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United States v. Deleon

United States District Court, D. New Mexico

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON, JOE LAWRENCE GALLEGOS, EDWARD TROUP, a.k.a. “Huero Troup, ” LEONARD LUJAN, BILLY GARCIA, a.k.a. “Wild Bill, ” EUGENE MARTINEZ, a.k.a. “Little Guero, ” ALLEN PATTERSON, CHRISTOPHER CHAVEZ, a.k.a. “Critter, ” JAVIER ALONSO, a.k.a. “Wineo, ” ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” BENJAMIN CLARK, a.k.a. “Cyclone, ” RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. “Creeper, ” JERRY MONTOYA, a.k.a. “Boxer, ” MARIO RODRIGUEZ, a.k.a. “Blue, ” TIMOTHY MARTINEZ, a.k.a. “Red, ” MAURICIO VARELA, a.k.a. “Archie, ” a.k.a. “Hog Nuts, ” DANIEL SANCHEZ, a.k.a. “Dan Dan, ” GERALD ARCHULETA, a.k.a. “Styx, ” a.k.a. “Grandma, ” CONRAD VILLEGAS, a.k.a. “Chitmon, ” ANTHONY RAY BACA, a.k.a. “Pup, ” ROBERT MARTINEZ, a.k.a. “Baby Rob, ” ROY PAUL MARTINEZ, a.k.a. “Shadow, ” CHRISTOPHER GARCIA, CARLOS HERRERA, a.k.a. “Lazy, ” RUDY PEREZ, a.k.a. “Ru Dog, ” ANDREW GALLEGOS, a.k.a. “Smiley, ” SANTOS GONZALEZ, PAUL RIVERA, SHAUNA GUTIERREZ, and BRANDY RODRIGUEZ, Defendants. Statement Ruling

         Counsel:

          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

          Richard Sindel Sindel, Sindel & Noble, P.C., Clayton, Missouri and Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos

          Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado and Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas Attorneys for Defendant Edward Troup

          Russel Dean Clark Las Cruces, New Mexico Attorney for Defendant Leonard Lujan

          James A. Castle Castle & Castle, P.C. Denver, Colorado and Robert R. Cooper Albuquerque, New Mexico Attorneys for Defendant Billy Garcia

          Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New Mexico Attorneys for Defendant Eugene Martinez

          Phillip A. Linder The Linder Firm Dallas, Texas and Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson

          John L. Granberg Granberg Law Office El Paso, Texas and Orlando Mondragon El Paso, Texas Attorneys for Defendant Christopher Chavez

          Nathan D. Chambers Nathan D. Chambers, LLC Denver, Colorado and Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso

          Scott Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark

          Leon Encinias Lean Encinias Attorney at Law Albuquerque, New Mexico and Pedro Pineda Las Cruces, New Mexico Attorneys for Defendant Ruben Hernandez

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya

          Steven M. Potolsky Jacksonville Beach, Florida and Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez

          Steven Lorenzo Almanza Las Cruces, New Mexico and Ray Velarde El Paso, Texas Attorneys for Defendant Timothy Martinez

          Joe Spencer El Paso, Texas and Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela

          Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California and Richard Jewkes El Paso, Texas and Lauren Noriega The Noriega Law Firm Los Angeles, California Attorneys for Defendant Daniel Sanchez

          George A. Harrison Las Cruces, New Mexico and Kimberly S. Brusuelas-Benavidez Albuquerque, New Mexico Attorneys for Defendant

          Gerald Archuleta B.J. Crow Crow Law Firm Roswell, New Mexico Attorneys for Defendant Conrad Villegas

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

          Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces, New Mexico Attorney for Defendant Robert Martinez

          Marcia J. Milner Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez

          Christopher W. Adams Charleston, South Carolina and Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia

          William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Attorneys for Defendant Carlos Herrera

          Justine Fox-Young Albuquerque, New Mexico and Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez

          Lisa Torraco Albuquerque, New Mexico and Donavon A. Roberts Albuquerque, New Mexico Attorneys for Defendant Andrew Gallegos

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorneys for Defendant Santos Gonzalez

          Keith R. Romero Albuquerque, New Mexico Attorney for Defendant Paul Rivera

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez

          Jerry A. Walz Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the United States' Sealed Supplemental Notice of Proposed James[1] Statements for Trial II, filed April 19, 2018 (Doc. 2135)(“James Notice”); (ii) the United States' Sealed Trial Brief Regarding Michael Jaramillo's Testimony, filed April 20, 2018 (Doc. 2138)(“Brief”); and (iii) the Defendants' oral motion to exclude Michael Jaramillo's testimony. The primary issues are: (i) whether Plaintiff United States of America must comply with 18 U.S.C. § 3432 __ which provides certain procedural protections to “[a] person charged with treason or other capital offense” __ if the United States does not seek to impose the death penalty in a particular case; (ii) whether the United States' failure to include Jaramillo in its pretrial witness list violates 18 U.S.C. § 3432 if that statute applies; (iii) whether excluding Jaramillo's testimony is an appropriate remedy for the United States' § 3432 violation if one occurred; and (iv) whether, if Jaramillo takes the stand, the out-of-court statements that the United States identifies in the James Notice and which Jaramillo will relate to the jury are admissible for their truth as co-conspirator statements under rule 801(d)(2)(E) of the Federal Rules of Evidence. The Court concludes that a capital offense is “[a] crime for which the death penalty may be imposed, ” Capital Offense, Black's Law Dictionary (10th ed. 2014), so 18 U.S.C. § 3432's requirements apply even if the United States does not seek to impose the death penalty in a particular case. The Court determines that the United States violated 18 U.S.C. § 3432 by failing to include Jaramillo on its witness list, but the Court also determines that excluding Jaramillo's testimony is not an appropriate remedy for this violation. Finally, the Court concludes that the out-of-court statements that the James Notice identifies are admissible for their truth.

         FACTUAL BACKGROUND

         The Court takes its background facts from the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Indictment”). The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, 323 F.R.D. 672, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or as the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

         This case deals with crimes that the Syndicato de Nuevo Mexico (“SNM”) allegedly committed through its members. See Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, “including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking.” Indictment at 2. SNM constitutes an enterprise “as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Indictment at 2-3.

         SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico (“PNM”) after a violent prison riot at the PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment at 3. SNM now has approximately 250 members, and “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issue orders to subordinate gang members.” Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and profit from narcotics trafficking. See Indictment at 3-4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, . . . includ[ing] murder and assaults.” Indictment at 4. SNM also “intimidate[es] and influenc[es] smaller New Mexico Hispanic gangs” to expand its illegal activities. Indictment at 4. If another gang does not abide by SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment at 4. SNM further engages in violence “to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others.” Indictment at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the Federal Bureau of Investigation's (“FBI”) present investigation. United States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order at 2, 221 F.Supp.3d 1275, 1277, filed November 16, 2016 (Doc. 133). The other relevant facts giving rise to this case are as follows.

         In March, 2014, a Doña Ana County, New Mexico grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder, and four other felonies, related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility (“Southern New Mexico”). Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753)(“MOO”). The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See MOO at 6, 2016 WL 7242579, at *3. That New Mexico indictment charged Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See MOO at 6-7, 2016 WL 7242579, at *3. In November, 2015, the state District Attorney dismissed the charges against Montoya and Armenta __ as well as separate charges against their alleged accomplice, Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy. See MOO at 7, 2016 WL 7242579, at *3. “A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level.” MOO at 7, 2016 WL 7242579, at *3.

         The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the SNM enterprise's operation and management, and of committing unlawful activities “as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity.” Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta, [2] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [3] and Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) define that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, and 1513, “involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant”; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Indictment at 9.

         Specifically, the Indictment alleges that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia murdered “F.C.” Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, and Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered “R.G.” Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered “F.S.” Indictment at 10-11 (Count 3). On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder “A.B.” Superseding Indictment at 11 (Count 4). On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Indictment at 11-12 (Count 5). In March, 2014, Armenta, Montoya, M. Rodriguez, Defendant Timothy Martinez, Baca, Defendant Mauricio Varela, Sanchez, Defendant Carlos Herrera, and Defendant Rudy Perez allegedly conspired to murder “J.M.” Indictment at 12 (Count 6). On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera, and Perez allegedly murdered J.M. See Indictment at 13 (Count 7).

         Further, starting in or around 2003 -- and until about July 13, 2015 -- Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to “J.R.” Indictment at 13-14 (Count 8). Starting “on a date uncertain, but no later than 2013, ” and until the date of the Indictment -- April 21, 2014 -- Baca, R.P. Martinez, and R. Martinez allegedly conspired to murder “D.S.” Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder “G.M.” Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Indictment at 15-16 (Count 11). On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a charge of conspiracy to murder. See Indictment at 16 (Count 12).

         On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against “J.G.” Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, J. Gallegos and Defendants Santos Gonzales, Paul Rivera, Shauna Gutierrez, and Brandy Rodriguez allegedly conspired to murder “J.G.” Indictment at 17 (Count 14). Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzales, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Indictment at 17-18 (Count 15). The same Defendants also allegedly tampered with a witness, J.G. See Indictment at 18 (Count 16).

         For fuller factual context, there are four cases before the Court related to SNM's alleged criminal activity. In a related case -- United States v. Baca, No. CR 16-1613 (D.N.M.)(Browning, J.)[4] -- the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d).[5] There is also a separate prosecution of C. Garcia for drug crimes, see United States v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a four-defendant prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959. See United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).

         PROCEDURAL BACKGROUND

         Early in this case, the United States indicated that it would not seek the death penalty. See Notice of Intent Not to Seek a Sentence of Death at 1, filed June 6, 2016 (Doc. 567). On June 30, 2017, the Court severed for trial the Indictment's Counts 6-12 from its Counts 1-5 and Counts 13-16. See Memorandum Opinion and Order at 3, 2017 WL 3054511, at *1, filed June 30, 2017 (Doc. 1204)(“Severance MOO”). The result of this severance is one trial for the Indictment's Counts 6-12, [6] and another, separate trial for the Indictment's Counts 1-5 and 13-16.[7] See Severance MOO at 3, 2017 WL 3054511, at *1. At the time of severance, nineteen Defendants remained in the case. See Severance MOO at 175, 2017 WL 3054511, at *102. The trial of the Indictment's Counts 1-5 and 13-16 “would then involve the prosecution of eleven Defendants, none of whom are named in Counts 6-12.” Severance MOO at 175, 2017 WL 3054511, at *102. Further, the trial of the Indictment's Counts 6-12 “would involve the prosecution of eight Defendants none of whom are named in Counts 1-5 or 13-16.” Severance MOO at 175, 2017 WL 3054511, at *102. The trial for Counts 6-12 would proceed first, with jury selection to begin on January 19, 2018 (“Trial I”), followed by the trial for Counts 1-5 and 13-16, with jury selection to begin on April 9, 2018 (“Trial II”). See Fourth Scheduling Order at 3, filed July 7, 2017 (Doc. 1205). This Memorandum Opinion and Order deals with Trial II. Seven Defendants proceeded to trial for Trial II: J. Gallegos, Troup, B. Garcia, Patterson, Chavez, A.A. Garcia, and A. Gallegos (collectively, “Trial II Trial Defendants”).

         On March 12, 2018, the Court held a pretrial conference for Trial II. See Transcript of Hearing at 6:8-16 (taken March 12, 2018)(Court), filed April 3, 2018 (Doc. 2026)(“March 12 Tr.”). At that pretrial conference, Defendant Edward Troup requested “that, like you did in the first trial, . . . you order the Government to provide a may call and a will call witness list two weeks prior to the start of the trial, which would be March 26.” March 12 Tr. At 45:6-9 (Harbour-Valdez). The United States replied:

I think that we have narrowed it down to will call. The first list is pretty much a significant long list. But we have it narrowed down, and so I think that everyone we put on there has a pretty good chance of being called. If there [are] people that we're going to add in that are just potentials, we will do it. But right now the list that we're working on will be a list that is pretty significant.
. . . If after we meet -- as you know, we've been busy 8 -- if after we're able to meet and decide on additional people to put in there, then we would put in the list that we filed potential witnesses.

         March 12 Tr. at 45:25-46:4 (Armijo). The United States added that “we would ask for a reciprocal date before -- I don't have the order in front of me, but I believe previously we had dates that both parties gave witness lists. So as long as the defendants want[] to give their witness list on March 26, that's fine.” March 12 Tr. at 46:19-24 (Armijo). After some wrangling about dates, the Court set out -- and the United States confirmed -- the United States and the Defendants' agreement regarding witness lists:

THE COURT: Let's do this: Let's just -- I mean, I think it's most important to give -- to get the Government's into your hands. So I will set March 26 as the date. Sounds like the Government is pretty far along in figuring out who their will call people may be, and they will have a short list of may call. So I think you're going to get what you want.
Why don't the defendants do the same thing. And I understand you may have to revise it after you see the Government's list. So you'll have a chance to do it. But at least at the present time you'll have a reciprocal exchange, with the understanding that after the Government shows you their list, you may have to revise your list.
MS. HARBOUR-VALDEZ: And Your Honor, Mr. Cooper pointed out that the prior deadline would have been March 23 for the will call list. The Jencks deadline was March 26.
THE COURT: All right. So the Government is shaking their head yes.
MS. ARMIJO: That's fine, Your Honor. We can do the 23rd. And then if the defense wants [to] file their witness list on the 26th, have the weekend, that's fine, too. We'll provide ours the 23rd.
THE COURT: All right. So let's do that.

         March 12 Tr. at 47:5-48:3 (Court, Harbour-Valdez, Armijo). The United States' first witness list did not include Jaramillo. See United States' Sealed Supplemental Witness List for Trial II at 1-2, filed March 23, 2018 (Doc. 1968)(“United States' Pretrial Witness List”). The United States filed a supplemental witness list on the first day of jury selection, but that list does not include Jaramillo. See United States' Sealed Amended Supplemental Witness List for Trial II at 1-2, filed April 9, 2018 (Doc. 2091). That day, during voir dire, the United States listed its potential witnesses and asked whether any members of the venire knew those individuals; Jaramillo was not included on that list. See Transcript of Jury Trial at 81:12-82:18 (taken April 9, 2018)(Beck), filed July 25, 2018 (Doc. 2354). During the second day of voir dire, the United States read its list to the venire again and included Jaramillo on that list. See Transcript of Jury Trial at 114:2-3 (taken April 10, 2018)(Beck), filed July 25, 2018 (Doc. 2355). FBI Special Agent Bryan Acee, the case agent and the United States' designated representative under rule 615(b) of the Federal Rules of Evidence, handed a yellow sticky note with Jaramillo's name to Assistant United States Attorney Mathew Beck, who read that name after reading all of the names on the United States' typed witness list, almost as an afterthought. A jury was seated and sworn on Wednesday, April 11, 2018.

         1. The Opening Statements.

         Opening statements began the next day. In his opening statement, B. Garcia emphasized that the United States' case rests on uncorroborated testimony. See Transcript of Excerpt of Opening Statements at 26:23-27:2 (taken April 12, 2018)(Castle), filed May 9, 2018 (Doc. 2233)(“Openings Tr.”)(“[W]hat you're going to find out in this case is there is absolutely no corroboration. What I mean by ‘corroboration' is facts that prove what someone says, as opposed to just their words.”). B. Garcia identified several of the United States' witnesses and explained why, in his opinion, those witnesses are not trustworthy. See Openings Tr. at 50:13-58:20 (Castle); id. at 63:15-68:20 (Castle); id. at 79:11-89:16 (Castle). B. Garcia was careful to note, however, that his list was not exhaustive and that the United States might have other witnesses:

Now, there might be a few more inmates. We don't know. I mean, sometimes new stuff bubbles up because more prisoners want to get out of their sentence or see this as an opportunity. So there might be people I haven't shown you that might come in here, that we don't know about yet. But I'd be almost shocked if there wasn't more guys thinking that this is an opportunity to walk out some door somewhere. But this is what we've been able to find out about, the ones that we know about.
It's upon the word and character of those men that the Government rests its entire case. It's not DNA. It's not corrections officers who saw anything. It's not videotape. It's not fingerprints. It's not fingernail scrapings. It's not hair. It's nothing other than the word and character of these men.

         Openings Tr. at 89:17-90:8 (Castle). J. Gallegos and Troup likewise identified United States witnesses, and attacked their credibility during their opening statements. See Openings Tr. at 95:8-97:7 (Benjamin); id. at 110:7-112:5 (Benjamin); id. at 115:4-119:5 (Burke).

         2. The Jaramillo Interview.

         On Wednesday, April 18, 2018, the United States -- through Mr. Beck and FBI Special Agent Joseph Sainato -- presented a Kastigar letter[9] to Jaramillo and interviewed him for the first time.[10] See FBI 302 of Michael Jaramillo at 1 (dated April 19, 2018), filed April 19, 2018 (Doc. 2135-1)(“Jaramillo 302”). Jaramillo's interview focuses on the Count 1 homicide of Frank Castillo in 2001. Jaramillo 302 at 2-4; Indictment at 9. Jaramillo stated that, a few days before Castillo's murder, Lujan approached him and had him follow Lujan to the library, where DeLeon was waiting. See Jaramillo 302 at 2. According to Jaramillo, Lujan told Jaramillo that he needed to “put in work” -- that B. Garcia wanted Lujan to find people to kill Castillo and that Lujan wanted Jaramillo, J. Gallegos, and DeLeon to do it. Jaramillo 302 at 2. Jaramillo relayed that he and DeLeon then spoke with J. Gallegos about the order, and that J. Gallegos said “that he was waiting on a delivery of heroin and that they would wait until after the delivery to make the move on” Castillo. Jaramillo 302 at 2. Jaramillo said that J. Gallegos' heroin delivery “came in later that day or the next, ” and that J. Gallegos called Jaramillo and DeLeon into his cell before the evening lockdown to inform them that they would enter Castillo's cell as soon as doors opened the next morning. Jaramillo 302 at 3. Jaramillo stated that J. Gallegos told them that they would use heroin with Castillo, then DeLeon would hold down Castillo as he took his heroin and Jaramillo would then strangle him. See Jaramillo 302 at 3. According to Jaramillo, J. Gallegos said that Troup would serve as lookout for them and told them to refuse any police-requested DNA tests. See Jaramillo 302 at 3. Jaramillo also said that J. Gallegos promised that “his family would pay for an attorney for them if they got in trouble.” Jaramillo 302 at 3. Jaramillo stated that this conversation ended after J. Gallegos called over Troup and told Troup that he would be a lookout the next morning. See Jaramillo 302 at 3. Jaramillo recalled that he went back to his cell and used heroin, which J. Gallegos had given him earlier that day, for the first time. See Jaramillo 302 at 3.

         Jaramillo said that, the next morning, he joined J. Gallegos, DeLeon, and Castillo in Castillo's cell. See Jaramillo 302 at 3. Jaramillo stated that J. Gallegos gave Castillo the heroin, and as Castillo was injecting himself, Jaramillo and DeLeon “grabbed him, flipped him around and held him face-down on his bed, with his head toward the wall.” Jaramillo 302 at 3. Jaramillo said that he took the drawstring from Castillo's laundry bag, wrapped it around Castillo's neck, and tied a knot in the string once Castillo stopped struggling. See Jaramillo 302 at 3. Jaramillo said that he left the cell and saw Troup downstairs, but nobody else, returned to his own cell, and then went to breakfast. See Jaramillo 302 at 3. Jaramillo said that New Mexico Corrections Department officials instituted lockdown after breakfast and put everyone in their cells, which Jaramillo estimated occurred less than an hour after Castillo's murder. See Jaramillo 302 at 3-4. Jaramillo stated that New Mexico State Police arrived that night, and that he gave them a DNA sample and a brief statement. See Jaramillo 302 at 4.

         The United States provided Sainato's notes from that interview to the Defendants later in the afternoon of April 18, 2019. See Brief at 14. The next day, April 19, 2018, Sainato drafted the Jaramillo 302, see Jaramillo 302 at 1, and the United States provided that document to the Defendants, see Brief at 2. The United States also filed the James Notice on that day. See James Notice at 1. The James Notice summarizes out-of-court statements that the United States expects, based on the Jaramillo 302, that Jaramillo will relate to the jury when he takes the stand. See James Notice at 1. The United States also filed witness lists on that day listing Jaramillo as a witness for the first time. See United States' Sealed Supplemental Witness List for Trial II at 2, filed April 19, 2018 (Doc. 2136); United States' Sealed Supplemental Witness List for Trial II at 3, filed April 19, 2018 (Doc. 2137).

         Also on April 19, 2018, the Count 1 Trial Defendants -- J. Gallegos, Troup, and B. Garcia -- orally moved the Court to prevent Jaramillo from testifying. See Draft Trial Transcript at 121:17-122:4 (taken April 19, 2018)(Burke)(“April 19 Tr.”).[11] They asserted that they first learned that Jaramillo might be a witness when they received Sainato's notes. See April 19 Tr. at 2:11-24 (Sindel); id. at 120:18-121:5 (Burke) J. Gallegos indicated that “an investigator for our team had gone out and talked to Mr. Jaramillo and he said he didn't know anything about” the Castillo murder. April 19 Tr. at 7:6-8 (Sindel).

         The Count 1 Trial Defendants contended that, if they had known earlier that Jaramillo might testify, their opening statements and voir dire -- as well as their planned cross-examination of Lujan, who had not yet taken the stand -- would have been different. See April 19 Tr. at 3:4-16 (Sindel); id. at 6:3-11 (Sindel). They explained that the Jaramillo 302 disclosure affects their cross-examination of Lujan, because Jaramillo's statements contradict Lujan's expected testimony. See April 19 Tr. at 6:14-24 (Sindel). The Court instructed the United States to delay Lujan's testimony so that the Defendants could prepare to cross-examine Lujan in light of the United States' disclosures regarding Jaramillo. See April 19 Tr. at 12:9-19 (Court). The Court indicated that the United States' failure to identify Jaramillo on its witness list likely violated both the United States' agreement with the Defendants regarding pretrial disclosure of witness lists and 18 U.S.C. § 3432's requirement that “[a] person charged with treason or other capital offense shall at least three entire days before commencement of trial . . . be furnished with . . . a list . . . of the witnesses to be produced on the trial for proving the indictment.” 18 U.S.C. § 3432. See April 19 Tr. at 12:12-13 (Court); id. at 141:22-142:6 (Court); id. at 142:15-19 (Court). The Court told the United States that, “for present purposes, ” it would need to plan its case without Jaramillo's testimony. April 19 Tr. at 202:7. See id. at 202:7-9.

         3. The Brief.

         The United States argues that 18 U.S.C. § 3432 does not apply to this case, because “the United States did not file a notice of intent to seek the death penalty, see 18 U.S.C. § 3593, [so] the death penalty may not be imposed, and this is not, therefore, a capital offense for purposes of § 3432.” Brief at 1. The United States notes that the Courts of Appeals “that have analyzed this issue uniformly agree that § 3432 does not apply where a defendant does not face the death penalty at the start of trial.” Brief at 8 (citing United States v. Shepperson, 739 F.3d 176, 181 n.3 (4th Cir. 2014)). Accordingly, the United States maintains that it did not need “to provide a witness list three days before trial.” Brief at 1. The United States also contends that § 3432 “does not apply when ‘material testimony [is] discovered during the progress of trial, '” so even if § 3423 applies, the Court should admit Jaramillo's testimony as it was revealed during the trial, albeit “in an FBI 302 instead of on the stand.” Brief at 2 (quoting United States v. Rosenberg, 195 F.2d 583, 599-600 (2d Cir. 1952)). Further, the United States asserts that § 3234 is inapplicable to rebuttal witnesses, and Jaramillo's testimony is “essential” to the United States' rebuttal of Lujan. Brief at 2. The United States notes that it filed a witness list, which inadvertently omitted Jaramillo, in compliance with § 3432 -- although the United States asserts § 3432 does not apply. See Brief at 1.

         According to the United States, this failure to include Jaramillo on the witness list did not cause significant prejudice to the Defendants, because they

have been on notice of the possibility Michael Jaramillo, a.k.a., “Criminal, ” being a witness in this case in Count 2[12] for the murder of Frank Castillo, a.k.a., “Pancho, ” since the outset of the case. One of the first documents produced in discovery, and a key piece of discovery since the beginning, was Leonard Lujan's recorded interview with Albuquerque Police Department Detective Rich Lewis from August of 2007. Lujan identified Joe Gallegos, Angel DeLeon, and “Criminal” -- Jaramillo -- as the three persons he tasked with murdering Castillo. And Lujan never waivered from that testimony. The Defendants are, therefore, not caught off guard by the appearance of a heretofore-unknown individual for whom they have never received notice. Rather, they have the benefit of knowing Jaramillo's testimony prior to taking the stand, rather than being surprised by it while he's on the stand.

         Brief at 7. The United States therefore maintains that its inadvertent omission of Jaramillo from the witness list “is readily apparent” to the Defendants. Brief at 14. Accordingly, the United States argues that, even if 18 U.S.C. § 3432 applies to this case, “the proper remedy isn't exclusion of the witness.” Brief at 11-12. The United States contends that its failure to include Jaramillo should, at most, “result in an adjournment for time to prepare, ” Brief at 12, because excluding Jaramillo's testimony would significantly impede “the truth-seeking purpose of the court system, ” Brief at 16.

         4. The Response.

         A.A. Garcia filed a written response to the United States' Brief. See Response to Government's Trial Brief Doc. 2138 Regarding Testimony of Michael Jaramillo, filed April 20, 2018 (Doc. 2139)(“Response”). A.A. Garcia asserts that the United States' failure to include Jaramillo on its witness list prejudiced the Defendants, because they were not

informed that they would have to meet the testimony of Mr. Jaramillo. Consequently, defense counsel and their clients have been unable to prepare their defense against Mr. Jaramillo's testimony. The Defendants, and in particular, Joe Gallegos and Edward Troup, were unable to conduct voir dire in light of Mr. Jaramillo's testimony; they were unable to present opening statement in light of this; their entire defense has been impacted in substantial ways by Mr. Jaramillo's late entry into the case, if he is permitted to testify.

         Response at 3. According to A.A. Garcia, “[e]ven if the notice requirement of § 3432 did not apply, the Defendants would be deprived of their rights to due process and to present a defense, if the Government is allowed to present the testimony of Mr. Jaramillo in this trial.” Response at 6. A.A. Garcia also argues that the Court has broad discretion to exclude Jaramillo's testimony. See Response at 9. A.A. Garcia asserts that excluding Jaramillo's testimony is appropriate, because giving the Defendants time to prepare for Jaramillo's testimony “would fail to cure the prejudice” that they suffer as a result of Jaramillo's omission from the United States' witness list, Response at 10, because “the Defendants were not allowed to conduct voir dire in relation to Mr. Jaramillo's confession; they were not allowed to present opening statements in light of his confession; [and] they were not allow[ed] to present their defense against the Government's case in chief with this information in hand, ” Response at 11.

         A.A. Garcia argues that 18 U.S.C. § 3432 applies because “the death penalty was originally sought, and only at a later date, was the death penalty taken off the table, ” Response at 5, and the statute's purpose is “to prevent trial by ambush” and enable the defendant to prepare a defense, Response at 3. He further asserts that “[t]he exception for rebuttal witnesses discovered during trial does not apply here, where none of the Defendants intends to present a case in chief pertaining to Mr. Jaramillo.” Response at 2. A.A. Garcia maintains that, if the rebuttal exception applies here -- where the United States is attempting to use Jaramillo to rebut the Defendants' cross-examination of the United States' case in chief -- § 3432's notice requirement would serve no purpose. Response at 8. A.A. Garcia contends that § 3432 does not contain “a broad exception for inadvertence.” Response at 3. Accordingly, A.A. Garcia underscores that the United States' late addition of Jaramillo as a trial witness “would dramatically alter the complexion of the case” and violates § 3432, and requests that the Court exclude Jaramillo's testimony. Response at 11. See id. at 2-3, 13.

         5. The Court's Decision on Jaramillo's Testifying.

         After thinking about the issue over the weekend, on Monday, April 23, 2018, the Court told the parties that it is “going to conclude that the statute does require in this case the United States to disclose its witnesses three entire business days, not including holidays and weekends, in advance” of trial. Transcript of Excerpt of Testimony of Leonard Lujan at 94:20-23 (taken April 23 and 24, 2018)(Court), filed May 16, 2018 (Doc. 2282)(“April 23 Tr.”). The Court noted that the statute does not include a remedy for its violation and so the remedy is within the Court's discretion, April 23 Tr. at 95:3-9 (Court); id. at 96:15-16 (Court), and informed the parties that it had “concluded that exclusion is not an appropriate remedy in this case” and that exclusion is “too Draconian in this case, ” April 23 Tr. at 95:9-11 (Court). The Court acknowledged the Defendants' arguments that they would have approached the case differently had they known earlier that Jaramillo would be called, but stated that, even had Jaramillo been named in the United States' witness list, the Defendants would not have known “what his testimony would be” and, thus, the Court did not believe that the Defendants “would have done anything or much differently than what they had, in fact, done.” April 23 Tr. at 95:17-20 (Court). See id. at 95:11-16 (Court). The Court therefore concluded that the appropriate remedy for the violation of § 3432 is “push[ing] this evidence down so the [D]efendants have more time to deal with Mr. Jaramillo.” April 23 Tr. at 95:24-96:1 (Court).

         FINDINGS OF FACT

         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 shall serve as the Court's essential findings for rule 12(d) purposes. The Court bases these conclusions on the testimony it heard at its James hearing as well as the evidence it admitted at that hearing. 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) (“The court must decide any preliminary question ...


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