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United States v. Deleon

United States District Court, D. New Mexico

August 31, 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.

          James 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

          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 Armenta

          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 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”).[2] 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.


         The 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.

         This case deals with crimes that the Syndicato[3] 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.

         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. 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.


         Rule 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:

         1. At some point on December 2, 2015, Garcia, a forty-year-old man, took some Xanax and Oxycodone.[4] 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.

         2. At 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 Tr.”).

         3. 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.”).

         4. Garcia said in response, “My attorney is Robert Gorence.” April Tr. at 158:4-5 (Lerner). See id. at 157:18 (Lerner).[5]

         5. Mr. Gorence is a prominent New Mexico defense lawyer. See Robert J Gorence, Gorence & Oliveros, P.C., available at 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, Sirignano)

         6. Lerner asked Garcia no questions in the car. See 141:9-10 (Lerner, Sirignano).

         7. Lerner subsequently drove Garcia to a New Mexico probation office facility for questioning. See April Tr. at 133:20-21 (Lerner).

         8. 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.”).

         9. Garcia was not handcuffed during the interview. See May Tr. At 25:4-5 (Sainato).[6]

         10. Garcia was also given water and a doughnut during questioning. See April Tr. at 175:8-10 (Lerner); May Tr. at 118:19 (Sainato).

         11. 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).

         12. 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).

         13. 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, (“Interview Recording”).

         14. 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 92:8-93:1 (Garcia).

         15. Garcia told them he had joined SNM in 1999. See Int. Tr. at 5:18 (Garcia).

         16. Two 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, Lerner).

         17. Garcia implied that SNM had admitted him for stabbing a man. See Int. Tr. at 9:1-25 (Garcia, Lerner, Sainato).[7]

         18. 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).

         19. As 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).

         20. The following exchange then took place:

Special Agent Sainato[8] [I forgot][9] to do this.
[Sergeant Lerner[10]: 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.[11] 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 we started.
Sergeant Lerner: So now we're going to have to go over everything again?
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 I mean?

Int. Tr. at 20:9-21:23 (Garcia, Lerner, Sainato).

         21. 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”).

         22. The trio then resumed discussing Styx. See Int. Tr. at 22:2 (Lerner).

         23. Garcia's questioning continued for approximately two hours and forty five more minutes. See Int. Tr. at 213:9-10 (Sainato).

         24. In 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);[12](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, [13]see Int. Tr. at 174:16-177:20 (Acee, Garcia, Lerner, Myers, Sainato); id. at 179:1-181:9 (Garcia, Lerner, Myers, Sainato).

         25. 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.

         26. 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 report”).

         27. Lerner and Sainato asked all of their questions about the gun after Garcia's Miranda warning. See ...

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