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United States v. Baca

United States District Court, D. New Mexico

July 19, 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 GARDUNO 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. "Antone," and ARTURO ARNULFO GARCIA, a.k.a. "Shotgun," Defendants.

          Fred Federici Attorney for the United States Acting Under Authority Conferred Albuquerque, New Mexico and 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

          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

          Christopher W. Adams Charleston, South Carolina and Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia

          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 Burges & 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 Ahmad Assed Ahmad Assed & Associates Albuquerque, New Mexico Attorneys for Daniel Archuleta

          James Baiamonte Albuquerque, New Mexico and Ahmad Assed Ahmad Assed & Associates Albuquerque, New Mexico Attorneys for Daniel Archuleta

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

          Scott Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia

          MEMORANDUM OPINION

         THIS MATTER comes before the Court on Defendant Anthony Cordova's Motion for Intra-District Transfer of Proceedings, filed May 14, 2018 (Doc. 6l9)("Motion"). The Court held a hearing on June 14, 2018. The primary issue is whether the Court should alter its plan to hold Defendant Anthony Cordova's trial at the federal courthouse in Las Cruces, New Mexico and, instead, hold Cordova's trial at the Pete V. Domenici Federal Courthouse in Albuquerque, New Mexico. Cordova is charged with "offenses punishable with death" that allegedly took place in Bernalillo County, so 18 U.S.C. § 3235 requires the Court to hold Cordova's trial in Bernalillo County if "that can be done without great inconvenience." 18 U.S.C. § 3235. Because the Court can hold a single-defendant trial in the Pete V. Domenici Federal Courthouse, which is within Bernalillo County, without great inconvenience, the Court grants Cordova's motion.

         FACTUAL BACKGROUND

         The 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 for their truth. The Court recognizes that the factual background is largely Plaintiff United States of America's version of events and that the Defendants are all presumed innocent.

         This case deals with the crimes that the Syndicato de Nuevo Mexico ("SNM") allegedly committed through its members. 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.

         The SNM 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. 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. 2Ol6)(Browning, J.).

         PROCEDURAL BACKGROUND

         The FBI's SNM investigation resulted in this case as well as three other cases that are presently before the Court. See United States v. DeLeon, No. CR 15-4268; United States v. Varela, No. CR 15-4269; United States v. Garcia. No. CR 15-4275. United States v. Varela and United States v. Garcia did not go to trial, but the Court held two trials in United States v. DeLeon, one four-defendant trial and one seven-defendant trial. The two United States v. DeLeon juries found eight of those eleven defendants guilty of violating the Violent Crimes in Aid of Racketeering Act, 18 U.S.C. § 1959 ("VICAR"). See United States v. DeLeon, No. CR 15-4268, Jury Verdict at 1-3, filed March 12, 2018 (Doc. 1947); United States v. DeLeon, No. CR 15-4268, Jury Verdict at 1-5, filed May 25, 2018 (Doc. 2332). Five United States v. DeLeon defendants are also charged in this case. Compare Indictment at 1, with United States v. DeLeon, No. CR 15-4268, Second Superseding Indictment at 1, filed March 9, 2017 (Doc. 947)("DeLeon Indictment").

         Unlike United States v. DeLeon, only one Defendant, Cordova, is going to trial in this case. The Court dismissed the charges against some Defendants. See Stipulated Order of Dismissal at Order at 1, filed June 14, 2018 (Doc. 727)(dismissing the charges against Defendant Anthony Ray Baca, Defendant Daniel Sanchez, and Defendant Arturo Arnulfo Garcia without prejudice); Order Dismissing Richard Gallegos Without Prejudice, filed January 30, 2017 (Doc. 3l7)(granting the United States' Motion to Dismiss Richard Gallegos Without Prejudice, filed November 22, 2016 (Doc. 260)). Other Defendants made plea agreements with the United States. See Plea Agreement, filed June 14, 2018 (Doc. 726)(Sergio Loya Rodriguez); Plea Agreement, filed June 13, 2018 (Doc. 72O)(Manuel Benito); Plea Agreement, filed June 7, 2018 (Doc. 7OO)(Mandel Lon Parker); Plea Agreement, filed June 7, 2018 (Doc. 698)(Daniel Archuleta); Plea Agreement, filed January 25, 2018 (Doc. 5O3)(Christopher Garcia); Plea Agreement, filed March 1, 2017 (Doc. 368)(Manuel Jacob Armijo); Plea Agreement, filed September 22, 2016 (Doc. 229)(Frederico Munoz). The Indictment alleges that Cordova violated VICAR by murdering Shane Dix and with violating 18 U.S.C. § 924(c), (j)(1) during that murder. See Indictment at 53-54. According to the Indictment, those offenses took place in Bernalillo County, New Mexico. See Indictment at 53.

         1. First, Bifurcated United States v. DeLeon Trial.

         On January 29, 2018, the Court began the first of two bifurcated trials in United States v. DeLeon. That trial involved four defendants, Baca, Sanchez, Rudy Perez, and Carlos Herrera. Six weeks later, on March 5, 2018, the parties gave their closing statements and the jury began its deliberations. While the jury was deliberating, the Court set aside the next week, March 12-16, 2018 for pretrial hearings regarding the second bifurcated United States v. DeLeon trial.

         2. Second Bifurcated United States v. Deleon Trial's Pretrial Conference.

         On March 12, 2018, while the jury from the first United States v. DeLeon trial continued its deliberations - the Court held the pretrial conference for the second United States v. DeLeon trial. See United States v. Deleon, Transcript of Hearing at 6:8-16 (Court)(taken March 12, 2018), filed April 3, 2018 (Doc. 2O26)("Mar. 12 Tr."). At that time, the Court believed that the second trial would involve eight defendants, but one trial-two defendant, Shauna Gutierrez, entered into a plea agreement with the United States a week before trial began. See United States v. Deleon, Plea Agreement at 1, filed March 29, 2018 (Doc. 2003). During the pretrial conference - which the Court held in the same courtroom as the first trial - the Court orally indicated that it might move the second trial from Las Cruces to Albuquerque to better accommodate the increased number of defendants:

I'm still a little undecided as to where we're going to have this trial. Of course on the [juror] questionnaire we have indicated it's here. And I think presumption-wise, the case was indicted down here, I did the first trial down here. We are looking at some rather large numbers. And so I'm trying to make it work. There was some discussion of putting it into the Sierra Blanca [court]room. And I'm not as familiar with the courthouse here as some of y'all may be, but I think that's the room right next door. It's a little larger, but it's only six feet larger. So it doesn't give me a lot more room. It doesn't give me the room that I have up in say, the Rio Grande [courtroom in the Albuquerque courthouse]. I think we've all been in the Rio Grande up in Albuquerque.
I can't probably do the nice tables. I hope the [trial 1] defendants would agree that this was a nice layout for them during the trial. We worked very hard to make it one that worked as far as optics from the jury standpoint, from the voir dire standpoint, and also for the comfort of the defendants and their counsel and the paralegals. I probably can't do that with these sort of numbers that we're looking at. So I'm still undecided about location.
Ms. Jacks[, Sanchez' learned counsel from Los Angeles, California, ] has sort of educated us a little bit on her experience around the country. And we may pick up one of her tips as far as building two tables. And so, what I understand Ms. Wild is thinking about doing is putting a table - just one long table here for the counsel, and then behind that a table for the defendants, and so you'll turn around. But I don't have anything better, and Ms. Jacks says it seems to work. So that's kind of what I'm looking at doing. And that's probably going to be whether it's in this room or Rio Grande or Sierra Blanca. I don't see any other way to do any sort of seating. So probably that means paralegals and other people that may sit with you may not be able to sit with you. We can probably figure out places that they can go. But right at the moment, the courtroom is still open, the location is still open, and the seating arrangement is probably going to move toward two long tables that I will have to build for this trial.
So I don't have a lot more to say on that. I will still be working with Ms. Wild, and I'll keep you posted. But I'm concerned about the numbers that we're looking at, that Las Cruces may just not be able to accommodate a trial - I guess there is eight of you for the second trial. So we'll just have to keep an eye on that.

Mar. 12 Tr. at 8:4-10:4 (Court).

         3. The Mickendrow Letter.

         That afternoon, in response to the Court's indication that it might hold the second United States v. DeLeon trial in Albuquerque, Deputy United States Marshal Christopher Mickendrow wrote a letter to the Court's Courtroom Deputy; that letter was subsequently filed on the Court's United States v. DeLeon docket. See United States v. DeLeon, Letter from Christopher Mickendrow to Carol Bevel at 1 (dated March 12, 2018), filed March 14, 2018 (Doc. l938)("Mickendrow Letter"). In his letter, Mickendrow argues that the Court should not hold the second United States v. DeLeon trial in Albuquerque for logistical reasons:

• Cell block space: In short, the Cellblock's up in ABQ cannot accommodate a trial of this size given the number of in-custody defendants AND in-custody witnesses.
Specifics:
• USMS Las Cruces has 25 Cellblock locations and of those we have 15 locations that inmates can be separated sight and sound which is an important consideration when considering in-custody witnesses and the in-custody defendants.
• USMS ABQ has 24 cells but only 5 places to separate sight and sound locations. 5 spaces does not reasonably address separatee issues which is something we would need to address.
• The AUSA office has already informed me that they anticipate 32 in-custody witnesses (ex-parte info). I spoke with defense and they were unable to provide me with a number at this point but did anticipate a number of in-custody witnesses. This does not even address housing of these inmates (my next point).
• Prisoner Housing: In short, ABQ cannot reasonable [sic] accommodate housing all of the in-custody defendants AND in-custody witnesses and maintain the level of safety required of our mandate.
Specifics:
• USMS Las Cruces has 6 possible locations to utilize for housing of defendants and in-custody witnesses. This allows us to address separatee issues of the ...

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