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United States v. Deleon

United States District Court, D. New Mexico

March 7, 2018

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.

          John 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

          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 Armenta0

          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

          Lisa Torraco Albuquerque, New Mexico --and-- 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


         THIS 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[1] 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.[2] 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.


         The 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 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. 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.

         In 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.

         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 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, [3] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [4] 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, 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).

         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, 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).

         For 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.)[5] -- 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).[6] 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.).


         Pursuant 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:

         1. A 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”).

         2. 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, at 4-5.

         3. The 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.

         4. A 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 Plea Agreement”).

         5. Baca, Archuleta, and Villegas were members of the Romero conspiracy. See, e.g., Villegas Plea Agreement ¶ 9, at 4; Archuleta Plea Agreement ¶ 7, at 4-5.

         6. The 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.

         7. A 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 Agreement”).

         8. 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.

         9. A 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.

         10. 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 4-5.


         The 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.

         1. The Motions.

         In 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 co-conspirators.”).

         2. The Perez Motion Response.

         The 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 [1228], 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.

         Perez 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.

         3. The November 27-29, 2017 and December 8, 2017 Hearings.

         The 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 witnesses.
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 (Castellano).

         The 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).[7]

         Later 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).

         The 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, [8] 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).[9]

         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).

         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 happen quickly.
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).

         The 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 killed.

Nov. 27 Tr. at 153:19-154:5 (Acee).

         The 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 cell.
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).

         The 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 it.
. . . .
[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 institution.
. . . .
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 testified:
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).

         The 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?
A. Yes.
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 testified:

[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).

         Acee then described a set of statements attributed to C. Garcia that the United States may introduce via T. Martinez' testimony:

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).

         The 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 him.”

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 to him?
A. I did.
Q. . . . What did Mr. Rodriguez indicate about a statement made to him by Daniel Sanchez related to the Molina paperwork?
A. While Rodriguez and Daniel Sanchez were reading the paperwork, Daniel Sanchez stated, “It's done.”
Q. And in what context was that made in terms of reviewing the paperwork?
A. That the decision had been made because they had received the paperwork.
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 murder?
A. He had. But Daniel Sanchez told him not to.
Q. And what was said from Mr. Sanchez about covering the cameras?
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 me.”
Q. And what did Mr. Rodriguez say about a conversation he had with Timothy Martinez, once Mr. Martinez returned from the wheelchair program?
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 for?
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 Rodriguez.
. . . .
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 Molina.

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).

         On 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 mission.
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 mission.

Nov. 29 Tr. at 230:25-232:14 (Castellano, Acee). The fourth letter is

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, a/k/a “Styx.”
In the letter Archuleta is referred to as “Grandma.”

Nov. 29 Tr. at 232:17-233:7 (Acee). The fifth and final letter:

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 jeopardy.

Nov. 29 Tr. at 233:10-22 (Acee). The United States then turned from letters to out-of-court statements that Baca made.

[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 contraband phone.
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 with ‘Yes.'“
. . . .
“‘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, eh.'?
. . . .
“‘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 prison grounds.”
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, “Blue.”
Q. I just want to make sure we're keeping track of who ...

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