United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Maria Ysabel Armijo
Randy M. Castellano Matthew Beck Assistant United States
Attorneys United States Attorney's Office Las Cruces, New
Mexico Attorneys for the Plaintiff
Richard Sindel Sindel, Sindel & Noble, P.C. Clayton,
Missouri and Brock Benjamin Benjamin Law Firm El Paso, Texas
Attorneys for Defendant Joe Lawrence Gallegos
Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado and
Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso,
Texas Attorneys for Defendant Edward Troup
Dean Clark Las Cruces, New Mexico Attorney for Defendant
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
L. Granberg Granberg Law Office El Paso, Texas and- Orlando
Mondragon El Paso, Texas Attorneys for Defendant Christopher
D. Chambers Nathan D. Chambers, LLC Denver Colorado and Noel
Orquiz Deming, New Mexico Attorneys for Defendant Javier
Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn
Albuquerque, New Mexico Attorneys for Defendant Arturo
Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico
and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys
for Defendant Benjamin Clark
Pineda Las Cruces, New Mexico Attorney for Defendant Ruben
Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for
Defendant Jerry Armenta
A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret
Strickland McGraw & Strickland Las Cruces, New Mexico
Attorneys for Defendant Jerry Montoya
M. Potolsky Jacksonville Beach, Florida and Santiago D.
Hernandez Law Office of Santiago D. Hernandez El Paso, Texas
Attorneys for Defendant Mario Rodriguez
Jacqueline K. Walsh Walsh & Larranaga Seattle, Washington
and Ray Velarde El Paso, Texas Attorneys for Defendant
Spencer El Paso, Texas and Mary Stillinger El Paso, Texas
Attorneys for Defendant Mauricio Varela
Jacks Law Office of Amy E. Jacks Los Angeles, California and
Richard Jewkes El Paso, Texas Attorneys for Defendant Daniel
A. Harrison Las Cruces, New Mexico Attorney for Defendant
Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant
Theresa M. Duncan Duncan, Earnest, LLC Albuquerque, New
Mexico and Marc M. Lowry Rothstein Donatelli, LLP
Albuquerque, New Mexico Attorneys for Defendant Anthony Ray
Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces,
New Mexico Attorney for Defendant Robert Martinez
J. Milner Las Cruces, New Mexico Attorney for Defendant Roy
Christopher W. Adams Charleston, South Carolina and Amy
Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New
Mexico Attorneys for Defendant Christopher Garcia
William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law
Office of Carey C. Bhalla, LLC Albuquerque, New Mexico
Attorneys for Defendant Carlos Herrera
Justine Fox-Young Albuquerque, New Mexico and Ryan J. Villa
Albuquerque, New Mexico Attorneys for Defendant Rudy Perez
Torraco Albuquerque, New Mexico and Donavon A. Roberts
Albuquerque, New Mexico Attorneys for Defendant Andrew
Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC
Albuquerque, New Mexico Attorneys for Defendant Santos
Arellanes Albuquerque, New Mexico Attorneys for Defendant
A. Walz Walz and Associates Albuquerque, New Mexico Attorneys
for Defendant Brandy Rodriguez
MEMORANDUM OPINION AND ORDER 
MATTER comes before the Court on the Defendant
Christopher Garcia's Sealed Motion to Suppress Statements
by Defendant Obtained in Violation of Miranda v.
Arizona; Motion to Suppress Involuntary Statements by
Defendant; Request for Hearing Pursuant to 18 U.S.C. §
3501, filed March 1, 2017 (Doc. 184)(“Motion to
Suppress”). The Court held evidentiary hearings on
April 13, 2017, and May 4, 2017. The primary issue are: (i)
whether the Court should suppress statements that Defendant
Chris Garcia made during an interrogation with Nathan Lerner
-- a sergeant with the Bernalillo County Sherriff's
Department -- and FBI Special Agent Joe Sainato, because
Garcia invoked his right to counsel before the interrogation
by telling Lerner “My attorney is Robert
Gorence”; and (ii) whether the Court must exclude all
of Garcia's statements from the interrogation under
Miranda v. Arizona, 384 U.S. 436, 444
(1966)(“Miranda”) and Missouri v.
Seibert, 542 U.S. 600
(2004)(“Seibert”), because Sainato did
not give Garcia a Miranda warning until sixteen
minutes into the interrogation. The Court concludes that
Garcia did not invoke his right to counsel before the
interview, because Garcia was not yet subject to custodial
interrogation, as required to trigger Miranda
protections. The Court will, accordingly, not suppress
Garcia's statements on those grounds. The Court will also
not suppress the testimony obtained after the late
Miranda warning, because Sainato did not
deliberately issue the warning late. Rather, the evidence
suggests it was a good-faith mistake. The Court will
suppress, however, the statements Garcia made before the
Miranda warning, because, once questioning began,
Garcia had been subjected to custodial interrogation. The
Court, accordingly, grants in part and denies in part the
requests in the Motion to Suppress.
Court takes its background facts from the Second Superseding
Indictment, No. 15-4268, 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, No. 15-4268,
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.
case deals with crimes that the Syndicato de Nuevo Mexico
(“SNM”) allegedly committed through its members.
See Indictment at 2. SNM, through its members,
operated in the District of New Mexico at all relevant times,
and its members engaged in acts of violence and other
criminal activities, “including murder, kidnapping,
attempted murder, conspiracy to manufacture/distribute
narcotics, and firearms trafficking.” Indictment at 2.
SNM constitutes an enterprise “as defined in Title 18,
United States Code, Section 1959(b)(2), that is, a group of
individuals associated in fact that engaged in, and the
activities of which affected, interstate and foreign
commerce.” Indictment at 2-3.
a violent prison gang formed in the early 1980s at the
Penitentiary of New Mexico (“PNM”) after a
violent prison riot at PNM during which inmates seriously
assaulted and raped twelve correctional officers after taking
them hostage. See 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 at one time.
See Indictment at 3. SNM has approximately 250
members now and is led by “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;
its main goal is controlling and profiting 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 may 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 preserve its power, SNM uses intimidation, 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, including Wayne
Santistevan and Gregg Marcantel, 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); Transcript of Motion Proceedings at 228:23-24
(held November 29, 2017)(Castellano), No. 15-4268, filed
December 6, 2017 (Doc. 1547). The other relevant facts giving
rise to this Memorandum Opinion and Order are as follows.
12(d) of the Federal Rules of Criminal Procedure states:
“When factual issues are involved in deciding a motion,
the court must state its essential findings on the
record.” Fed. R. Crim. P. 12(d). The Court makes these
findings under rule 104(a) of the Federal Rules of Evidence,
which requires a judge to decide preliminary questions
relating to the admissibility of evidence, including the
legality of a search or seizure, and the voluntariness of an
individual's confession or consent to search. See
United States v. Merritt, 695 F.2d 1263, 1269-70 (10th
Cir. 1982)(“[U]nder Rule 104(a) . . ., the district
court ‘is not bound by the Rules of Evidence except
those with respect to privilege.'”)(quoting
United States v. Matlock, 415 U.S. 164, 174 (1974)).
The Court makes the following finding of fact in accordance
with rule 12(d) of the Federal Rules of Criminal Procedure:
some point on December 2, 2015, Garcia, a forty-year-old man,
took some Xanax and Oxycodone. See Intake
Screen at 1 (dated December 4, 2017 19:55 p.m.), filed March
1, 2017 (Doc. 184-4)(“Intake Screening”)(noting
that Garcia had taken Xanax and Oxycodone two days before
intake screening); Patient RX History Report for Chris Garcia
at 2 (dated April 5, 2016), filed March 1, 2017 (Doc.
184-2)(“Patient History”)(noting that Garcia had
fulfilled a thirty-day Oxycodone prescription on December 2,
2015 and a thirty-day Alprazolam prescription on November 4,
2015). The amount he ingested of either drug is unknown.
about 4:15 a.m. on December 3, 2015, Garcia was arrested at
his home on drug dealing charges and placed in the back of a
police car. See Redacted Superseding Indictment at
1-2, filed March 16, 2016 (Doc. 49)(“Garcia
Indictment”); Transcript of Motion Proceedings at
138:20-21 (held April 13, 2017)(Lerner), filed May 3, 2017
(Doc. 254)(“April Tr.”); Transcript of Motion
Proceedings at May Tr. at 22:23-25 (held May 4, 2017)(Adams,
Sainato), filed May 12, 2017 (Doc. 264)(“May
While Garcia was secured in the car, Lerner -- a sergeant
with the Bernalillo County Sherriff's Department -- told
Garcia that he was under arrest and that they were taking
Garcia to talk to agents of the Federal Bureau of
Investigation. See April Tr. at 141:13-15 (Lerner);
id. at 158:2-4 (Lerner). Lerner did not make these
statements accusatorily or threateningly. See April
Tr. at 141:4-8 (Lerner)(“I opened the door, Hey,
it's me, so and so. We're going to talk to you,
we'll tell you all about what's going on in the car
when we get to the office.”).
Garcia said in response, “My attorney is Robert
Gorence.” April Tr. at 158:4-5 (Lerner). See
id. at 157:18 (Lerner).
Gorence is a prominent New Mexico defense lawyer.
See Robert J Gorence, Gorence & Oliveros, P.C.,
available at http://www.golaw.us/index.php/
about/52-robert-j-gorence. He is also a former Assistant
United States Attorney and former First Assistant and Chief
of the Criminal Division. See Robert J Gorence,
Gorence & Oliveros, P.C., available at
Lerner knew that Mr. Gorence was a New Mexico defense
attorney. See April Tr. at 163:22-24 (Lerner,
Lerner asked Garcia no questions in the car. See
141:9-10 (Lerner, Sirignano).
Lerner subsequently drove Garcia to a New Mexico probation
office facility for questioning. See April Tr. at
Garcia's interview with Lerner and FBI Special Agent Joe
Sainato began at 5:55 a.m. See Confidential
Transcript of Redacted Post-Arrest Interview of Christopher
Garcia at 3:1-6 (taken December 3, 2015)(Sainato), filed
March 1, 2017 (Doc. 184-5)(“Int. Tr.”).
Garcia was not handcuffed during the interview. See
May Tr. At 25:4-5 (Sainato).
Garcia was also given water and a doughnut during
questioning. See April Tr. at 175:8-10 (Lerner); May
Tr. at 118:19 (Sainato).
Neither Lerner nor Sainato gave Garcia his Miranda
warnings before the interview began. See Int. Tr. at
3:1 (Sainato); id. at 20:21-22 (Sainato).
Instead, Sainato and Lerner asked Garcia various questions
about SNM and Garcia's involvement with the gang. See
e.g., Int. Tr. at 5:4-6 (Lerner); id. at
5:15-17 (Lerner); 7:19 (Sainato).
Garcia responded to these questions in a thick, throaty
voice, but he answered quickly and responsively. See
Redacted Audio Interview at 0:01-15:37 (recorded December 3,
2015)(Garcia, Lerner, Sainato), Gov. Hearing Ex. 2,
Garcia was talkative during the interview, and his answers
were often narrative. See, e.g., Int. Tr.
at 19:11-20 (Garcia); id. at 23:14-25 (Garcia);
id. at 91:15-92:6 (Garcia); id. at
Garcia told them he had joined SNM in 1999. See Int.
Tr. at 5:18 (Garcia).
SNM members had vouched for his entry into the gang:
“Anthony Apodaca -- and Dennis Trujillo.” Int.
Tr. at 7:18 (Garcia); id. at 8:24-25 (Garcia,
Garcia implied that SNM had admitted him for stabbing a man.
See Int. Tr. at 9:1-25 (Garcia, Lerner,
Garcia also told them that he did not know who had ordered
the murder of Gregg Marcantel, the New Mexico Secretary of
Corrections. See Int. Tr. at 3:22 (Garcia).
Garcia was discussing SNM members' leadership positions,
including a member nicknamed Styx, Sainato realized he had
not given Garcia Miranda warnings. See Int.
Tr. at 20-21 (Sainato).
following exchange then took place:
Special Agent Sainato [I forgot] to do this.
[Sergeant Lerner: Really?
[Special Agent Sainato]: You haven't told us anything
bad, right? We need to -- my bad, dude. I started filling
this out, and then I totally got sidetracked because you told
me something exciting and I like listening to you, but
let's do this real quick
Mr. Garcia: and -- and I still don't
understand. Like what --
Sergeant Lerner: We're getting -- he's got --
Special Agent Sainato: Yeah, my bad, dude. I meant to do this
before we got started. So the time is 6:11. Chris, before we
really talk to you, you must understand your rights. You have
the right to remain silent. Anything you say can be used
against you in court. You have the right to talk to a lawyer
for advice before we ask you any questions. You have a right
to have a lawyer with you during questioning. If you
can't afford a lawyer, one can be appointed for you
before questioning if you wish. If you decide to answer any
questions now, without a lawyer present, you have the right
to stop answering at any time. So if you can just read out
loud the consent part.
Mr. Garcia: Okay. I -- okay. I have read this statement of my
rights. I understand what my rights are. At this time I am
willing to answer questions without a lawyer present.
Special Agent Sainato: Is that cool?
Mr. Garcia: Okay. Yeah.
Special Agent Sainato: Yeah. Sorry. I meant to do that before
Sergeant Lerner: So now we're going to have to go over
Special Agent Sainato: No.
Sergeant Lerner: We can put it in -- Mr. Garcia: Because I
can even say on the recording that I understand what happened
and everything is fine. I'm not against it. You know what
Int. Tr. at 20:9-21:23 (Garcia, Lerner, Sainato).
Garcia then signed an FBI “Advice of Rights” form
indicating that he understood his Miranda rights and
was “willing to answer questions without a lawyer
present.” Federal Bureau of Investigation Advice of
Rights at 1 (dated December 3, 2015, 6:12 a.m.), filed March
29, 2017 (Doc. 226-1)(“Advice of Rights”).
trio then resumed discussing Styx. See Int. Tr. at
Garcia's questioning continued for approximately two
hours and forty five more minutes. See Int. Tr. at
that time, they discussed: (i) current SNM leaders and
members, see Int. Tr. at 44:8-46:4 (Garcia, Lerner,
Sainato); id. at 52:2-14 (Garcia, Lerner, Sainato);
(ii) why and whether SNM ordered various murders,
see Int. Tr. at 25:1-3 (Sainato); id at
43:20-44:16 (Garcia, Lerner); id. at 61:1-22
(Garcia, Lerner); id. at 63:19-64:12 (Garcia,
Lerner); id. at 66:10-68:13 (Garcia, Lerner);
id. at 137:23-140:2 (Garcia, Lerner, Sainato); (iii)
whether SNM would ever order a murder on federal agents or a
judge, see Int. Tr. at 34:15-18 (Lerner); (iv) a
discussion Garcia had with “Pup” -- Anthony Ray
Baca, an SNM leader -- about loyalty to SNM, Baca's
orders to Garcia about killing Santistevan and Marcantel, and
Garcia's subsequent actions to obtain a gun, see
Int. Tr. at 83:7-113:16 (Garcia, Lerner, Sainato);
id. at 140:18-145:21 (Garcia, Lerner, Sainato);
id. at 149:18-25 (Garcia, Lerner); id. at
166:5-167:1 (Garcia, Myers);(v) the murder of
Charisma Flores, see Int. Tr. at 137:23-140:2
(Garcia, Sainato); (vi) the murder of George Jaramillo,
see Int. Tr. at 147:9-17 (Garcia, Lerner); and (vii)
Shane Dix's murder, see Int. Tr. at
174:16-177:20 (Acee, Garcia, Lerner, Myers, Sainato);
id. at 179:1-181:9 (Garcia, Lerner, Myers, Sainato).
Acee, Lerner, Myers, and Sainato did not use or threaten to
use physical force against Garcia during the interview.
See generally Int. Tr. at 3:1-214:8.
Lerner and Sainato spent the majority of the interview
attempting to establish Garcia's connection to and
possession of a gun, which SNM planned Mario Montoya to use
in the murder or murders of senior New Mexico Department of
Corrections staff. See Int. Tr. at 88:1-125:11
(Garcia, Lerner, Sainato); id. at 127:1-131:7
(Garcia, Lerner, Sainato); id. at 140:5-158:23
(Garcia, Lerner, Sainato); id. at 166:1-174:9 (Acee,
Garcia, Lerner, Myers, Sainato); id. at 182:1-17
(Garcia, Lerner); id. at 186:10-16 (Garcia, Lerner,
Sainato); id. 194:1-198:2 (Garcia, Lerner, Sainato);
Federal Bureau of Investigation at 2, (written December 10,
2015), filed March 1, 2017 (Doc. 184-1)(“FBI
Lerner and Sainato asked all of their questions about the gun
after Garcia's Miranda warning. See