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United States v. Baca

United States District Court, D. New Mexico

December 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY RAY BACA, a.k.a. “Pup”; CHRISTOPHER GARCIA; MANUEL JACOB ARMIJO, a.k.a. “Big Jake”; FREDERICO MUNOZ, a.k.a. “Playboy”; 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”; RICHARD GALLEGOS, a.k.a. “Dopey”; and ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” Defendants.

          Fred 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

          Todd Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC Albuquerque, New Mexico 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 Albuquerque, New Mexico Attorneys for Defendant Manuel Benito

          Diego R. Esquibel The Barnett Law Firm Albuquerque, New Mexico --and-- R. Scott Reisch Reisch Law Firm, LLC Denver, Colorado Attorneys for Defendant Vincent Garduno

          Marc Grano Grano Law Offices Las Vegas, New Mexico Attorney for Defendant Mandel Lon Parker

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

          Lauren 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

          Marcia 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

          Scott 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

         THIS 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.

         FACTUAL BACKGROUND

         The 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”).[1] 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 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 [“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.

         PROCEDURAL BACKGROUND

         The 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[2] 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 53-54.[3]

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).

         Of the 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).

         1.The Expert Notice.

         On 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.

         The 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.

         The 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.

         The 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)).

         In the 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[4] 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[5] or weelas[6], ” 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.

         The 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.

         2.The Motion.

         Cordova 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[7] 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' testimony:

(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 expert's experience;
(4) Prohibit any testimony about the meeting or substance of conversations with witnesses who are not available for cross-examination;
(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 testimony[;]
(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 out-of-court statement.

Motion at 6-7.

         3. The Response.

         The 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.

         4.The Reply.

         In 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 fair trial.

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.

         5.The United States v. DeLeon, CR 15-4268 JB, November 27, 2018, Hearing.

         In the 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 Court specified:

[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).

         6.The June 14, 2018, Hearing.

         The 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.”).[8] 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 (Court).

         LAW REGARDING DISCOVERY IN CRIMINAL CASES

         “A 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 witness's qualifications.

Fed. R Crim. P. 16(a)(1)(G).

         “It is not clear how much detail must be provided to satisfy this provision.” 25 James Wm. Moore, Moore's Federal Practice § 616.05[3], 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 investigations.

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 experts' testimony).

         Rule 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.

         Rule 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 the circumstances.

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.

         RELEVANT LAW REGARDING EXPERT TESTIMONY

         “Since 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 ...

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