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United States v. Baca

United States District Court, D. New Mexico

November 14, 2018

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. “Antone, ” and ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” Defendants.

          Fred 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 the Plaintiff.

          Theresa M. Duncan Duncan Earnest, LLC Marc M. Lowry Rothstein Donatelli, LLP Albuquerque, New Mexico Attorneys for Defendant.

          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 Garcia

          Todd Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC Attorney for Defendant Manuel Jacob Armijo

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

          Donald F. Kochersberger, III Business Law Southwest, LLC Albuquerque, New Mexico Attorney for Defendant Sergio Loya Rodriguez

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

          Diego R. Esquibel The Barnett Law Firm R. Scott Reisch Reisch Law Firm, LLC Denver, Colorado Attorneys for Defendant Vincent Garduno

          Marc Grano Grano Law Offices Attorney for Defendant Mandel Lon Parker.

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

          Lauren 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

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

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


         THIS 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.


         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 the Plaintiff United States of America's version of events and that the Defendants who have not pled guilty are all presumed innocent.

         This 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.

         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. 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. 2016)(Browning, J.).

         1. The Shane Dix Murder.

         In 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).

         2. Montoya's FBI Interview.

         Rule 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[1] 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.'”)[2]; 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 hearings”).

         1. 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).

         2. Sometime before September 11, 2015, Montoya purchased heroin from an FBI confidential informant. See Tr. at 8:25-9:1 (Acee).

         3. Acee arrested Montoya on September 11, 2015. See Tr. at 8:14-21 (Armijo, Acee).

         4. 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).

         5. Montoya faced charges for distributing heroin and being a felon in possession of a firearm. See Tr. at 9:5-9 (Armijo, Acee).

         6. On 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 Report”).

         7. At the October 6, 2015, interview, a public defender represented Montoya, and Montoya had Kastigar protection.[3] 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.).

         8. “Kastigar letters” or “Kastigar agreements” are “offers only of conditional, or limited, immunity.”[4] United States v. Darwich, No. 10-20705, 2011 WL 1336671, at *2 (E.D. Mich. Apr. 7, 2011)(Cleland, J.).

         9. 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).

         10. 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.

         11. Garcia hired Montoya and someone named “Antone” to kill Dix. Tr. at 12:15-13:4 (Acee).

         12. 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 (Armijo, Acee).

         13. 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.

         14. 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.

         15. 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.

         16. 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).

         17. Acee thought “heroin user” meant “a little bit on the thin side.” Tr. at 28:19-20 (Acee).

         18. 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).

         19. Acee received about fifteen photographs, but ruled out roughly six photos, because they were black men who did not match Montoya's ...

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