United States District Court, D. New Mexico
Federici Attorney for the United States Acting Under
Authority Conferred by 28 USC § 515 Albuquerque, New
Mexico -and- John C. Anderson 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
Theresa M. Duncan Duncan Earnest 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
Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC
Albuquerque, New Mexico Attorney for Defendant Manuel Jacob
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
Albuquerque, New Mexico Attorneys for Defendant Manuel Benito
R. Esquibel The Barnett Law Firm Albuquerque, New Mexico
--and-- R. Scott Reisch Reisch Law Firm, LLC Denver, Colorado
Attorneys for Defendant Vincent Garduno
Grano Grano Law Offices Las Vegas, New Mexico Attorney for
Defendant Mandel Lon Parker
Baiamonte Albuquerque, New Mexico --and-- Ahmad Assed Ahmad
Assed & Associates Albuquerque, New Mexico Attorneys for
Defendant Daniel Archuleta
Noriega The Noriega Law Firm Los Angeles, California --and--
Amy E. Jacks Law Office of Amy E. Jacks Los Angeles,
California Attorneys for Defendant Daniel Sanchez
A. Morrissey Santa Monica, California --and-- Gregory M.
Acton Albuquerque, New Mexico Attorneys for Defendant Anthony
Cordova Kari T. Morrissey Law Office of Kari Morrissey
Albuquerque, New Mexico Marshall J. Ray Law Offices of
Marshall J. Ray LLC Albuquerque, New Mexico David R. Evans
David R. Evans Law Offices Los Angeles, California Attorneys
for Defendant Richard Gallegos
Moran Davidson Albuquerque, New Mexico --and-- Laura E. Udall
Cooper & Udall, PC Tucson, Arizona --and-- Billy R.
Blackburn Albuquerque, New Mexico Attorneys for Defendant
Arturo Arnulfo Garcia
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Anthony Cordova's Motion
to Compel the Government to Comply with Rule 16 in Noting Its
Intent to Rely on Gang Expert Witness Testimony, for a
Daubert Hearing to Determine the Admissibility of
Gang Expert Witnesses, Or, in the Alternative, to Exclude
Testimony of Gang Expert Witnesses, filed April 5, 2018 (Doc.
561)(“Motion”). The Court held a hearing on June
14, 2018. The primary issues are: (i) whether the Court
should order Plaintiff United States of America to give
notice of its proposed expert witnesses on gangs (“Gang
Experts”) -- Chris Cupit and Sergio Sapien “of
the New Mexico Corrections Department Security Threat
Intelligence Unit” (“STIU”), Motion at 1;
(ii) whether the Court should hold a hearing pursuant to
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993)(“Daubert”), to determine
the admissibility of the Gang Experts' testimony; and
(iii) whether the Court should limit the Gang Experts'
testimony. Because the parties agreed to limitations on the
Gang Experts' testimony at the June 14, 2018, hearing,
the Court will not order the United States to provide further
notice about notice its Gang Experts, and the Court will not
hold a Daubert hearing. In accord with the
parties' agreement, the Court will admit the Gang
Experts' testimony to the extent that the Gang Experts
describe gangs generally but will preclude testimony about
SNM specifically. Accordingly, the Court grants the Motion in
part and denies it in part.
Court recounted the factual background and early procedural
history in its Memorandum Opinion and Order at 2-4, 2018 WL
5980443, at *1-2, filed November 14, 2018 (Doc.
932)(“MOO”). The Court incorporates that
recitation here. The Court includes footnotes from the MOO
with the quotation.
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
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 [“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.).
MOO at 2-4; 2018 WL 5980443, at *1.
FBI's SNM investigation resulted in this case as well as
three other cases 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.
On March 9, 2018, a Grand Jury returned the
Indictment in this case. See Indictment
at 1. Count I charges eleven Defendants -- Anthony Ray Baca,
Chris Garcia, Manuel Jacob Armijo, Frederico Munoz, Sergio
Loya Rodriguez, Manuel Benito, Vincent Garduño, Mandel
Lon Parker, Daniel Archuleta, Daniel Sanchez, and Arturo
Arnulfo Garcia -- with engaging in a racketeering conspiracy
contrary to 18 U.S.C. § 1962(d) [(“RICO”)].
See Indictment at 8-9. Count 2 alleges that Chris
Garcia and [Defendant Anthony] Cordova committed murder on or
about February 4, 2005, in violation of the Violent Crimes in
Aid of Racketeering statute, 18 U.S.C. § 1959
(“VICAR”). See Indictment at 53. Court 3
charges Cordova with using and carrying a firearm in relation
to the crime charged in Count 2, in violation of 18 US.C.
§§ 924(c), (j)(1), respectively, using a firearm
during a violent crime and using a firearm to cause a
person's death. See Indictment at
MOO at 10; 2018 WL 5980443, at *5. The parties agreed to
start trial on July 9, 2018. See Unopposed Motion
for Third Scheduling Order and in Support of Unopposed Motion
to Continue at 2, filed June 9, 2017 (Doc. 435).
other cases resulting from the FBI investigation, 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. The Court held one
four-defendant trial and one seven-defendant trial. Across
the two trials, the juries found eight of the eleven
defendants guilty of violating the 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 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).
March 26, 2018, the United States filed its United
States' Notice of, and Motion in Limine to Admit, Gang
Expert Witnesses Testimony, filed March 26, 2018 (Doc.
545)(“Expert Notice”). Expert Notice at 6. The
United States notes that it will call the Gang Experts at
trial, and that their proposed testimony is included in the
Memorandum on Prison Gang Information from Sergio Sapien and
Chris Cupit (dated January 18, 2018), filed March 26, 2018
(Doc. 545-1)(“Gang Memo.”). See Expert
Notice at 1.
United States explains that the Corrections Department has
employed Sapien for around seventeen and a half years, and
that Sapien “has worked at the Southern New Mexico
Correctional Facility in Las Cruces, New Mexico, Central New
Mexico Correctional Facility in Los Lunas, New Mexico, and
the Penitentiary of New Mexico in Santa Fe, New
Mexico.” Expert Notice at 3. According to the United
States, Sapien has worked with “the STIU for over three
years as the STIU Captain/Institutional Investigator.”
Expert Notice at 3. In this position, Sapien identifies
gangs, identifies gang threats, and investigates gangs'
criminal activity. See Expert Notice at 3. Sapien,
the United States notes, has provided training on prison
gangs and “is a recognized expert in his field of
prison gangs.” Expert Notice at 3. The United States
concludes that Sapien's employment and knowledge qualify
him as an expert on an issue essential to the trial.
See Expert Notice at 3.
United States explains that Cupit worked for the Corrections
Department for eleven and a half years. See Expert
Notice at 2. The United States notes that, while working for
the Corrections Department, Cupit worked at “the
Penitentiary of New Mexico in Santa Fe, New Mexico.”
Expert Notice at 2. According to the United States, Cupit
also worked for the Federal Bureau of Prisons United States
Penitentiary, Atwater in Atwater, California for one and a
half years, and has “served with the STIU for
approximately six and a half years as an Institutional
Investigator.” Expert Notice at 2. The United States
lists Cupit's tasks as including identifying gangs,
identifying gang threats to “staff, inmates and the
public, ” and investigating gangs' criminal
activity. Expert Notice at 2. According to the United States,
Cupit has provided training on prison gangs and “is a
recognized expert in his field of prison gangs.” Expert
Notice at 2. The United States concludes that Cupit's
service demonstrate that he is qualified to serve as an
expert on information vital to the case. See Expert
Notice at 2-3.
United States argues that the Gang Experts'
“training, experience, and qualifications”
“demonstrates that the testimony of th[ese] witness[es]
is both relevant and reliable.” Expert Notice at 4. The
United States asks that the Court permit the Gang Experts to
testify. See Expert Notice at 4. The United States
asks that the Court treat the Expert Notice “as a
proffer on the training, background and education of the
witness” if the Defendants challenge the Gang
Experts' testimony. Expert Notice at 5. The United States
contends that, because “no novel scientific
principles” are “at play, ” the Court
should not require a hearing if the Gang Experts are
challenged, or, alternatively, that the Court should
“reserve ruling on the testimony's admissibility
until it is offered at trial.” Expert Notice at 5
(citing United States v. Nichols, 169 F.3d 1255,
1262-63 (10th Cir. 1999)).
Gang Memo., the Gang Experts explain that gangs pose problems
for correctional staff. See Gang Memo. at 1. The
Gang Experts state that “Gang ideologies exemplify
intimidation, secrecy, and strong arm tactics, ”
“exhibit the potential for disruptive, violent, and
destructive activity, and are recognized by most corrections
officials.” Gang Memo. at 1. The Gang Experts explain
that the Corrections Department developed a program to
identify, monitor, and control gangs and their threats.
See Gang Memo. at 1. According to the Gang Experts,
prison gangs seek to develop power, to be a support group, to
control drugs and, through the drugs, the prison, and to
develop “[s]treet [c]red” through violent acts.
Gang Memo. at 2. The Gang Experts divide the gangs within the
Corrections Department into the “Security Threat
Groups, ” which have military organizational
structures, and the Disruptive Groups, which are “more
democratic.” Gang Memo. at 2. The Gang Experts note
that the Security Threat Groups elect an individual known as
an “Ilavero” to lead the institution's gang,
and the Disruptive Groups use the term “Big
Homie” to refer to individual “veteran inmates,
” but are willing to consider various members'
opinions when making decisions. Gang Memo. at 2. The Gang
Experts enumerate rules that the gangs follow: never inform
on gang members; respect yourself and others; never back
down, lie, or steal; assault child molesters; “produce
your paperwork when asked;” and do not
“allow yourself to be disrespected.” Gang Memo.
at 2. According to the Gang Experts, the different gangs may
have and enforce their own rules, and the Gang Experts note
that violating the rules may lead to dissociation from the
gang, “, assault, group assault, ” or
“murder.” Gang Memo. at 2. The Gang Experts
explain that the gangs communicate through messages or
letters known as “kites or weelas, ” sign
language, and code. Gang Memo. at 2. Gang members, the Gang
Experts note, may communicate through members with access to
other facilities, recreation areas, and telephone calls to
people outside the institution. See Gang Memo. at
2-3. According to the Gang Experts, gang members' tattoos
identify their affiliations -- including their prison gang
and street gang affiliations and their beliefs. See
Gang Memo. at 3. Tattoos “usually include the name,
initials, or symbols of the gang, and in some instances,
could include the area to which the gang member
belongs.” Gang Memo. at 3.
Gang Experts explain that, for Security Threat Groups, a
potential gang member must have a sponsor with good standing
within the gang. See Gang Memo. at 9. According to
the Gang Experts, a potential gang member in a Security
Threat Group must not have informed on a gang previously or
have “bad charges.” Gang Memo. at 3. The Gang
Experts state that, to enter a Security Threat Group, a
member must “spill blood” and, to leave the gang,
a member must die. Gang Memo. at 3. The Gang Experts further
explain that entering such a gang requires a “vote from
3 or more actual members” and that remaining in the
gang requires participating in often violent and drug-related
activities. Gang Memo. at 3. The Disruptive Group, the Gang
Experts state, recruit gang members based on their geographic
origin and, according to the Gang Experts, the potential
members must have no “bad charges” and must not
have previously informed on a gang. Gang Memo. at 3. The Gang
Experts explain that such gangs often admit potential gang
members who meet these qualifications, and request that the
gang members commit activities for the gang, including
violent and drug-related activities. See Gang Memo.
at 3. According to the Gang Experts, Disruptive Group do not
require that potential gang members spill blood to enter or
that they remain gang members until they die. See
Gang Memo. at 3.
filed the Motion on April 5, 2018, in response to the Expert
Notice. See Motion at 1, 8. Sanchez, C. Garcia,
Garduño, Baca, Parker, Benito, Archuleta, and
Rodriguez joined the Motion. See Motion at 1. The
Defendants first aver:
The government's notice of its intent to call expert
witnesses as to gangs (Doc. 545) fails to comply with the
requirements of Rule 16 of the Federal Rules of Criminal
Procedure because it does not state the specific opinion(s)
to be offered by each witness, the bases and reasoning for
each such opinion, and the qualifications of the experts to
reliably form such opinions.
Motion at 2. According to the Defendants, they require such
information to challenge the opinions pretrial under rule 702
of the Federal Rules of Evidence, and, according to the
Defendants, the Court requires the information to analyze the
experts' testimony. See Motion at 2. The
Defendants indicate that the United States has provided no
information on the Gang Experts' testimony. See
Motion at 3. Second, the Defendants request a
Daubert hearing to ensure the relevance and
reliability of the Gang Experts' testimony, pursuant to
Daubert, 509 U.S. at 592-93 and Kumho Tire Co.
v. Carmichael 562 U.S. 137, 141 (1999). See
Motion at 3-4. Last, the Defendants ask the Court to limit
the Gang Experts' testimony they do not exceed their
expertise. Motion at 5. According to the Defendants, gang
expert testimony carries risks of “a law enforcement
officer substituting his expert opinion for facts derived
from a criminal investigation, ” Motion at 5, and of
“Confrontation Clause issues, ” Motion at 6. Gang Experts
may interview “known gang members, ” Motion at 6,
and “become a conduit for the admission of”
evidence violative of the Confrontation Clause, see
Motion at 6. For the Defendants, that the United States also
identified the Gang Experts as potential fact witnesses
heightens the risks that Gang Experts pose. See
Motion at 6. Accordingly, the Defendants request that the
Court take eight actions to limit the Gang Experts'
(1) Determine the scope of the witness's expertise and
how the expertise was acquired, which involves a
consideration of education, training and actual experience;
(2) Assess whether the expert is arriving at an independent
judgment, applying the expert's training and experience
to the facts of the case;
(3) Limit the expert's testimony to the scope of the
(4) Prohibit any testimony about the meeting or substance of
conversations with witnesses who are not available for
(5) Prohibit the interpretation of ambiguous slang terms or
other words unique to the particular case;
(6) Require the government to identify any out-of-court
statements it expects to be part of an expert's
(7) Prohibit testimony about out-of-court statements that are
offered only for their truth without any synthesis or
analysis in the form of expert opinion[;]
(8) Not allow an expert to base an opinion solely on an
Motion at 6-7.
United States responded on May 17, 2018. See United
States' Response to Defendant Anthony Cordova's
Motion to Compel [Doc. 561] at 1, filed May 17, 2018 (Doc.
645)(“Response”). The United States notes that,
while the Expert Notice does not provide the Defendants
“specific opinions of the witness, bases and reasoning
for the opinion, and qualifications, ” it reveals the
“information by way of the memo and curricula vitae for
both these expert witnesses.” Response at 5. According
to the United States, the disclosure through the Gang Memo.
and summary of the Gang Experts' qualifications satisfy
rule 16(a)(1)(G) of the Federal Rules of Civil Procedure,
which requires the disclosure of information only and does
not require the form that the Defendants allege it to
require. See Response at 5-6 (citing Fed.R.Evid.
16(a)(1)(G); United States v. Nacchio, 555 F.3d
1231, 1262 (10th Cir. 2009)(McConnell, J., dissenting)). The
United States contends that its Expert Notice meets rule
16's requirements, because the Expert Notice describes
the Gang Experts' backgrounds and the opinions that they
may offer at trial. See Response at 6. The
Defendants state: “The Expert Notice's summary that
each of these expert witnesses has had multiple years of
employment with the New Mexico Corrections Department, and
especially the STIU, provides them bases for the opinions
they intend to offer.” Response at 7. Likewise, the
Expert Notice's enumeration of the Gang Experts'
qualifications, which include “investigations,
intelligence-gathering, and threat assessment experience,
” qualifies them as experts, and meets the standard
that the Court has upheld for such summaries for law
enforcement experts. Response at 7 (citing United States
v. Jackson, 51 F.3d 646, 651 (7th Cir. 1995); United
States v. Goxcon-Chagal, 886 F.Supp.2d 1222, 1253
(D.N.M. 2012)(Browning, J.)). The United States asks that the
Court order the United States to rewrite the Expert Notice if
the Court finds the Expert Notice insufficient rather than
exclude the Gang Experts' testimony, as the Defendants
have “substantial notice about what the United
States' experts intend to testify.” Response at 8
(citing United States v. Sarracino, 340 F.3d 1148,
1170 (10th Cir. 2003); United States v. Jackson, 51
F.3d at 651; United States v. Goxcon-Chagal 886
F.Supp.2d at 1253). Regarding the Defendants' request for
a Daubert hearing, the United States indicates that
the “Court has heard extensive evidence and motion
hearings as to this issue in United States v.
DeLeon, No. CR 15-4268 JB and United States v.
Varela, No. 15-4269 JB.” Response at 1. The United
States requests “the Court to take judicial notice of
the argument and objects made in those proceedings, ”
in which the Court “found that gang expert witnesses
would be able to testify as to gangs generally.”
Response at 1-2 (citing Transcript of Hearing at 68-70 (taken
November 27, 2017), filed December 6, 2017 (Doc.
1545)(“Nov. 27 Tr.”)). Further, the Defendants
argue that a Daubert hearing “is not
specifically mandated, ” Response at 2 (citing
United States v. Nacchio, 555 F.3d at 1261), and
that “there should be no concern about implications of
scientific certainty or expertise, ” because the Gang
Experts will not offer scientific testimony, Response at 2.
response, the Defendants filed the Reply to Government's
Response in Opposition to Anthony Cordova's Motion to
Compel Compliance with Rule 16, For a Daubert
Hearing and Alternative Motion to Exclude Testimony of Gang
Expert Witnesses, filed May 31, 2018 (Doc.
668)(“Reply”). Replying to the United States'
arguments about Rule 16 disclosure, the Defendants aver:
[T]hat a statutory scheme that imposes stringent disclosure
requirements in civil cases, which involve disputes over
money or injury to personal rights, but fails to require
equally expansive disclosure in this criminal case, where Mr.
Cordova is subject to a mandatory sentence of life in prison
without possibility of release, violates the Fifth Amendment
[to the Constitution of the United States] right to due
process of law, the Fourteenth Amendment [to the Constitution
of the United States] right to equal protection under the law
and the Sixth Amendment [to the Constitution of the United
States] rights to the effective assistance of counsel and a
Reply at 2. The Defendants, citing the advisory
committee's notes to rule 16, further contend that a
written summary of the Gang Experts' testimony, including
“written and oral reports, tests, reports and
investigations and any information that might be recognized
as a legitimate basis for an opinion, ” Reply at 3, is
required, although, according to the Defendants, such a
statement is not “equivalent, ” Reply at 2, to
the “complete statement required of litigants in civil
cases, ” Reply at 1 (quoting Response at 6). The Court,
the Defendants argue, should exclude the Gang Experts'
testimony and not allow the United States to correct the
Expert Notice. See Reply at 3-4. According to the
Defendants, the United States' “refusal to make
Jencks Act [18 U.S.C. § 3500] disclosures until June 24,
2018, ” means that the Defendants have “two weeks
before trial to review critical Jencks material, ” and
adding to that task, preparing objections to the Gang
Expert's testimony and for Daubert litigation,
“is fundamentally unfair.” Reply at 3.
United States v. DeLeon, CR 15-4268 JB, November 27,
Response, the Defendants reference the Court's oral order
at the November 27, 2018, hearing in United States v.
DeLeon, CR 15-4268 JB. See Response at 1-2. At
the November 27, 2018, hearing, the Court indicated that it
would draw the line delineating admissible gang expert
testimony where the United States Court of Appeals for the
Second Circuit, in an opinion that the Honorable Peter W.
Hall, United States Circuit Judge for the Second Circuit,
wrote, and that the Honorable Barrington D. Parker, United
States Circuit Judge for the Second Circuit, and the
Honorable Dennis Jacobs, United States Circuit Judge for the
Second Circuit, drew the line in United States v.
Mejia, 545 F.3d 179, 190-91 (2d Cir.
2008)(“Mejia”), on which the Honorable
Harris L. Hartz, United States Circuit Judge for the United
States Court of Appeals for the Tenth Circuit, relied in
United States v. Garcia, 793 F.3d 1194, 1213-14
(10th Cir. 2015), an opinion that Judge Hartz wrote and that
the Honorable Timothy M. Tymkovich, United States Circuit
Judge for the Tenth Circuit, and the Honorable Gregory A.
Phillips, United States Circuit Judge for the Tenth Circuit,
joined. See Nov. 27 Tr. at 69:11-17 (Court). The
[T]he experts are not going to be able to really talk about
the SNM . . . gang specifically. They can talk generally
about gangs. The fact that SNM comes out of their mouth as
they talk about other gang [sic] I don't think is
important, but they can't specifically talk about the SNM
gang . . . .
Nov. 27 Tr. at 69:20-25 (Court). The Court noted that, if the
United States in United States v. DeLeon wanted to
introduce specific evidence about tattoos, the Court would
“have a hearing, ” Nov. 27 Tr. at 70:8 (Court),
with those experts and “listen to what the basis of
their opinion is, and then make balls and strikes calls on an
individual basis, ” Nov. 27 Tr. at 70:9-11 (Court).
June 14, 2018, Hearing.
Court held a hearing on the Motion on June 14, 2018.
See Minute Order, filed June 11, 2018 (Doc. 714). At
the hearing, the Defendants opined that if the Court and the
parties agreed to follow the Court's prior rulings on
gang expert testimony, the Court and the parties would not
“need to proceed with a Daubert
hearing.” Draft Transcript of Hearing at 223:16-17
(taken June 14, 2018)(Morrissey)(“June 14
Tr.”). See id. at 223:13-17
(Morrissey). The Defendants summarized the prior rulings: the
Court relied on Mejia, so such experts “can
testify about how gangs operate in a generic sense, and in
general they can testify that gangs identify themselves by
tattoos; that gangs may use slang words in communication, but
they cannot do any specific testimony about the SNM, and
their particular tattoos . . . .” June 14 Tr. at
223:21-25 (Morrissey). The Defendants continued:
“[P]eople who worked at the prison and Government
familiar with the SNM can testify about them, but no
specifics.” June 14 Tr. at 224:4-5 (Morrissey). The
United States, the Defendants explained, could “call
fact witnesses about how the Corrections Department”
identifies people as gang members but not about who “is
in fact a gang member.” June 14 Tr. at 224:7:11
(Morrissey). Expert witnesses, the Defendants stated,
“could not relate hearsay from a cooperator or
[corroborator] in the guise of expert testimony.” June
14 Tr. at 224:14-15 (Morrissey). According to the Defendants,
testimony on whether SNM is an “enterprise, ”
June 14 Tr. at 224:19 (Morrissey), or “engaged in
racketeering activity, ” June 14 Tr. at 224:20
(Morrissey), is also inadmissible through the Gang
Experts' testimony. See June 14 Tr. at 224:18-21
(Morrissey). The Defendants continued: “[T]here could
be generic testimony about how gangs do crimes to advance
their purposes but no testimony that the SNM does crimes to
advance any particular purpose.” June 14 Tr. at
224:21-24 (Morrissey). Finally, the Gang Experts, the
Defendants clarified, could testify as fact witnesses
“to what [they] did, saw[, ] or heard.” June 14
Tr. at 224:25-225:1 (Morrissey). The Defendants admitted that
they did not know whether the United States would call the
Gang Experts and that they did not expect the United States,
at the moment, to commit one way or the other. See
June 14 Tr. at 225:6-11 (Morrissey). The United States agreed
with the Defendants' comments, see June 14 Tr.
at 226:17-18 (Beck), and the Court indicated that it would
“incorporate those rulings [from United States v.
DeLeon] into this case, ” June 14 Tr. at 225:20
REGARDING DISCOVERY IN CRIMINAL CASES
defendant is entitled, under some circumstances, to request a
written summary of expert testimony the United States intends
to use in its case-in-chief.” United States v.
Goxcon-Chagal 886 F.Supp.2d at 1227. Rule 16(a)(1)(G) of
the Federal Rules of Criminal Procedure provides:
(G) Expert witnesses. -- At the
defendant's request, the government must give to the
defendant a written summary of any testimony that the
government intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its casein-chief at trial.
If the government requests discovery under subdivision
(b)(1)(C)(ii) and the defendant complies, the government
must, at the defendant's request, give to the defendant a
written summary of testimony that the government intends to
use under Rules 702, 703, or 705 of the Federal Rules of
Evidence as evidence at trial on the issue of the
defendant's mental condition. The summary provided under
this subparagraph must describe the witness's opinions,
the bases and reasons for those opinions, and the
Fed. R Crim. P. 16(a)(1)(G).
is not clear how much detail must be provided to satisfy this
provision.” 25 James Wm. Moore, Moore's Federal
Practice § 616.05, at 616-65 (3d ed. 2012). The
United States Court of Appeals for the Seventh Circuit found
the following summary of expert testimony sufficient,
“although barely, ” when the United States
planned to present evidence regarding a drug courier-profile:
In response to your Request for Written Summary of the
Government's Proposed Expert Testimony dated December 3,
1993, please be advised that Officers Emmit C. Carney, Jerry
Cheung, and R.J. Kenney may testify at trial concerning the
use of beepers, firearms, walkie-talkies, and Western Union
wire transfers in connection with the sale of narcotics. In
addition, each of these officers may testify that narcotics
traffickers often secure locations such as houses or
apartments to serve as a base for dealing narcotics. Each of
these police officers will base their testimony on their
years of training and experience in the area of drug
United States v. Jackson, 51 F.3d at 651. The
Seventh Circuit elaborated that, in “cases involving
technical or scientific evidence, ” there may be a
“greater disclosure” obligation, “including
written and oral reports, tests, investigations, and any
other information that may be recognized as a legitimate
basis for an opinion under Fed.R.Evid. 703.” United
States v. Jackson, 51 F.3d at 651 (citing Fed. R. Crim.
P. 16 advisory committee's notes). See Jacobsen v.
Deseret Book Co., 287 F.3d 936, 953 (10th Cir.
2002)(holding that the purpose of rule 26(a) expert
disclosures is “not only to identify the expert
witness, but also ‘to set forth the substance of the
direct examination'” (quoting Fed.R.Civ.P. 26(a)(2)
advisory committee's notes)); United States v.
Goxcon-Chagal 886 F.Supp.2d at 1253-54. See also
United States v. Rodriguez, 125 F.Supp.3d 1216, 1259
(D.N.M. 2015)(Browning, J.)(finding a rule 16(a)(1)(G) notice
adequate when it gave no indication of the expert
opinions' bases but specified the expert's
qualifications and the Court could infer that the expert
based the opinion on his “training and
experience” and, at a hearing, the United States
disclosed an opinion omitted from the summary); United
States v. Goxcon-Chagal 886 F.Supp.2d at 1254 (holding a
summary a rule 16(a)(1)(G) notice sufficient when it stated
generally the subject matter, background, and basis for the
16(d)(1) provides guidelines for courts to regulate discovery
by issuing or modifying protective orders:
At any time the court may, for good cause, deny, restrict, or
defer discovery or inspection, or grant other appropriate
relief. The court may permit a party to show good cause by a
written statement that the court will inspect ex parte. If
relief is granted, the court must preserve the entire text of
the party's statement under seal.
Fed. R. Crim. P. 16(d)(1). In In re Terrorist Bombings of
United States Embassies in East Africa, 552 F.3d 93 (2d
Cir. 2008), the Second Circuit held that rule 16(d) gives
district courts the discretion to determine the circumstances
“under which the defense may obtain access to
discoverable information.” 552 F.3d at 122. In
United States v. Delia, 944 F.2d 1010 (2d Cir.
1991), the Second Circuit noted that rule 16(d)(1) is
“permissive, ” and gives district courts the
ability to “limit or otherwise regulate discovery
pursuant to Rule [16(d)(1)].” 944 F.2d at 1018.
16(d)(2) “gives the district court broad discretion in
imposing sanctions on a party who fails to comply with”
rule 16, United States v. Wicker, 848 F.2d 1059,
1060 (10th Cir. 1988):
(2) Failure to Comply. If a party fails to
comply with this rule, the court may:
(A) order that party to permit the discovery
or inspection; specify its time, place, and manner; and
prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the
undisclosed evidence; or
(D) enter any other order that is just under
Fed. R. Crim. P. 16(d)(2).
In selecting a proper sanction, a court should typically
consider: (1) the reasons the government delayed producing
requested materials, including whether the government acted
in bad faith; (2) the extent of prejudice to defendant as a
result of the delay; and (3) the feasibility of curing the
prejudice with a continuance.
United States v. Charley, 189 F.3d 1251, 1262 (10th
Cir. 1999)(internal quotation marks omitted)(quoting
United States v. Gonzales, 164 F.3d 1285, 1292 (10th
Cir. 1999)). In United States v. Martinez,
455 F.3d 1127 (10th Cir. 2006), the United States Court of
Appeals for the Tenth Circuit held that “a court should
impose the least severe sanction.” 455 F.3d at 1131
(quoting United States v. Wicker, 848 F.2d at 1061).
The Tenth Circuit noted: “Rule 16 and our cases
specifically mention continuance or exclusion of the evidence
as preferred remedies.” States v.
Martinez, 455 F.3d at 1131.
LAW REGARDING EXPERT TESTIMONY
the Supreme Court of the United States decided
Daubert . . ., trial courts have had the
responsibility to make certain that proffered experts will
assist the jury in understanding the evidence and in
determining the factual issues it must decide.”
United States v. Gutierrez-Castro, 805 F.Supp.2d
1218, 1224 (D.N.M. 2011)(Browning, J.). “The Court now
must not only decide whether the expert is qualified to
testify, but, under Daubert whether the opinion
testimony is the product of a reliable methodology.”
United States v. Gutierrez-Castro, 805 F.Supp.2d at
1224. “Daubert . . . requires a court to
scrutinize the proffered expert's reasoning to determine
if that reasoning is sound.” United States v.
Gutierrez-Castro, 805 F.Supp.2d at 1224.
Rule 702 of the Federal Rules of Evidence governs the
admissibility of expert testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of