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United States v. Baca

United States District Court, D. New Mexico

July 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY RAY BACA, a.k.a. “Pup, ” CHRISTOPHER GARCIA, SERGIO LOYA RORDIGUEZ, a.k.a “Churro, ” MANUEL BENITO, a.k.a. “Panther, ” VINCENT GARDUÑO a.k.a. “Fatal, ” MANDEL LON PARKER, a.k.a. “Chuco, ” DANIEL ARCHULETA, a.k.a. “Smurf, DANIEL SANCHEZ, a.k.a. “Dan Dan, ” ANTHONY CORDOVA, a.k.a. “Anton and ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” Defendants.

          Todd Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC Albuquerque, New Mexico Attorney for Manuel Jacob Armijo

          Louis E. Lopez, Jr. El Paso, Texas Attorney for Frederico Munoz

          Donald F. Kochersberger, III Business Law Southwest, LLC Attorney for Sergio Loya Rodriguez

          Susan Burgess-Farrell Barry G. Porter Burgess & Porter Law, LLC Albuquerque, New Mexico Attorneys for Manuel Benito

          Diego R. Esquibel The Barnett Law Firm Albuquerque, New Mexico --and-- R. Scott Reisch Reisch Law Firm, LLC Denver, Colorado Attorneys for Vincent Garduno

          Marc Grano Grano Law Offices Las Vegas, New Mexico Attorney for Mandel Lon Parker James Baiamonte Albuquerque, New Mexico --and--- 16 - Ahmad Assed Ahmad Assed & Associates Albuquerque, New Mexico Attorneys for Daniel Archuleta

          Lauren Noriega The Noriega Law Firm Los Angeles, California --and-- Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California Attorneys for Defendant Daniel Sanchez

          Marcia A. Morrissey Santa Monica, California --and-- Gregory M. Acton Albuquerque, New Mexico Attorneys for Anthony Cordova

          Scott Moran Davidson Albuquerque, New Mexico --and-- Laura E. Udall Cooper & Udall, PC Tucson, Arizona --and-- Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff United States of America's objection -- which the United States articulates in the Email from Randy Castellano to the Court (dated July 8, 2018), filed July 16, 2018 (Doc. 836)(“Objection”) -- to the Court's Third Proposed Preliminary Jury Instructions, filed July 8, 2018 (Doc. 784). The Court's Third Proposed Preliminary Jury Instructions states:

To find Mr. Cordova guilty of the crime of Committing Violent Crimes in Aid of Racketeering, [1]you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: the existence of an “enterprise” as defined in 18 U.S.C. § 1959(b)(2), on or about February 4, 2005;
Second: the charged enterprise was an enterprise engaged in, or the activities of which affected, interstate or foreign commerce, on or about February 4, 2005;
Third: the charged enterprise was an enterprise engaged in “racketeering activity” as defined in 18 U.S.C. §§ 1959(b)(1) and 1961(1), on or about February 4, 2005;
Fourth: Mr. Cordova committed one of the following crimes -- or conspired or attempted to commit one of these crimes -- which crime violated state or federal laws: murder, assault with a dangerous weapon, and assault with dangerous weapon resulting in serious bodily injury, on or about February 4, 2005[2]; and
Fifth: the crime of violence[3] was committed either: (i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from the charged enterprise; or (ii) for the purpose of gaining entrance to or maintaining or increasing position in the charged enterprise.

         Third Proposed Preliminary Jury Instructions at 4-5. The Court overrules the United States' Objections.

         PROCEDURAL BACKGROUND

         In the Court's Second Proposed Jury Instructions, the Court states:

         To find Mr. Cordova guilty of the crime of Committing Violent Crimes in Aid of Racketeering, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the existence of an “enterprise” as defined in 18 U.S.C. § 1959(b)(2);
Second: the charged enterprise engaged in, or its activities affected, interstate or foreign[4]commerce;
Third: the charged enterprise engaged in “racketeering activity” as defined in 18 U.S.C. §§ 1959(b)(1) and 1961(1);
Fourth: Mr. Cordova committed one of the following crimes -- or conspired or attempted to commit one of these crimes -- which crime violated state or federal laws: murder, assault with a dangerous weapon, and assault with dangerous weapon resulting in serious bodily injury; and
Fifth: the crime of violence was committed either: (i) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from the charged enterprise; or (ii) for the purpose of gaining entrance to or maintaining or increasing position in the charged enterprise.

         Court's Second Proposed Preliminary Jury Instructions at 4-5, filed July 5, 2018 (Doc. 775).

         Cordova objected to the Second Proposed Jury Instructions, because, according to Cordova, an instruction regarding VICAR's first and third elements “should contain a temporal requirement, i.e., that the enterprise existed at the time of the VICAR predicate act and that the enterprise was engaged in racketeering activity at the time of the VICAR predicate act.” Defendant Anthony Cordova's Objection to the Court's Second Proposed Preliminary Jury Instruction at 1-2, filed July 5, 2018 (Doc. 778)(“Cordova Objection”). Specifically, Cordova asked the Court to amend the first and third VICAR elements so that they conclude with the phrase “at the time of the alleged crime of violence.” Cordova Objection at 2.

         The Court granted, in essence, the Cordova Objection when, in the Third Preliminary Jury Instructions, the Court included a temporal requirement in its VICAR instruction. Specifically, the Court appended the phrase “on or about February 4, 2005, ” to the first four VICAR elements, e.g., “the existence of an ‘enterprise' as defined in 18 U.S.C. § 1959(b)(2), on or about February 4, 2005.” Third Proposed Jury Instructions at 4-5.

         The United States objected to the Court's Third Proposed Jury Instructions. See Objection at 1. The United States contends that, in United States v. DeLeon, CR No. 15-4268, the United States made a similar objection to the VICAR instructions in the Court's Eighth Proposed Jury Instructions, filed March 1, 2018 (Doc. 1864), which the Court sustained. See United States' Objections to Court's Eighth Proposed Jury ...


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