United States District Court, D. New Mexico
Federici Attorney for the United States and Maria Ysabel
Armijo Randy M. Castellano Matthew Beck Assistant United
States Attorneys Attorneys for the Plaintiff
Theresa M. Duncan Duncan, Earnest, LLC and Marc M. Lowry
Rothstein Donatelli, LLP Attorneys for Defendant Anthony Ray
Christopher W. Adams and Amy Sirignano Law Office of Amy
Sirignano, P.C. Attorneys for Defendant Christopher Garcia
Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC
Attorney for Manuel Jacob Armijo
E. Lopez, Jr. Attorney for Frederico Munoz
F. Kochersberger, III-Business Law Southwest, LLC Attorney
for Sergio Loya Rodriguez
Burgess-Farrell Barry G. Porter Burges & Porter Law, LLC
Attorneys for Manuel Benito
R. Esquibel and R. Scott Reisch Reisch Law Firm, LLC
Attorneys for Vincent Garduno
Grano Attorney for Mandel Lon Parker
Baiamonte and Ahmad Assed Ahmad Assed & Associates
Attorneys for Daniel Archuleta
Noriega and Amy E. Jacks Law Office of Amy E. Jacks Attorneys
for Defendant Daniel Sanchez
A. Morrissey and Gregory M. Acton Attorneys for Anthony
Moran Davidson and Billy R. Blackburn Attorneys for Defendant
Arturo Arnulfo Garcia
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States'
Sealed Motion Regarding Attorney Conflict, filed April 30,
2018 (Doc. 599)(“Motion”). The primary issue is
whether the Court must disqualify Billy Blackburn, who
represents Defendant Arturo Arnulfo Garcia, because Mr.
Blackburn represented James Garcia -- a potential witness for
Plaintiff United States of America -- in a 1995 state-court
prosecution for murder, evidence tampering, and firearm
possession. The Court will not disqualify Mr. Blackburn,
because Mr. Blackburn can continue to represent A. Garcia
without violating his continuing ethical duties to J. Garcia
as long as Mr. Blackburn does not cross examine J. Garcia.
The Court will appoint an additional attorney to represent A.
Garcia who can zealously cross examine J. Garcia so that Mr.
Blackburn will not have to do so. Even if Mr. Blackburn's
prior representation of J. Garcia implicates A. Garcia's
constitutional right to the effective assistance of counsel,
A. Garcia's knowing and intelligent waiver means that Mr.
Blackburn does not need to withdraw from this case.
Accordingly, the Court grants the Motion in part and denies
it in part, and the Court will not disqualify Mr. Blackburn
if the Court can secure an additional attorney for A. Garcia
and A. Garcia waives any constitutional issues.
Court takes its background facts from the Superseding
Indictment, filed March 9, 2017 (Doc.
372)(“Indictment”). The Court does not set forth
these facts as findings or the truth. The Court recognizes
that the factual background is largely the United States'
version of events and that the Defendants are all presumed
case deals with the crimes that the Syndicato de Nuevo Mexico
(“SNM”) allegedly committed through its members.
See Indictment ¶¶ 1, 3, at 1-2. The 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 ¶ 1, at 2. The SNM
constitutes an enterprise “as defined in Title 18,
United States Code, Sections 1959(b)(2) and 1961(4), that is,
a group of individuals associated in fact that engaged in,
and the activities of which affected interstate and foreign
commerce.” Indictment ¶ 2, at 2. The enterprise is
“an ongoing organization whose
members/prospects/associates functioned as a continuing unit
for a common purpose of achieving the objectives of the
enterprise.” Indictment ¶ 2, at 2.
is a prison gang formed in the early 1980s at the
Penitentiary of New Mexico (“PNM”) after a
violent prison riot at PNM during which inmates seriously
assaulted and raped twelve correctional officers after taking
them hostage. See Indictment ¶ 3, at 2. During
the riot, thirty-three inmates were killed, and over 200 were
injured. See Indictment ¶ 3, at 2. After the
PNM riot, the SNM expanded throughout the state's prison
system and has had as many as 500 members. See
Indictment ¶ 4, at 2. The SNM now has approximately 250
members, and “a ‘panel' or ‘mesa'
(Spanish for table) of leaders who issue orders to
subordinate gang members.” Indictment ¶ 4, at 2-3.
The 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 ¶¶ 3, 5, at 2-3. 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 the profit from narcotics trafficking.
See Indictment ¶ 5, at 3. Members who fail
“to show continued loyalty to the gang” may be
assaulted or murdered. Indictment at 4. The SNM also
intimidates and influences smaller New Mexico Hispanic gangs
to expand its illegal activities. See Indictment
¶ 6, at 3. If another gang does not abide by the
SNM's demands, the SNM will assault or kill one of the
other gang's members to show its power. See
Indictment ¶ 6, at 3. The SNM's rivalry with other
gangs also manifests itself in beatings and stabbings within
the prison system. See Indictment ¶ 7, at 4.
The 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 ¶ 7, at 4. “Similarly, a
member of the SNM Gang is expected to confront and attack any
suspected law enforcement informants, cooperating
witness[es], homosexuals, or sex offenders.” Indictment
¶ 8, at 4. To achieve its purpose of maintaining power,
the SNM uses intimidation, violence, threats of violence,
assault, and murder. See Indictment ¶¶
6-8, at 3-4. The SNM as an enterprise generates income by
having its members and associates traffic controlled
substances and extort narcotic traffickers. See
Indictment ¶ 7, at 4. The 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, 221 F.Supp.3d 1275, 1277 (D.N.M.
2016)(Browning, J.). The other relevant facts giving rise to
this case are as follows.
12(d) of the Federal Rules of Criminal Procedure states that,
“[w]hen factual issues are involved in deciding a
motion, the court must state its essential findings on the
record.” Fed. R. Crim. P. 12(d). There are factual
issues involved in deciding the Motion. Accordingly, the
Court makes the following findings of fact in accordance with
June, 1994, J. Garcia shot and killed a man named Tony
Lucero; he then hid the handgun that he used. See State
v. Garcia, 94-CR-1507, Grand Jury Indictment at 1-2
(Second Judicial District Court, County of Bernalillo, State
of New Mexico), filed in federal court April 30, 2018 (Doc.
599-1); State v. Garcia, 94-CR-1507, Verdict Forms
at 1-4 (Second Judicial District Court, County of Bernalillo,
State of New Mexico), filed in federal court April 30, 2018
(Doc. 599-1)(“State Verdict”).
1995, a jury convicted J. Garcia of Second Degree Murder,
Tampering with Evidence, and Using a Firearm in Commission of
Second Degree Murder. See State v. Garcia,
94-CR-1507, Record of Trial at 1 (Second Judicial District
Court, County of Bernalillo, State of New Mexico), filed in
federal court April 30, 2018 (Doc. 599-1)(“State Trial
Record”); State Verdict at 1-4.
Blackburn represented J. Garcia in that case. See
State Trial Record at 1.
murder in State v. Garcia was not SNM related, but
J. Garcia was a member of a street gang at that time. See
United States v. DeLeon, No. CR 15-4268, Transcript of
Motion Proceedings at 16:4-6 (taken April 4,
2018)(Blackburn), filed April 24, 2018 (Doc.
2150)(“April Tr.”)(“[The murder] involves a
gang matter, of which wasn't SNM, but for which he went
to prison on.”); id. at 146:25-147:1
(Blackburn); id. at 147:3-5 (Beck)(“[W]e
don't take the position that this was an SNM-related
state court imposed a twenty-four year sentence. See
State v. Garcia, 94-CR-1507, Judgment, Sentence and
Commitment at 2 (Second Judicial District Court, County of
Bernalillo, State of New Mexico), filed in federal court
April 30, 2018 (Doc. 599-1).
this case, Mr. Blackburn represents A. Garcia. See
CJA 20: Appointment of Attorney Billy R. Blackburn for Arturo
Arnulfo Garcia by District Judge James O. Browning, filed
March 10, 2017 (Doc. 375)(text-only order).
United States intends to call J. Garcia as a trial witness.
See Motion at 2.
Garcia will not waive any conflicts of interest that arise as
a result of Mr. Blackburn's present representation of A.
Garcia. See April Tr. at 279:19-20 (Court).
Scott Davidson -- A. Garcia' second court-appointed
attorney -- may be privy to confidential information relating
to Mr. Blackburn's 1995 representation of J. Garcia.
Court plans to appoint a third attorney -- Laura Udall -- to
represent A. Garcia and cross examine J. Garcia.
United States believes that more than ten years have passed
since J. Garcia was released from confinement for his 1995
conviction and that rule 609(b) of the Federal Rules of
Evidence consequently renders evidence of that conviction
inadmissible to attack J. Garcia's character for
truthfulness, so the United States does not plan on eliciting
that conviction during J. Garcia's direct examination.
When calling witnesses who are convicted criminals in
United States v. DeLeon, the United States has
consistently offered their convictions into evidence during
its direct examinations. See, e.g.,
United States v. DeLeon, No. CR 15-4268, Transcript
of Trial Proceedings at 10:12-11:10 (taken February 16,
2018)(Castellano, Martinez), filed April 3, 2018 (Doc.
2035)(“I want to go over some of your criminal history
with you.”); United States v. DeLeon, No. CR
15-4268, Transcript of Trial Proceedings at 9:24-10:1 (taken
February 8-9, 12, 2018)(Armenta, Castellano), filed April 3,
2018 (Doc. 2036)(“Now, how many convictions do you have
for drug trafficking?”); United States v.
DeLeon, No. CR 15-4268, Transcript of Trial Proceedings
at 18:15-18 (taken February 14, 2018)(Archuleta, Beck), filed
April 3, 2018 (Doc. 2037)(“Is this your judgment,
sentence, and commitment when you were sentenced for
involuntary manslaughter?”); id. at 20:3-8
(Archuleta, Beck); id. at 20:25-21:3 (Archuleta,
Beck); id. at 21:11-21 (Archuleta, Beck); United
States v. DeLeon, No. CR 15-4268 at 12:21-13:7 (taken
February 7-8, 2018)(Armijo, Rodriguez), filed April 3, 2018
(Doc. 2041)(“Now, I want to talk a little bit about
your criminal history.”).
trial, the United States will likely attempt to elicit
testimony from J. Garcia regarding SNM narcotics and firearms
deals, circa 2011 and 2012, involving Defendant Sergio Loya
Rodriguez, see Indictment at 35, 37, and the murder
of an SNM gang member, see id. at 35.
United States might also attempt to elicit testimony from J.
Garcia about conversations he had with SNM gang member Edward
Troup, which related to the murders of SNM members Freddy
Sanchez and Frank Castillo. See Indictment at 18,
27; United States v. DeLeon, No. CR 15-4268,
Interview at 2-3, filed March 9, 2018 (Doc. 1909-1).
March 9, 2017, a federal Grand Jury in the District of New
Mexico returned a Indictment in this case charging A. Garcia
in Count 1 with Racketeering Conspiracy in violation of 18
U.S.C. § 1962(d). See Indictment ¶ 1, at
1-2. The Indictment alleges that A. Garcia was an SNM gang
member and leader involved in various overt acts, including,
among others: (i) ordering the Sanchez murder; (ii) inducting
Rodriguez into the SNM; and (iii) facilitating narcotics
deals. See Indictment at 24, 26-27, 30, 32. On March
10, 2017, the Court appointed Mr. Blackburn as A.
Garcia's attorney. See CJA 20: Appointment of
Attorney Billy Blackburn for Arturo Arnulfo Garcia by