United States District Court, D. New Mexico
Federici Attorney for the United States Acting Under
Authority Conferred by 28 USC § 515 Maria Ysabel Armijo
Randy M. Castellano Matthew Beck Assistant United States
Attorneys United States Attorney's Office, Attorneys for
Theresa M. Duncan Duncan Earnest, LLC Marc M. Lowry Rothstein
Donatelli, LLP Albuquerque, New Mexico Attorneys for
Anthony Ray Baca Christopher W. Adams Charleston, South
Carolina, Amy Sirignano Law Office of Amy Sirignano, P.C.
Albuquerque, New Mexico Attorneys for Defendant. Christopher
Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC
Attorney for Defendant Manuel Jacob Armijo
E. Lopez, Jr. El Paso, Texas Attorney for Defendant Frederico
F. Kochersberger, III Business Law Southwest, LLC
Albuquerque, New Mexico Attorney for Defendant Sergio Loya
Burgess-Farrell Barry G. Porter Burgess & Porter Law, LLC
Attorneys for Defendant Manuel Benito.
R. Esquibel The Barnett Law Firm R. Scott Reisch Reisch Law
Firm, LLC Denver, Colorado Attorneys for Defendant Vincent
Grano Grano Law Offices Attorney for Defendant Mandel Lon
Baiamonte Albuquerque, New Mexico Ahmad Assed Ahmad Assed
& Associates Albuquerque, New Mexico Attorneys for
Defendant Daniel Archuleta
Noriega The Noriega Law Firm Los Angeles, California Amy E.
Jacks Law Office of Amy E. Jacks Los Angeles, California
Attorneys for Defendant Daniel Sanchez
A. Morrissey Santa Monica, California Gregory M. Acton
Albuquerque, New Mexico Attorneys for Defendant Anthony
Moran Davidson Laura E. Udall Cooper & Udall, PC Tucson,
Arizona Billy R. Blackburn Albuquerque, New Mexico Attorneys
for Defendant Arturo Arnulfo Garcia.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Anthony
Cordova's Motion to Suppress Out-Of-Court and In-Court
Identifications and Request for Evidentiary Hearing, filed
April 7, 2018 (Doc. 563)(“Motion”). The Court
held an evidentiary hearing on June 15, 2018. The primary
issues are (i) whether the Federal Bureau of
Investigation's (“FBI”) process for witness
Mario Montoya's out-of-court identification of Defendant
Anthony Cordova was so impermissibly suggestive that
admitting it into evidence will violate Cordova's right
to due process; and (ii) whether the Court should exclude
evidence of Montoya's identification from trial under
rule 403 of the Federal Rules of Evidence. The Court
concludes that: (i) admitting into evidence at trial
Montoya's identifications of Cordova will not violate
Cordova's right to due process, because the
identification process was not impermissibly suggestive or
unnecessary; and (ii) the Court will not exclude
Montoya's identification evidence from trial under rule
403, because the evidence's probative value is
substantial and the risk of misleading the jury is low.
Accordingly, the Court grants the Motion in part and denies
in part. The Court grants the Motion insofar as it requests
an evidentiary hearing and denies the Motion insofar as it
requests the Court to suppress evidence of Montoya's
identifications of Cordova.
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 the
Plaintiff United States of America's version of events
and that the Defendants who have not pled guilty are all
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. 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.
The Shane Dix Murder.
February, 2005, a 28-year-old man named Shane Dix was shot to
death in his vehicle late at night in Albuquerque, New
Mexico's south valley area. See Man's Death
Investigated as Homicide, Albuquerque Journal (February 7,
2005), available at
The Bernalillo County Sheriff Office investigated the murder,
see Man's Death Investigated as Homicide,
supra, but did not solve the case, see Tr.
at 11:16-19 (Armijo, Acee)(stating that, in 2015, the FBI was
interested in solving the Dix murder). After the FBI began
investigating the SNM in 2015, FBI Special Agent Bryan Acee
suspected that the SNM may have been involved in the Dix
murder. See Tr. at 11:22-24 (Acee).
Montoya's FBI Interview.
12(d) of the Federal Rules of Criminal Procedure requires the
Court to state its essential findings on the record when
deciding a motion that involves factual issues. See
Fed. R. Crim. P. 12(d)(“When factual issues are
involved in deciding a motion, the court must state its
essential findings on the record.”). The findings of
fact in this Memorandum Opinion and Order serve as the
Court's essential findings for rule 12(d) purposes. The
Court makes these findings under the authority of 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 a search. See United States v. Merritt,
695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such
preliminary questions, the other rules of evidence, except
those with respect to privileges, do not bind the Court.
See Fed.R.Evid. 104(a). Thus, the Court may consider
hearsay in ruling on a motion to suppress. See United
States v. Merritt, 695 F.2d at 1269 (“The purpose
of the suppression hearing was, of course, to determine
preliminarily the admissibility of certain evidence allegedly
obtained in violation of defendant's rights under the
Fourth and Fifth Amendments. In this type of hearing the
judge had latitude to receive it, notwithstanding the hearsay
rule.”); United States v. Garcia, 324
Fed.Appx. 705, 708 (10th Cir. 2009)(unpublished)(“We
need not resolve whether Crawford [v. Washington,
541 U.S. 36 (2004)]'s protection of an accused's Sixth
Amendment confrontation right applies to suppression
hearings, because even if we were to assume this protection
does apply, we would conclude that the district court's
error cannot be adjudged ‘plain.'”); United
States v. Ramirez, 388 Fed.Appx. 807');">388 Fed.Appx. 807, 810 (10th Cir.
2010)(unpublished)(“It is beyond reasonable debate that
Ramirez' counsel were not ineffective in failing to make
a Confrontation Clause challenge to the use of the
confidential informant. The Supreme Court has not yet
indicated whether the Confrontation Clause applies to hearsay
statements made in suppression hearings.”). Cf.
United States v. Hernandez, 778 F.Supp.2d 1211, 1226
(D.N.M. 2011)(Browning, J.)(concluding “that
Crawford v. Washington does not apply to detention
Sometime before September 11, 2015, the FBI targeted Montoya
as part of its investigation into the SNM for drug and
firearm charges. See Tr. at 9:2-4 (Armjio, Acee);
id. at 10:20-25 (Armijo, Acee).
Sometime before September 11, 2015, Montoya purchased heroin
from an FBI confidential informant. See Tr. at
arrested Montoya on September 11, 2015. See Tr. at
8:14-21 (Armijo, Acee).
Shortly after Acee arrested Montoya, Montoya indicated to
Acee that he had information to share with the FBI, but that
he would need an attorney before proceeding. See Tr.
at 10:11-19 (Armijo, Acee).
Montoya faced charges for distributing heroin and being a
felon in possession of a firearm. See Tr. at 9:5-9
October 6, 2015, the FBI interviewed Montoya (“Kastigar
Debrief”). See 302 Report at 1, filed May 14,
2018 (Doc. 625-1)(“First 302 Report”); 302 Report
at 1, filed April 7, 2018 (Doc. 563-2)(“Second 302
the October 6, 2015, interview, a public defender represented
Montoya, and Montoya had Kastigar
protection. See Tr. at 9:10-22 (Armjio,
Acee); First 302 Report at 1 (stating that Montoya signed a
Kastigar letter at 2:49 P.M.).
“Kastigar letters” or
“Kastigar agreements” are “offers
only of conditional, or limited, immunity.” United
States v. Darwich, No. 10-20705, 2011 WL 1336671, at *2
(E.D. Mich. Apr. 7, 2011)(Cleland, J.).
Before the Kastigar Debrief, Acee suspected that SNM
members Defendants Chris Garcia and Montoya were involved in
the 2005, murder of Dix. See Tr. at 11:22-24 (Acee).
Garcia and Dix got into an altercation in which Dix shot
Garcia in the leg, and Garcia wanted to pay to have Dix
killed. See First 302 Report at 2.
Garcia hired Montoya and someone named “Antone”
to kill Dix. Tr. at 12:15-13:4 (Acee).
Montoya knew Antone, because he had served prison time with
him and had seen Antone at Garcia's house, but he did not
know Antone's full name. See Tr. at 13:6-19
Montoya and Antone found Dix at a gas station in
Albuquerque's south valley where Dix was known to sell
drugs. See First 302 Report at 2.
Montoya and Antone made a deal with Dix to purchase drugs and
when Dix drove to retrieve drugs, Montoya and Antone followed
him in their car. See First 302 Report at 2.
Montoya and Antone caught up with Dix in his van as he was
pulling out of a driveway and, from the passenger seat,
Antone fired at Dix several times with a handgun.
See First 302 Report at 2.
Montoya gave Acee a description of Antone: “An older
Hispanic male adult from Albuquerque” who was a heroin
user and was of average height and weight. Tr. at 27:22-24
Acee thought “heroin user” meant “a little
bit on the thin side.” Tr. at 28:19-20 (Acee).
Acee contacted the Metropolitan Detention Center and the
Department of Corrections, and had them send Acee booking
photographs of anyone known by the name “Antone”
matching Montoya's description for Antone. Tr. at 14:8-19
Acee received about fifteen photographs, but ruled out
roughly six photos, because they were black men who did not
match Montoya's ...