid
of racketeering, under 18 U.S.C. § 1959. See United
States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).
to rule 12(d) of the Federal Rules of Criminal Procedure, the
Court states its essential factual findings on the record.
See Fed. R. Crim. P. 12(d). The Court bases its
conclusions on the testimony it heard at its James
hearing as well as the evidence it admitted at that hearing.
The Court details that evidence and testimony below, in its
procedural background section. The Court makes these findings
by a preponderance of the evidence and only to determine
preliminary questions regarding whether evidence is
admissible. See Fed.R.Evid. 104(a). Notwithstanding
the Court's findings, all of the Defendants are presumed
innocent. The Court makes the following findings of fact:
conspiracy to kill Javier Molina existed. See,
e.g., Plea Agreement of Timothy Martinez, ¶ 8,
at 4-5, filed January 26, 2017 (Doc. 852)(“T. Martinez
Plea Agreement”); Plea Agreement of Jerry Armenta
¶ 8, at 4-5, filed December 13, 2016 (Doc.
802)(“Armenta Plea Agreement”).
Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela,
Sanchez, Herrera, and Perez were members of the Molina
conspiracy. See, e.g., T. Martinez Plea
Agreement ¶ 8, at 4-5; Armenta Plea Agreement ¶ 8,
Molina conspiracy continued until at least Molina's death
on March 7, 2014. See, e.g., T. Martinez
Plea Agreement ¶ 8, at 4-5; Armenta Plea Agreement
¶ 8, at 4-5.
conspiracy to assault Julian Romero existed. See,
e.g., Plea Agreement of Conrad Villegas ¶ 9, at
4, filed November 1, 2017 (Doc. 1392)(“Villegas Plea
Agreement”); Plea Agreement of Gerald Archuleta ¶
7, at 4-5, filed June 16, 2016 (Doc. 586)(“Archuleta
Baca, Archuleta, and Villegas were members of the Romero
conspiracy. See, e.g., Villegas Plea
Agreement ¶ 9, at 4; Archuleta Plea Agreement ¶ 7,
Romero conspiracy began in or about 2003 and continued until
Romero's assault on July 13, 2015. See,
e.g., Villegas Plea Agreement ¶ 9, at 4;
Archuleta Plea Agreement ¶ 7, at 4-5.
conspiracy to kill Dwayne Santistevan existed. See,
e.g., Plea Agreement of Robert Martinez ¶ 8, at
5-6 (Doc. 716)(“R. Martinez Plea Agreement”);
Plea Agreement of Roy Paul Martinez ¶ 7, at 4-5, filed
September 15, 2016 (Doc. 686)(“R.P. Martinez Plea
Baca, R.P. Martinez, and R. Martinez were members of the
Santistevan conspiracy. See, e.g., R.
Martinez Plea Agreement ¶ 8, at 5-6; R.P. Martinez Plea
Agreement ¶ 7, at 4-5.
conspiracy to kill Gregg Marcantel existed. See,
e.g., R. Martinez Plea Agreement ¶ 8, at 5-6;
R.P. Martinez Plea Agreement ¶ 7, at 4-5.
Baca, R.P. Martinez, R. Martinez, and C. Garcia were members
of the Marcantel conspiracy. See, e.g.,
Plea Agreement of Christopher Garcia ¶ 13, at 5-6, filed
January 25, 2017; (Doc. 1705); R. Martinez Plea Agreement
¶ 8, at 5-6; R.P. Martinez Plea Agreement ¶ 7, at
Court severed this case into two distinct trial groupings.
See Memorandum Opinion and Order, 2017 WL 3054511,
at *1, filed June 30, 2017 (Doc. 1204)(“Severance
MOO”). The Court will first try Counts 6-12 of the
Indictment and then, in a separate proceeding, it will try
Counts 1-5 alongside Counts 13-16. See Severance
MOO, 2017 WL 3054511, at *1. The first trial is set to begin
on January 29, 2018. See Fourth Scheduling Order
¶ 15, at 2, filed July 7, 2017 (Doc.
1205)(“Scheduling Order”). The second trial is
set to begin on April 9, 2018. See Scheduling Order
¶ 16, at 3.
several different motions, the Defendants ask the Court to
order the United States to identify “alleged
co-conspirator statements which the government seeks to
introduce under Fed.R.Evid. 801(d)(2)(E)” and to hold a
hearing, pursuant to United States v. James, 590
F.2d 575 (5th Cir. 1979)(“James”), to
determine, by a preponderance of the evidence, whether:
“(i) a conspiracy existed; (ii) the declarant and
defendant were members of that conspiracy; and (iii) the
statements the United States seeks to admit were made during
the course and in furtherance of the conspiracy, ”
Gonzales Motion at 1, 3. Accord Perez Motion at 1
(“Rudy Perez . . . hereby respectfully moves the Court
for the production of any and all alleged co-conspirator
statements that the government seeks to introduce under
Fed.R.Evid. 801(d)(2)(E) in this matter and for a pre-trial
hearing on the admissibility of those statements.”); C.
Garcia Motion at 1 (“[C. Garcia and Baca] respectfully
move this Honorable Court to order the government to specify
any purported statements by alleged co-conspirators it
intends to introduce under Federal Rule of Evidence
801(d)(2)(E) and show at a pretrial hearing that those
statements are admissible.”); B. Garcia Motion at 1-2
(“Defendant Billy Garcia moves . . . for an order for
the government to specify which such statements it intends to
offer so that the parties can litigate admissibility issues
outside the presence of the jury.”); J. Gallegos Motion
at 1 (“Defendants request that this Court hold a
pre-trial hearing, pursuant to United States v.
James, 590 F.2d 575, 581-582 (5th Cir. 1979).”);
Gutierrez Motion at 1 (“Defendant Shauna Gutierrez . .
. moves this Court for a pretrial evidentiary hearing to
determine the admissibility or inadmissibility of each and
every statement the Government intends to attribute to any
Defendant in this case as statements of
The Perez Motion Response.
United States filed a response to the Perez Motion.
See United States' Response to Defendant
Perez's Motion for Production of Alleged Co-Conspirator
Statements and for a James Hearing on Their
Admissibility , filed September 5, 2017 (Doc.
1243)(“Perez Motion Response”). The United States
indicates that it does not oppose holding a “pretrial
hearing to determine the existence of a conspiracy before
certain co-conspirator statements are allowed before the
jury.” Perez Motion Response at 1. The Perez Motion
Response identifies several statements that Perez made:
Rudy Perez made statements while in NMCD that were recorded.
Specifically, Perez stated that he supplied two pieces of
metal from his walker to be fashioned into shanks for use
during the murder. Perez said that he even verified with
co-defendant Daniel Sanchez that the weapons would be used
for the murder. Perez went into detail on why the murder
occurred, and why it was justified. Perez stated that he was
proud to be assisting the SNM in this manner. These
recordings took place in 2016.
Perez was interviewed back in 2014 as part of the original
investigation. However, at that time, Perez stated that he
was taking a shower and when he got out of the shower,
someone had removed a piece of metal from his walker.
Motion Response at 2-3. The United States asserts that, for a
statement to be admissible under rule 801(d)(2)(E), the court
needs to determine: “(1) a conspiracy existed; (2) that
both the declarant and the defendant were members of the
conspiracy; and (3) that the statements were made in
furtherance of the conspiracy.” Perez Motion Response
at 3-4. The United States then provides several examples of
statements made in furtherance of a conspiracy:
“[s]tatements made to induce enlistment or further
participation in the group's activities, to prompt
further action on the part of the conspirators, to reassure
members of a conspiracy's continued existence, to allay a
co-conspirator's fears, or keep co-conspirators abreast
of an ongoing conspiracy's activities.” Perez
Motion Response at 5. The United States observes that
“[s]ome of the conspiracy evidence in this case arises
from tape-recorded intercepts of direct conversations of the
defendants/co-conspirators, ” and predicts that
“[m]uch of this evidence will meet all aspects of the
three-part test for admitting co-conspirator statements on
its own accord, with little need for independent
evidence.” Perez Motion Response at 7. The United
States also predicts that “a significant amount of
evidence will not be introduced under Rule 801(d)(2)(E), but
rather through Rule 801(d)(2)(A) as admissions by the
defendant himself, ” and that other statements will be
offered for purposes other than the truth of the matter
asserted. Perez Motion Response at 7.
The November 27-29, 2017 and December 8, 2017
Court took up the Defendants' motions for a
James hearing in its November 27, 2017 hearing.
See Nov. 27 Tr. at 10:12-14 (Court). The Court
orally granted those motions to the extent that they seek a
James hearing. See Nov. 27 Tr. at 10:23-24
(Court)(“So I think we will have a James hearing . . .
.”); id. at 12:14-15 (Villa)(“I think
that was really the goal of the motions, to get us to the
James hearing . . . .”). But see C. Garcia
Motion at 7 (seeking “timely pre-hearing disclosure of
statements the government intends to introduce at the
James hearing”); B. Garcia Motion at 17-20
(arguing that specific statements are inadmissible); J.
Gallegos Motion at 5 (seeking to exclude statements
“from Defendant Santo Gonzales”); Gutierrez
Motion at 3-5 (arguing that Gutierrez is not a member of any
conspiracy); id. at 5-6 (arguing that Gutierrez'
statements were not in furtherance of a conspiracy). The
Court also provided initial guidance regarding the
James hearing's structure:
I don't think we should be trying to have a trial like
this, and just relying upon the Government's linking it
up down the road is the way to go. So I think that we will
have a James hearing, and the Government will have to produce
a live witness or witnesses. I don't think that a written
proffer is enough. The Government -- I mean, the Tenth
Circuit has also indicated that those are not favored. And so
I would prefer to have live witnesses, live witness or
The Government has asked that they be able to put on a case
agent that summarizes the co-conspirator statements. It seems
the Tenth Circuit has approved that. I'm not telling the
Government how to try their case, and I'm not going to
tell them how to do the James hearing. But you've got to
make your proof by a preponderance of the evidence. If you
think you can establish it with one agent, subject to
cross-examination, bringing in the statements, then the Tenth
Circuit seems to have approved that, and I will, too, but --
so it's not the method that I'm approving. You just
have a burden of proving it by a preponderance of the
evidence. If you can do it with one witness or witnesses,
that's -- the Government always has to make that
assessment as to how they're going to prove their case.
And I can't tell you in advance whether one witness or
more are going to be necessary. So you'll have to make
that judgment. But in certain situations the Tenth Circuit
has indicated that is appropriate.
Nov. 27 Tr. at 10:21-12:1 (Court). The United States then
proffered “about 14 plea agreements in this case which
will establish at least the first two requirements of James,
which is the existence of the conspiracy, as well as
membership in the conspiracy.” Nov. 27 Tr. at 17:9-13
United States stated that those plea agreements are
“basically the plea agreement of each defendant who has
pled guilty in this case, including admissions that a
conspiracy existed and admissions that other people remaining
in the case were members of the conspiracy.” Nov. 27
Tr. at 18:11-15 (Castellano). The Court then asked whether
any of the Defendants objected to the introduction of the
plea agreements as “documentary evidence.” Nov.
27 Tr. at 19:19-23(Court). B. Garcia objected, arguing that
the United States drafts the plea-agreement statements and
that those statements are “not subject to any kind of
evaluation here by the Court as to whether they're to be
trusted.” Nov. 27 Tr. at 19:11-18 (Castle). B. Garcia
admitted, however, that “as long as the defense has the
opportunity to call those witnesses and examine them . . .
that would probably be a sufficient remedy to allow us to
contest the information within those plea agreements.”
Nov. 27 Tr. at 20:9-21 (Castle). No other Defendant objected
to the admission of the plea agreements, so the Court
admitted those agreements as “Government's Exhibits
1 through 14 . . . for the purposes of the James
hearing.” Nov. 27 Tr. at 23:9-13 (Court).
that day, the United States reported to the Court that it had
reached an agreement with the Defendants regarding
James hearing procedure. See Nov. 27 Tr. at
102:8-23 (Castellano). The Defendants in the first trial
group indicated a preference to proceed directly to a
James hearing, “since we're here, and
it's the week after Thanksgiving, and we're going to
be in front of a jury in two months, we'd just like to
get a witness up and get it going.” Nov. 27 Tr. at
105:15-18 (Adams). The Court confirmed that “everybody
else, ” i.e., the second trial group,
“is going to get bifurcated, get to see the statements
first, then you get to decide whether you want a James
hearing? Everybody in agreement on that?” Nov. 27 Tr.
at 108:25-109:3 (Court.) None of the Defendants voiced an
objection. See Nov. 27 Tr. at 109:4-5 (Court).
United States then began the James hearing for the
statements it intends to offer under rule 801(d)(2)(E) at the
first trial by calling Federal Bureau of Investigation
Special Agent Byran Acee to the stand. See Nov. 27
Tr. at 145:23-24 (Castellano). Acee's direct examination
indicated that the United States intends to call “a
witness named Lupe Urquizo” at trial. Nov. 27 Tr. at
146:21-23 (Castellano). According to Acee's testimony,
Urquizo will testify that Baca told him “to get with
the shot callers down at the Southern New Mexico Correctional
Facility, or Southern,  and to let them know that Baca
wanted Javier Molina hit . . . and that if they didn't do
it, he told Urquizo to just stab him.” Nov. 27 Tr. at
147:8-16 (Acee). That conversation, according to Urquizo,
took place “while he was still at the Level 6 up at
PNM, the north facility.” Nov. 27 Tr. at 147:24-148:2
(Acee). Acee's direct examination disclosed another
out-of-court statement that Urquizo will relate at trial:
David Calbert, an uncharged SNM member, brought “the
paperwork indicating or substantiating the hit on Javier
Molina, ” Nov. 27 Tr. at 148:8-11 (Castellano, Acee),
and “explained to Urquizo that Baca wanted the
paperwork to go down to Southern in Las Cruces, ” Nov.
27 Tr. at 149:17-19 (Acee).
testified that Urquizo was subsequently transferred to
Southern, see Nov. 27 Tr. at 149: 22-25 (Castellano,
Acee), and that, while Urquizo was in orientation at
Southern, he “didn't have his property” and
could not “freely talk” to other inmates, but he
“had a conversation with both Mario Rodriguez and
Timothy Martinez, ” by holding notes up to a window.
Nov. 27 Tr. at 150:4-25 (Acee). According to Urquizo, M.
Rodriguez and T. Martinez asked, via note, whether he had the
Molina paperwork, and Urquizo replied that he had the
paperwork, “[b]ut that it was still in his
property.” Nov. 27 Tr. at 150:11-20 (Acee). Two days
later, again according to Urquizo, “Carlos Herrera
inquired whether or not Urquizo had the paperwork, ”
and Urquizo -- who “had just received his box of
property” -- gave the paperwork to Herrera as well as
“Dale Chavez, Juan Mendez, and Alex Munoz, ”
three other SNM members, “and each made a comment to
the effect of, Damn, this is it? It's just two sentences
in this report.” Nov. 27 Tr. at 151:1-13 (Acee).
also testified that M. Rodriguez sent a letter to Urquizo:
He sent it under the door. And in that Rodriguez -- he
communicated that Rodriguez and Sanchez were going to move on
Molina. Rodriguez explained the plan. And apologized to
Urquizo for moving so quickly. And that the reason he did
that is during the Molina hit there were actually supposed to
be three individuals that were supposed to be hit at the same
time. However, the paperwork didn't come down supporting
the subject being hit that Urquizo wanted hit. So that's
what that apology was about. And he wanted to -- he,
Rodriguez -- wanted to make sure that Urquizo wasn't
upset about that fact. He had a lot of respect for him, and
just said, Hey, we've got to move, and it's going to
And that was generally what was in that letter. And Urquizo
said he wrote back to Rodriguez and said he understood.
Nov. 27 Tr. at 152:8-24 (Acee). Acee stated that
“Urquizo said he heard Daniel Sanchez yell,
‘Fuck, yeah'” toward the end of the Molina
hit. Nov. 27 Tr. at 153:6-10 (Acee).
United States then turned its attention to “a couple of
[out-of-court] statements related to the Julian Romero
assault” that the United States may attempt to present
to the jury via Urquizo's trial testimony. Nov. 27 Tr. at
153:11-13 (Castellano). According to Urquizo's account,
Julian Romero was down here at the Southern Facility at the
time Urquizo and another member named Jonathan Gomez were in
charge of the pod. Word had come down via Jonathan Gomez that
they were to hit Julian Romero. And they picked Conrad
Villegas to do that. They discussed that. They agreed to it,
and they gave that instruction to Conrad. And he followed
through with it.
The other thing that Urquizo related was that it was
important to Baca --that is Anthony Baca -- that Julian not
be killed; that he just be stabbed or beat up, but not
Nov. 27 Tr. at 153:19-154:5 (Acee).
United States then began questioning Acee about out-of-court
statements concerning the Molina murder that -- the United
States contends -- M. Rodriguez made on the day of the Molina
murder and that the United States may introduce at trial via
Montoya's testimony. See Nov. 27 Tr. at
154:6-13, 155:16-18 (Castellano, Acee). Acee testified:
Mr. Montoya told me that sometime after 5:00 p.m., while in
the pod, Mario Rodriguez called out to him and told him to
follow him to Rodriguez' cell. Rodriguez gave Montoya a
shank and said that it was from Rudy Perez. Rodriguez told
Montoya that it was time to put in some work.
Montoya asked who, inquiring who was going to be the
recipient of the work, if you will. And Rodriguez answered
“Javier.” Montoya asked, “Why?” And
Rodriguez said, “Because he's a rat.” Montoya
asked to see the paperwork, and Rodriguez said that it had
already been passed to another pod, but that he didn't
need to worry because he, Rodriguez, had verified it, as had
“Dan Dan” or Daniel Sanchez. Montoya had some
other questions and asked where he was to actually hit
Molina. Rodriguez told him that it would be in Molina's
Montoya protested a little bit and said that he didn't
think that would be a good location because of the cameras.
He argued about the angles of the cameras with Rodriguez. And
Rodriguez ultimately said, “Dan doesn't want the
cameras covered. He has an evidentiary hearing coming up, and
needs to be seen on camera.”
. . . .
Mr. Rodriguez explained to Mr. Montoya that Jerry Armenta
would also have a shank and would help, and that Daniel
Sanchez had already talked to Armenta and Armenta was ready.
He also told Montoya that “Red, ” or Timothy
Martinez would be helping; that he'd go into Molina's
cell and get him high, and then knock him out, so that the
two Jerrys, Jerry Montoya and Jerry Armenta, could come in
and commence with stabbing Molina.
. . . .
Dan Sanchez came in sometime later and asked, [“]You
know what's up?” Montoya said, “Yeah.”
Sanchez said, “Okay, be trucha, ” which I
understand to mean to be careful or to watch out.
. . . .
Armenta explained that he was -- he, Armenta -- was perching
in front of his cell, which is just kind of squatting and
hanging out. Daniel Sanchez signaled for Montoya to go
upstairs because he'd been downstairs.
Montoya did. After getting to the top of the stairs, he
squatted next to Armenta, and in a low voice said to him,
said to Armenta that, “It's him or us, ” and
by “him, ” he was referring to Molina. And
Armenta basically repeated the same thing back, like,
“Yeah, it's either him or us.”
Nov. 27 Tr. at 155:19-159:2 (Acee).
United States then presented, via Acee's examination,
out-of-court statements regarding the Molina murder that it
may present to the jury by calling T. Martinez as a witness:
So on the morning of the Molina murder, Tim Martinez had come
back from his work detail at the wheelchair program. And
shortly after entering the pod, Mario Rodriguez called him
over, and then told him to go get high. Timothy thought that
was an unusual request. I think he described himself as not a
regular user of drugs. And so he asked Mario why. Mario
Rodriguez again told him, “Just trust me. Go get
high.” And Timothy kind of objected to that and kept
questioning him. So Mario said, “Sit down, I'll
explain what's going on.” And then they had a
conversation about what was to take place.
. . . .
It was explained to him that the paperwork on Molina had
arrived; that he was a snitch, and that he was to get hit.
And then from there they went into more detail.
. . . .
And [M. Rodriguez explained] that Daniel Sanchez had insisted
on Martinez participating. Specifically Rodriguez said,
“Dan is making you go.”
Martinez said, “Okay. What do I have to do?”
Rodriguez answered, “Dan wants you to go into the room
and beat him up so he can't leave.” By “him,
” that would be Molina. “So that he can't
leave the room and Jerry and Jerry” -- being Montoya
and Armenta -- “will go in and hit him. They have some
bone crushers. And Molina has to go.” By bone crushers,
that's a slang term for larger shanks.
. . . .
[Later, ] Sanchez was in the cell next door to Martinez and
began pounding on the wall. Sanchez asked of Martinez,
“Did ‘Blue' talk to you” -- something
to that effect, “‘Blue' talk to you
yet?” And Martinez told him that he, “Blue,
” or Rodriguez had talked to him.
Q. What was Daniel Sanchez' explanation to Timothy
Martinez about why he should be involved?
A. What Martinez told me -- and this is a direct quote --
“You've got to do this. You got to earn your
huesos, ” or your bones.
Sanchez went on about how the SNM had lost respect over the
years, and they needed to take things back to the old days
when the S used violence to get respect. Sanchez said,
“S is about violence. We get respect through
violence.” Martinez said that he questioned Sanchez
about why Molina had to be hit and why he needed to be
involved in it. Why he, Martinez, needed to be involved in
. . . .
[Sanchez] basically said that Martinez hadn't done
anything yet. He hadn't earned his bones, hadn't
committed any violent acts, and that he needed to do
something more significant than just bring drugs into the
. . . .
Martinez told me that Sanchez told him he'd have to do it
or else. And Martinez took that to understand that “or
else” would be you need to do this or you're going
to get hit.
Q. Now, did Mario Rodriguez at some point explain to Timothy
Martinez that he didn't want him to go? By that I mean go
to commit the murder?
A. Yes. As Mr. Martinez explained it, they were friends, and
that he had lobbied -- he, Mario Rodriguez -- had lobbied to
have Timothy not go and to get a pass on it. But that Daniel
Sanchez had insisted. And Rodriguez said -- and this is a
quote -- “But if it's your time, you've got to
go. You got to do this for the family. Then it will be
someone else's time.”
. . . .
Q. And was there an explanation by Mr. Martinez about
something to do with Mr. Molina's shank?
A. Yeah, quite by coincidence, Molina -- I mean, he had a
shank, but he gave it to Timothy Martinez that morning. He
was going to go shower, if I recall. And he said, Here, hold
my shank, hold my fiero, or whatever term he used. And
Timothy Martinez took the shank and put it in his cell in his
commissary bag. Timothy Martinez related that to Mario
Rodriguez. And I think they both just thought it was, based
on their comments, good fortune on their part that Molina
wouldn't have a shank and be able to fight back.
Q. And what was Mr. Rodriguez' comment to Timothy
Martinez about having taken the shank?
A. He said, “Perfect, now he can't stab you.”
Nov. 27 Tr. at 159:10-163: 25 (Castellano, Acee). Acee then
Martinez told me that Sanchez, Daniel Sanchez, had obtained
one of them [the shanks] from who they referred to as
“Fat Ass, ” which was sort of a in-house nickname
for Rudy Perez. Sanchez had told Martinez that Perez had
given him two pieces of metal from his walker, and that
that's what they'd made the shanks out of. Sanchez
had made the comment to Martinez, “What else is Fat Ass
going to do?” And actually, the comment made after that
was Martinez' opinion. So that concluded what Sanchez
said about that.
Nov. 27 Tr. at 164:4-14 (Acee). Acee added:
I specifically asked [T. Martinez] what conversation or what
statements were made by Mario Rodriguez when they were in the
cell, in Molina's cell. And Martinez said that Mario
Rodriguez was standing in the doorway. And as Molina was
getting up, Mario Rodriguez said, “He's getting up.
What the fuck?” Nov. 27 Tr. at 166:12-17 (Acee).
United States then transitioned to another set of statements,
which Baca made almost two years after the Molina murder,
see Nov. 27 Tr. at 164:21-23 (Acee), that it intends
to present to the jury:
Baca and Martinez [were] incarcerated up at the Level 6 at
PNM North. And Baca told Martinez, “If they would have
let me out, Javier wouldn't be dead, and that man would
still be alive. But they didn't, and what's done is
done. When they wouldn't let me out we had to make a
statement. They called my bluff. And now they have a dead man
on their hands.”
Q. Was there ever any indication that Mr. Baca had kept in
touch with Jonathan Gomez?
Q. And what was that discussion?
A. Jonathan Gomez, or “Baby G, ” was and is often
referred to as Mr. Baca's protege, and that
communications would come down to other members through
Jonathan Gomez, and that Jonathan Gomez had related to
Timothy Martinez and others that “Pup” didn't
trust Molina and to -- they should keep their eye on Molina.
Nov. 27 Tr. at 164:23-165:16 (Castellano, Acee). Acee
[A]fter Baca kind of went on a rant with Martinez about
Javier Molina, and the fact that the Corrections Department
should have listened to him, Baca.
Baca told Martinez that there was stuff in the works for
Marcantel and Santistevan. Specifically, he said that
he'd like to get the wardens, too. Baca explained that to
Martinez, that “If we hit them, what's the worst
that's going to happen? They'll send us out of state,
but then they'll ship us back. And then they'll know
we're for real. It started with Javier Molina, and now it
continues. Javier was a building block for bigger jobs for
Marcantel and for the respect we once had.”
Nov. 27 Tr. at 167:5-18 (Acee).
then described a set of statements attributed to C. Garcia
that the United States may introduce via T. Martinez'
Q. And what about statements relating from -- to Timothy
Martinez by Mr. Garcia, Christopher Garcia?
A. That conversation took place after the first wave of
indictments and take-down arrests. When they were out at the
Otero prison facility, Martinez said that Chris Garcia --
they were actually talking about the guy named Jeremiah
Martinez, a/k/a “Cyclone.” And the conversation
turned to Gregg Marcantel. At the time, Chris Garcia was
upset about the situation and blamed it on Baca. He
specifically said to Martinez, “Pup” -- which is
an alias for Baca -- “called me saying he needed guns.
It was right after the Holly Holmes fight and people were
shooting guns in the air. So “Pup” tells me he
needs some guns for a job to hit Marcantel and Santistevan.
And I thought: Who the fuck is going to do that?
‘Pup' was talking all drunk, saying Krazo” --
who is Eric Duran -- “had a phone. I didn't trust
Krazo so anyway.”
Q. And that was a statement by Christopher Garcia?
A. It was. He and Martinez continued to talk about it. And
that's where this Jeremiah Martinez comes up, and how
they acquire the firearm that's to be used.
Q. What was the nature of that conversation?
A. Garcia was kind of laying out what happened with the
Marcantel and the Santistevan hit, or the planned hit, and
why it was so screwed up. And he said, “I called
‘Cyclone'“ -- in this case that's
Jeremiah Martinez -- “for the guns. He gave me some
piece of shit .22 or .25” -- caliber. “Those
fucking things weren't going to do shit. They would have
just made Marcantel mad. ‘Cyclone' claimed it was
good one. He had used it a few times.” And Garcia said,
“It was a piece of shit, maybe one or two shots because
the clip was all fucked up.”
Nov. 27 Tr. at 167:19-169:6 (Castellano, Acee).
next day, the United States called FBI Agent Nancy Stemo to
the stand. See Nov. 27 Tr. at 40:2-7 (Castellano,
Court). Stemo described statements that the United States may
offer at trial via Armenta's testimony:
Daniel Sanchez ordered Armenta to carry out the hit on Javier
Molina because he needed to put in work for the SNM. And he
stated that if Armenta refused, he could also be killed.
Q. And what did he say that Mr. Sanchez said during the time
that Mr. Armenta was assaulting Javier Molina?
A. After Javier Molina exited his cell and Jerry Armenta and
Jerry Montoya were following Molina down to the bottom tier,
Armenta overheard Daniel Sanchez saying, “Get him, get
Nov. 28 Tr. at 40:23-41:8 (Castellano, Stemo). Stemo also
testified regarding several other out-of-court statements
that the United States may introduce at trial by calling
Armenta and M. Rodriguez to the stand:
Q. What did Mr. Armenta tell you about conversations he had
related to the Marcantel conspiracy to murder?
A. Jerry Armenta mentioned that Robert Martinez had told him
that Robert Martinez and Roy Martinez had put a hit order on
Gregg Marcantel and Dwayne Santistevan.
Q. Okay. Now, I want to turn your attention to a conversation
you had with Mario Rodriguez. Did you have a chance to speak
A. I did.
Q. . . . What did Mr. Rodriguez indicate about a statement
made to him by Daniel Sanchez related to the Molina
A. While Rodriguez and Daniel Sanchez were reading the
paperwork, Daniel Sanchez stated, “It's
Q. And in what context was that made in terms of reviewing
A. That the decision had been made because they had received
Q. And what did Daniel Sanchez want Timothy Martinez to do?
A. He wanted Timothy Martinez to be involved in some fashion
in the murder.
Q. I also want to ask you about a statement from Carlos
Herrera to Mr. Rodriguez about the Molina murder?
A. When Carlos Herrera gave Mario Rodriguez the paperwork,
Daniel Sanchez wanted to verify it, and Carlos Herrera told
[M. Rodriguez] to, “Get that shit fucking done.”
Q. And had Mr. Rodriguez volunteered to participate in the
A. He had. But Daniel Sanchez told him not to.
Q. And what was said from Mr. Sanchez about covering the
A. He stated he did not want the cameras covered because the
murder would be in a blind spot.
Q. Can you tell the Court about a statement made by Rudy
Perez when Mr. Sanchez was in his cell?
A. When Mario Rodriguez went to Rudy Perez' cell, Daniel
Sanchez pointed at a piece of Perez' walker, and Perez
stated he was “down for whatever, as long as it was not
Q. And what did Mr. Rodriguez say about a conversation he had
with Timothy Martinez, once Mr. Martinez returned from the
A. Rodriguez told Timothy Martinez to go get high because the
paperwork had arrived.
Q. What was the purpose of getting high, do you remember?
A. I don't.
Q. And was there a clarification about who the paperwork was
A. There was. Timothy Martinez initially volunteered to do
the hit, because he thought the paperwork on Jerry Montoya
had arrived. But Rodriguez clarified that the paperwork on
Javier Molina had arrived instead.
Q. And what statements did Timothy Martinez make about Javier
Molina's fiero or shank?
A. Martinez stated that Molina had given him his shank prior
to count, [sic] and Martinez had placed that shank inside of
a bag of canteen. Martinez later gave that shank to
. . . .
Q. Can you tell the Court whether Mr. Rodriguez confirmed to
Mr. Montoya that he had seen the paperwork on Javier Molina?
A. He did.
. . . .
Q. Once Mr. Montoya learned that the paperwork was there,
what was his response?
A. He said he would do it.
Q. What did Mr. Sanchez tell Mr. Rodriguez about leaving any
dope behind in Javier Molina's cell?
A. Mr. Sanchez told Rodriguez to not leave any dope behind in
Molina's cell and that they could go halfers on it later.
Q. Once they were inside Javier Molina's cell, what did
Mr. Rodriguez tell Timothy Martinez about exiting the cell?
A. Rodriguez told Martinez to exit the cell.
Q. What happened next?
A. Jerry Armenta and Jerry Montoya entered and began stabbing
Molina. Rodriguez instructed both Armenta and Montoya to not
let Molina out of the cell. Rodriguez overheard Montoya tell
Molina to stay back, and Molina did not.
Q. And when Mr. Molina made a statement that he was done,
saying, Come on, I'm done now, what was Rodriguez'
response to that?
A. He told Molina that he was no carnal.
Q. When it came to Mr. Herrera wanting to pass the paperwork
to green pod, what was Mr. Rodriguez' response to him?
A. Rodriguez told Herrera not to pass the paperwork to green
pod because the individuals in green pod had been protecting
Nov. 28 Tr. at 41:14-46:15 (Castellano, Stemo). Stemo then
identified a document as a “transcript of a recording
of conversations between Rudy Perez and [Billy Cordova],
” that Cordova recorded in February, 2016. Nov. 28 Tr.
at 46:24-47-5. The Court admitted that transcript as
Government's James Hearing Exhibit 16.
See Nov. 28 Tr. at 48:4-5 (Castellano); id.
at 50:16-19 (Court).
November 29, 2017, the United States called Acee to the stand
again. See Nov. 29 Tr. at 228:11-12 (Acee). The
United States asked Acee “about some letters that were
either intercepted or retrieved by STIU [Security Threat
Investigation Unit] agents in this case related to the . . .
conspiracies to murder Mr. Marcantel and Mr.
Santistevan.” Nov. 29 Tr. at 229:3-7 (Castellano). The
first letter “was received by STIU on or about March
27, 2015, ” Nov. 29 Tr. at 229:9-10 (Castellano), and
is from Roy Martinez, a/k/a “Shadow.” It's
addressed to Juan Carlos Gutierrez, a/k/a,
“Gotti.” In this letter Martinez orders Gutierrez
to kill Gregg Marcantel pursuant to orders that were given to
him by Anthony Baca, while they were housed together at the
Southern New Mexico Correctional Facility in 2013.
The letter goes on instructing Gutierrez to contact other
members on the street to make this happen. And if the other
members on the street failed to help carry out the hit, they
should be killed. And that other members would be in contact
with him to help him -- him being, excuse me, Gutierrez -- to
help ensure that that hit took place.
Nov. 29 Tr. at 229:16-230:4 (Acee). The second letter
was written by Roy Martinez, addressed to Damian Lobrado,
a/k/a “Cuba.” And in this letter Martinez tells
him that the time has come for “Cuba” to show his
loyalty to the S, which he had not yet done, and that he was
to kill Gregg Marcantel.
It also goes on to say that Gutierrez -- the person that we
just talked about on the first letter would be in contact,
and that they should work together. Other members would be in
touch, and that they should not fail this mission.
Nov. 29 Tr. at 230:9-19 (Acee). The third letter
is also from Roy Martinez. This one is addressed to Arthur
Chavez, a/k/a “Lonely.”
Q. What's the content? Well, who is it written to?
A. Again, this is to Chavez, a/k/a “Lonely, ” and
Martinez is telling him that at the direction of the viejo,
who we believe is Anthony Baca, and that it's about a
list Anthony Baca and Chavez had previously discussed.
Martinez said that Gregg Marcantel had degraded Anthony Baca
and dishonored the SNM. In the letter he ordered Chavez to
handle the hit carefully and discreetly. Martinez concluded
the letter by threatening Chavez that there were other
members on the street to take out any members who refused to
carry out the hit. Martinez advised that there would be no
more second chances. And then Martinez again referenced a hit
list that Anthony Baca discussed with Chavez, and named
Marcantel as the priority. And I'm quoting Martinez; he
said, “He must go, ” a reference to Marcantel.
Q. And further down on that document, do you see where there
is additional information about a green light for members who
refused to carry out the hit?
A. Yes. Martinez gave Chavez the green light to take out any
SNM members who refused to assist with completing the
objective of killing Marcantel. Martinez also gave Chavez a
deadline of August 31, 2015, at midnight, to complete the
hit. Martinez also threatened Chavez that if he failed to do
this or refused to conduct it, that he'd be hit as well,
as would any other member that failed to go along with the
He also claimed -- Martinez claimed that there were three SNM
members watching Chavez at the time Chavez was on the street.
Q. What was purpose of watching him?
A. To ensure that he was making good on progressing on the
Nov. 29 Tr. at 230:25-232:14 (Castellano, Acee). The fourth
from Robert Martinez, a/k/a “Baby Rob, ” and
it's addressed to Sammy Griego, a/k/a “Sammy
G.” In this letter Robert Martinez stated that the SNM
leadership had decided to allow Griego one opportunity to
show his loyalty to the SNM by taking out Gregg Marcantel and
Dwayne Santistevan. In the letter Martinez gave Griego the
flexibility to work out the details of the hits on his own.
Martinez threatened Griego by stating if he failed to conduct
the hits, he'd be taken out.
Martinez also told Griego that other SNM members would be in
touch with him; that they should work together. Martinez
instructed Griego to get in touch with Gerald Archuleta,
In the letter Archuleta is referred to as
Nov. 29 Tr. at 232:17-233:7 (Acee). The fifth and final
is from Robert Martinez, “Baby Rob, ” to Ruben
Hinojosa. In this letter Martinez stated that the SNM
leadership are tired of SNM members getting out of the prison
and doing nothing for the SNM. Martinez said that this type
of behavior would no longer be tolerated and ordered Ruben to
show his loyalty by taking out Gregg Marcantel and the Dwayne
Santistevan. Martinez threatened Ruben just like the other
letters, and advised that other SNM members would be getting
in contact with him. And concluded that, if he didn't
follow through with the mission, that his life would be in
Nov. 29 Tr. at 233:10-22 (Acee). The United States then
turned from letters to out-of-court statements that Baca
[I]n reference to the hits on Marcantel and Santistevan, the
CHS [Confidential Human Source] told me and the other agents
that Anthony Baca was eager to hit both Marcantel and
Santistevan; that according to this source, Baca told the
source that he was excited about the recognition the SNM
would get all over the country if they were successful.
This source claims that Baca told him that not even the
Mexican Mafia had been able to kill a prison director or
cabinet secretary. The CHS stated that Baca first ordered
Billy Cordova, a/k/a “Little Shadow, ” and Robert
Sanchez, a/k/a, “Tiny, ” to hit STIU
Administrator Dwayne Santistevan back in 2014, when they were
both released from prison. However, both got picked up while
they were on parole, and were unable to enact that plan.
. . . .
Okay, so in October, on October 22, 2015, as part of our
investigative strategy, Anthony Baca was returned to New
Mexico from U.S. Prison -- one of the facilities, one of the
four facilities up in Florence, Colorado. He was housed at
the Level 6 facility, and he was housed next to one of our
confidential human sources.
We utilized electronic surveillance, both what I'll refer
to as body wires or ELSUR devices, as well as what would
otherwise be considered a contraband cellular telephone that
I had a wire interception order on.
During Mr. Baca's incarceration at the Level 6, Mr. Baca
and the CHS, as well as other people, other SNM members in
and around the CHS, engaged in conversations. Much of those
conversations were recorded via the body wire and/or the
The CHS had a reputation for having phones in the past, and I
don't think it surprised anyone that he had one in this
circumstance. And so as I mentioned numerous phone calls were
made and recorded, as were conversations.
Q. And what was said about the conspiracy to kill Messrs.
Marcantel and Santistevan?
A. Quite a bit.
. . . .
“Additionally, upon his return to New Mexico, Baca
added STIU Coordinator Adam Vigil to the hit list. He added
Vigil because Vigil was scheduled to testify against the SNM
as an expert witness for the State of New Mexico in the
Molina homicide prosecution.”
. . . .
“CHS says to ‘Pup' that Robert” -- in
this case Robert Martinez -- “wrote ‘Pup' a
wila saying he was going to take care of Santistevan because
he knows ‘Pup' hates him. ‘Pup' responds
. . . .
“‘Pup' explains that Javier Molina and Jerry
Montoya were close despite what people thought.
Javier would go to Montoya's door and call him names so
people thought there was a beef. But they were actually
close. ‘Pup' told Montoya that if Javier kept
talking to him like that, then Montoya needed to hit Javier.
But Montoya told ‘Pup' it was not serious.
‘Pup' then said, ‘I even told ‘Conejo,
' Samuel Silva, ‘I'm going to push this shit,
. . . .
“‘Pup' tells CHS to have Mario,
“Poo-poo, ” who is Mario Montoya hit Santistevan,
and/or Adam Vigil, not Marcantel, and have Chris Garcia
finance it. He says it needs to be done because the
administration is going to tear us to shreds little by
little. ‘Pup' says after the hits are done, all the
brothers will be separated in various states, and that
communication with one another will be critical.”
. . . .
“‘Pup' decided that it's better to”
-- I believe that's a typo. It says his; I think it
should say “hit. “‘Pup' decided that
it's better to hit Santistevan and Adam Vigil because
they are the one telling lies to Marcantel. Once the hits are
carried out and the investigation is done, the news media
will realize the corruption and scandals in the prison system
and fire Marcantel. ‘Pup' is adamant that he wants
it done. And says the worst that will happen to the SNM is
that they will be sent out of state.”
“‘Pup' wants research to be done on where
Vigil and Santistevan live. He believes that the warden lives
on prison grounds on Oasis Street, but also observed other
houses that could belong to Vigil or Santistevan. He says it
will be easier to get them if they do not reside on the
prison grounds. He also says he wants to bring down Bustos, a
former Associate Warden, who ‘Pup' blames for
sending him to the ADX. ‘Pup' does not specify that
he wants Bustos hit, but it appears he wants the get him in
trouble. ‘Pup' believes that Bustos owns a Santa Fe
real estate company.”
. . . .
Q. And what is Mr. Baca's statement about where he
believes Mr. Marcantel lives in the next statement?
A. “‘Pup' believes Marcantel also lives on
Q. And just to be clear, for the Court's determination on
these statements, at any point did Mr. Baca talk about
murdering Mr. Vigil with anyone other than a cooperator that
you're aware of?
A. I think he talks about it with Mario Rodriguez,
Q. I just want to make sure we're keeping track of who