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United States v. Baca

United States District Court, D. New Mexico

May 30, 2019

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 RODRIGUEZ, a.k.a “Churro”; MANUEL BENITO, a.k.a. “Panther”; VINCENT GARDUÑO a.k.a. “Fatal”; MANDEL LON PARKER, a.k.a. “Chuco”; DANIEL ARCHULETA, a.k.a. “Smurf”; DANIEL SANCHEZ, a.k.a. “Dan Dan”; ANTHONY CORDOVA, a.k.a. “Antone”; and ARTURO ARNULFO GARCIA, a.k.a. “Shotgun, ” Defendants.

          Fred Federici Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515 Albuquerque, New Mexico and Maria Ysabel Armijo Randy M. Castellano Matthew M. Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff.

          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.

          Christopher W. Adams The Law Office of Christopher W. Adams, P.C. 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. Louis Lopez Law El Paso, Texas Attorney for Defendant Frederico Munoz.

          Donald F. Kochersberger, III Business Law Southwest, LLC Albuquerque, New Mexico and Pamela Sullivan Law Office of Pamela Sullivan Albuquerque, New Mexico Attorneys for Defendant Sergio Loya Rodriguez.

          Susan Burgess-Farrell Barrett G. Porter Burgess & Porter Law, LLC 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 Garduño.

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

          James Baiamonte Law Office of James P. Baiamonte Esq. 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 Law Office of Marcia A. Morrissey Santa Monica, California and Gregory M. Acton Acton Law Firm P.C. Albuquerque, New Mexico Attorneys for Defendant Anthony A. Cordova.

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

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the United States' Proffer Under Fed.R.Evid. 801(d)(2) and Objections, filed June 22, 2018 (Doc. 744-1)(“James[1] Proffers”). The Court held a James Hearing on July 3, 2018. The Court makes Findings of Facts and particularized rulings on the admissibility of Plaintiff United States of America's proffered statements.

         FACTUAL BACKGROUND

         The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 2018 WL 5980443, at *1, filed November 14, 2018 (Doc. 932)(“MOO”). The Court incorporates that recitation here.

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 [(“FBI”)] 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.

         FINDINGS OF FACT

         Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court 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 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. 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 about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). The Court makes the following findings.

         1. The conspiracy to murder Shane Dix (“Dix Conspiracy”) included Defendant Christopher, a.k.a. Chris, Garcia (“C. Garcia”), Defendant Anthony Cordova (“A. Cordova”), Billy Cordova (“B. Cordova”), Mario Montoya, Steven Morales, Bobby Dominguez, Rocky Sanchez, and Carmelito Sanchez. See Draft Transcript of Hearing at 38:16-41:21 (taken July 3, 2018)(Court, Castellano, Morrissey)(“July 3 Tr.”)[2](agreeing to this finding of fact);[3] Letter from Fred Federici to the Court at 2 (dated June 29, 2018), filed July 2, 2018 (Doc. 766)(“Conspiracy List”).

         2. The conspiracy to distribute drugs in a jail or prison (“Distribution Conspiracy”) includes Richard Gallegos, A. Cordova, Melody Ortiz, Sylvia Gutierrez, and Dominic Pollock. See July 3 Tr. at 42:22-42:21 (Castellano, Court, Morrissey)(agreeing to this finding of fact); Conspiracy List at 2.

         3. A. Cordova is not a member of the conspiracy to intimidate and/or retaliate against a witness (“Intimidation Conspiracy”) or the conspiracy to murder Dwayne Santistevan, [4] Adam Vigil, [5] and Gregg Marcantel[6] (“Santistevan, Vigil, Marcantal Conspiracy”). See July 3 Tr. at 43:7-44:18 (Castellano, Court)(agreeing that A. Cordova is not a member of the witness Intimidation Conspiracy or the Santistevan, Vigil, Marcantel Conspiracy).

         PROCEDURAL BACKGROUND

         The FBI's SNM investigation resulted in this case and three other cases before the Court. See United States v. DeLeon, No. CR 15-4268 (“DeLeon”); United States v. Varela, No. CR 15-4269; United States v. Garcia, No. CR 15-4275. 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 DeLeon. In the end, the Court held one four-defendant trial (“First DeLeon Trial”) and one seven-defendant trial (“Second DeLeon Trial”). Across the two trials, the juries found eight of the eleven DeLeon Defendants guilty of violating Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. § 1959 (“VICAR”). See DeLeon, No. CR 15-4268, Jury Verdict at 1-3, filed March 12, 2018 (Doc. 1947); DeLeon, No. CR 15-4268, Jury Verdict at 1-5, filed May 25, 2018 (Doc. 2332).

         On April 21, 2016, a Grand Jury returned the first indictment in this case. See Original Indictment at 1, filed April 21, 2016 (Doc. 2). On March 9, 2017, a Grand Jury returned the Indictment, which superseded the initial indictment. See Indictment at 1. Several DeLeon Defendants are charged in this case -- Defendant Anthony Ray Baca, C. Garcia, Defendant Daniel Sanchez, and Defendant Arturo Arnulfo Garcia. Compare Indictment at 1, with DeLeon, No. CR 15-4268, Second Superseding Indictment at 1, filed March 9, 2017 (Doc. 947). Count 1 of the Indictment charges eleven Baca Defendants -- Baca, C. Garcia, Defendant Manuel Jacob Armijo, Defendant Frederico Munoz, Defendant Sergio Loya Rodriguez, Defendant Manuel Benito, Defendant Vincent Garduño, Defendant Mandel Lon Parker, Defendant Daniel Archuleta, D. Sanchez, and A.A. Garcia -- with engaging in a racketeering conspiracy contrary to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (“RICO”). See Indictment at 8-9. Count 2 alleges that C. Garcia and A. Cordova committed murder on or about February 4, 2005, in violation of VICAR. See Indictment at 54. Count 3 charges A. 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 54.

         Before the First DeLeon Trial, the Court held a full, several day James hearing, beginning on November 27, 2017. See DeLeon, No. CR 15-4268 JB, Transcript of Hearing at 10:12-24 (taken November 27, 2017)(Court), filed December 6, 2017 (Doc. 1545)(“Nov. 27 Tr.”)(granting the defendants' requests for a full James hearing). See also DeLeon, No. CR 15-4268 JB Defendant Daniel Sanchez's Motion in Limine to Preclude the Admission of Un-Confronted, Out of Court Statements Proffered by the Government at the James Hearing, filed October 6, 2017 (Doc. 1296). Before the Second DeLeon Trial, the parties agreed that the United States would submit a list of statements proposed for introduction at trial and that the Defendants would have the opportunity to object to the statements' admissibility. See Nov. 27 Tr. at 106:7-10 (Castellano)(“It's my understanding [the Trial 2 Defendants will] get the statements and they'll make a determination at that point whether they want to challenge the statements.”). See also DeLeon, 287 F.Supp.3d 1187, 1201-02, (D.N.M. 2018)(Browning, J.); United States v. DeLeon, United States' Notice of Proposed James Statements for Trial 2, filed March 8, 2018 (Doc. 1903). The Court and the parties reasoned that this process would enable a more focused analysis of the statements.

         1.The James Proffers.

         Through the United States' Notice of Proposed James Statements, filed June 22, 2018 (Doc. 744), the United States conveyed the James Proffers to the Court on June 22, 2018. See United States' Notice of Proposed James Statements at 1. The James Proffers contains the following statements and information on those statements:

Statement 1: Dix's girlfriend owed Chris Garcia money. Dix shot Garcia in a confrontation about that money. Garcia wanted Dix dead after that and was willing to pay for Dix to be killed.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Michael Patrick Sullivan

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or keep coconspirators abreast of an ongoing conspiracy's activities.

Statement 2: Chris Garcia paid Carmelito Padilla to hire Michael Snow but Snow never killed Dix.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Michael Patrick Sullivan

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 3: Chris Garcia put out a $10, 000 hit for Shane Dix.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Gilbert Angelo Serrano

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or to reassure members of a conspiracy's continued existence.

Statement 4: Chris Garcia wanted Dix killed while he was out of town so that he had an alibi.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 5:Chris Garcia had put money in Dix's books while Dix was in jail to mislead police that Garcia had forgiven Dix.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.

Statement 6: Chris Garcia talked to Anthony Cordova and Mario Montoya about the fact that Dix hung out at the Chevron.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 7: Anthony Cordova was concerned that people would be able to identify the car after the murder. Cordova said he needed to get rid of his car. The car was a 1990s reddish/maroon Pontiac or Buick with a square rear end.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.

Statement 8: Anthony Cordova and Mario Montoya saw Dix's vehicle at the gas station. Cordova told Montoya to shoot Dix there, but Montoya said they need to wait because there were so many people and cameras.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.

Statement 9: Cordova and Montoya asked Dix for drugs at the gas station. Dix called someone to get more drugs.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to prompt further action on the part of the conspirators and/or to reassure members of a conspiracy's continued existence.

Statement 10: Anthony Cordova suggested that he and Montoya go with Dix. Dix said no and told them he would be back with the drugs.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.

Statement 11: While Dix was on the phone inquiring about drugs, Anthony Cordova said he knew the person on the other line and asked to speak with him.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 12: Anthony Cordova told Montoya that he knew where Dix was headed and gave directions to Montoya on how to get there.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.

Statement 13: Anthony Cordova told Mario Montoya to drive when they were leaving the gas station to locate Dix.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.

Statement 14: Mario Montoya got his gun from Chris Garcia and believed Anthony Cordova did as well. Cordova told Montoya to put his gun under the seat.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 15: Anthony Cordova told Montoya to back up as Dix said, “It's me Shane. I got that for you.”

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.

Statement 16:Anthony Cordova was stalling and said “Who? Is that you Shane?”

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or to reassure members of a conspiracy's continued existence.

Statement 17: Anthony Cordova told Montoya to give him his gun and dumped his and Montoya's in the Rio Grande.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to allay a coconspirator's fears, and/or to avoid detection by law enforcement.

Statement 18:Chris Garcia gave Anthony Cordova a different car to drive after the murder.

Declarant: Anthony Cordova

Date: On or after February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to allay a coconspirator's fears and/or to avoid detection by law enforcement.

Statement 19:Montoya called Chris Garcia and told him the job was done by saying “cherry pie.”

Declarant: Chris Garcia

Date: On or after February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.

Statement 20: Following the murder, Montoya described the murder to Chris Garcia. Garcia gave Montoya money, drugs and forgave a drug debt of Mario Montoya. Cordova was leaving the house when Montoya got there.

Declarant: Anthony Cordova

Date: After February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to reassure members of a conspiracy's continued existence, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 21: Chris Garcia met with Montoya and Anthony Cordova and said Cordova was going to help kill Dix. Garcia wanted Cordova to help because he was more familiar with Dix's neighborhood.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 22: Chris Garcia told Steven Morales that he wanted Morales to kill Dix.

Declarant: Chris Garcia

Date: Around 2004

Source: Steven Morales

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 23: Steven Morales attempted to get Dix to meet up with Bobby Dominguez, an ex-

girlfriend, but Dix never took the bait.

Declarant: Chris Garcia

Date: Around 2004

Source: Steven Morales

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 24: Chris Garcia was going to pay Steven Morales $5, 000 and a pound of heroin to murder Dix.

Declarant: Chris Garcia

Date: Around 2004

Source: Steven Morales

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 25: Chris Garcia Offered [sic] to clear Mario Montoya's drug debt if he killed Dix.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 26: Chris Garcia gave Mario Montoya a gun to kill Dix but Montoya was arrested soon after.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 27: “I was in Vegas when Dix got hit so they wouldn't suspect me.” “That's how you do it.”

Declarant: Chris Garcia

Date: After the fact

Source: Gerald Archuleta

Basis for admission: Statement against interest.

Statement 28: “We're friends. If I go [to Las Vegas] and come back and it's [(the murder)] not done, we won't be friends.”

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or keep coconspirators abreast of an ongoing conspiracy's activities.

Statement 29: Cordova and Montoya gave Dix $50 dollars for drugs and expected Dix to take them to a secluded location to complete the transaction.

Declarant: Anthony Cordova

Date: On or before February 4, 2005

Source: Mario Montoya

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, and/or are statements regarding the roles of other coconspirators.

Statement 30:Cordova got rid of his car about a week later after the Dix murder.

Declarant: Anthony Cordova

Date: After February 4, 2005

Declarant: Mario Montoya

Basis for admission: Statement made to avoid detection by law enforcement.

Statement 31: Chris Garcia told Julian Romero that he wanted Shane Dix dead. Garcia attempted to hire Romero to kill Dix by offering to give Romero $10, 000 and a 9mm gun a few months before Dix was murdered.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Julian Romero

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 32: Chris Garcia asked Billy Cordova to kill Shane Dix.

Declarant: Chris Garcia

Date: On or before February 4, 2005

Source: Billy Cordova

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles

of other coconspirators.

Statement 33: Richard Gallegos told Melody Ortiz to contact a male and “tell him Tone sent you.”

Declarant: Richard Gallegos

Date: On or about June 13, 2016

Source: Jail call recording

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 34: Gallegos told Ortiz to find addresses to give to another male so that his “paperwork”[7] could be sent to him.

Declarant: Richard Gallegos

Date: On or about June 13, 2016

Source: Jail call recording

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.

Statement 35: Gallegos and Cordova called Ortiz and Sylvia Gutierrez to arrange for the delivery of drugs in to the facility

Declarant: Richard Gallegos, Anthony Cordova, Melody Ortiz, and Sylvia Gutierrez

Date: On or about June 13, 2016

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Source: Jail call recording

Statement 36: “‘Pup'[8] wants to send us a message to ‘Creeper'” -- who we believe was Jerry Armenta's “family that they will be harmed if he testifies for the state. ‘Pup' wants the family to know ‘Creeper' is fucking up. If he takes the stand against this pedo, against anybody, we're coming for your ass. ‘Pup' agrees that Mario is the best person to deliver the message.”

Declarant: Anthony Ray Baca

Date: On or about November 2015

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.

Statement 37: “‘Pup' and CHS[9] are talking with Mario Montoya. ‘Pup' says he is working on getting Mario guns.”

Declarant: Anthony Ray Baca

Date: On or about November 2015

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 38: “‘Pup' wants research to be done on where Vigil and Santistevan live. He believes that the warden lives on prison grounds on Oasis Street, but also observed other houses that could belong to Vigil or Santistevan. He says it will be easier to get them if they do not reside on the prison grounds. He also says he wants to bring down [Elmer] Bustos, a former Associate Warden, who ‘Pup' blames for sending him to the ADX.[10] Pup' does not specify that he wants Bustos hit, but it appears he wants the get him in trouble. ‘Pup' believes that Bustos owns a Santa Fe real estate company.”

Declarant: Anthony Ray Baca

Date: On or about October 2015

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 39: “Pup” and the CHS are talking about planning the hits and the best weapon to be used.

“Pup” says, “What's a good cuete[11] for that? It has to be a revolver, carnal, [12] not an automatic. Automatic might jam. Those are easier to put a silencer on, too, a homemade silencer, because it has a barrel.”

Declarant: Anthony Ray Baca

Date: On or about November 2015

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 40: “Pup” and the CHS are talking about Michael Snow. “Pup” tells the CHS, “Ask him if he could try to get me a cuete. If he could, just get one, and I'll have him give it to somebody.” Specifically, “Pup” asks for a revolver.

Declarant: Anthony Ray Baca

Date: On or about November 2015

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 41: To put this in context, this is happening on December 3, 2015. “Mario should have done the hit over the night. ‘Pup' and CHS are wondering if the feds are going to charge the SNM. ‘Pup' talks about the steps the feds would have to take, gather state evidence, bring in STIU [(Security Threat Intelligence Unit)] and local law enforcement.”

Declarant: Anthony Ray Baca

Date: not identified

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 42: “The CHS asked ‘Pup' if the SNM will get respect from the Mexican Mafia if Mario successfully kills the Secretary and all the carnales get sent into the federal system.

‘Pup' responds, ‘They already respect us. And with us going over there like that, with that type of fucking charge, oh, yeah, they fucking -- not only them' -- the Mexican Mafia --‘everybody else respects the fuck out of that shit.'”

Declarant: Anthony Ray Baca

Date: not identified

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.

Statement 43: “Pup” is talking about Jerry Armenta testifying. “And his family, his family gets hit. And that shit will hit the news, carnal. And they're going to say the only motive behind that has been because that fucker testified. That shit hits the news, too. That gives us more power. Because of that fact, everybody is going to know, a la verde, [13] they're going to hit my family, I'm never going to tell them.”

Declarant: Anthony Ray Baca

Date: not identified

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.

Statement at 44: He's referring to the magazine. He says, “Well, the firearm didn't have a magazine. It needs a magazine to be fully loaded.” So what Garcia is explaining to Montoya is: “Put the bullet in the fucker and then you can shoot it. Or you can get a clip and, you know, do it the right way. Order a clip.”

Declarant: Anthony Ray Baca

Date: not identified

Source: not identified

Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy and/or are statements regarding the roles of other coconspirators.

James Proffers at 1-23.[14]

         2. The James Proffers Reply.

         A. Cordova responded to the James Proffers. See Anthony Cordova's Reply to United States' Notice of Proposed James Statements, filed June 27, 2018 (Doc. 760)(“Objections”). A. Cordova takes the position that the United States cannot prove his involvement in any SNM conspiracy, as his connection to C. Garcia related to C. Garcia's personal revenge against Dix. See Objections at 2. A. Cordova addresses each statement in turn, and the Court addresses these objections infra in the Analysis. See Objections at 2-9.

         3. The Conspiracy List.

         The United States transmitted to the Court via email a summary of the conspiracies to which the United States refers in the James Proffers. See Conspiracy List. This summary lists four conspiracies: (i) the Dix Conspiracy, (ii) the Distribution Conspiracy, (iii) the Intimidation Conspiracy, and (iv) the Santistevan, Vigil, Marcantel Conspiracy. See Conspiracy List at 2.

         2.The Hearing.

         At the hearing on July 3, 2018, the United States began by summarizing the evidence that it would present on the Dix Conspiracy. See July 3 Tr. at 36:7-43:6 (Castellano). The United States admitted that it could not show that Carmelito Padilla was part of the Dix Conspiracy. See July 3 Tr. at 41:9-14 (Court, Castellano). The United States summarized that C. Garcia, A. Cordova, B. Cordova, Montoya, Morales, Dominguez, R. Sanchez, and C. Sanchez participated in the Dix Conspiracy. See July 3 Tr. at 41:18-22 (Castellano). The United States indicated that it might not prove that Michael Snow participated in the Dix Conspiracy. See July 3 Tr. at 42:15-18 (Castellano). A. Cordova raised an objection only to the statement that Snow contributed to the Dix Conspiracy. See July 3 Tr. at 44:3-4 (Morrissey). The Court indicated that it would consider whether to deem Snow a coconspirator. See July 3 Tr. at 44:22 (Court).

         The United States turned to the Distribution Conspiracy, and named as conspirators Gallegos, A. Cordova, Ortiz, Gutierrez, and Pollock. See July 3 Tr. at 45:11-14 (Castellano). The Defendants had no objections to this list. See July 3 Tr. at 46:9-10 (Morrissey). The Court noted, and the United States agreed, that A. Cordova was not part of the Intimidation Conspiracy. See July 3 Tr. at 46:11-48:3 (Court, Castellano).

         The United States then began discussing the statements it sought to introduce by averring that statements 4 through 18 are admissible. See July 3 Tr. at 49:18-24 (Castellano). The United States argued that statement 19, which Montoya made after the murder, also furthered the Dix Conspiracy or formed a separate conspiracy to conceal the murder, because, in the statement, C. Garcia uses the code word “cherry pie” to inform Montoya the murder occurred. See July 3 Tr. at 50:1-18 (Castellano, Court). The Defendants objected that, because the conversation occurred after the murder, it was not part of the Dix Conspiracy. See July 3 Tr. at 50:21-51:7 (Morrissey). The United States replied that it would not introduce the words “cherry pie” for their truth. See July 3 Tr. at 51:8-13 (Castellano). The Court indicated its intention to consider the issue. See July 3 Tr. at 51:14-17 (Court).

         The United States noted that statement 20 also was made after Dix' death, but argued that the statement largely involves conduct. See July 3 Tr. at 51:19-23 (Castellano). The United States also clarified that Montoya and C. Garcia, and not A. Cordova, made the statement. See July 3 Tr. at 52:20-24 (Castellano, Court). The United States explained statement 20 -- Montoya will describe the murder and his agreement with C. Garcia to commit the murder in exchange for forgiveness of his drug debt, and the ability to obtain “additional money and drugs.” July 3 Tr. at 52:18 (Castellano). See July 3 Tr. at 53:3-20 (Court, Castellano). The Court stressed that it would not admit Montoya's description of the murder, and the United States agreed that Montoya would state only that he described to C. Garcia the murder. See July 3 Tr. at 53:21-54:6 (Court, Castellano). The Defendants agreed to these statements' admission only if the United States clarifies that A. Cordova did not participate in the conversation. See July 3 Tr. at 53:14-19 (Morrissey). The United States could not confirm, however, that A. Cordova did not witness the exchange. See July 3 Tr. at 54:22-55:7 (Court, Castellano). A. Cordova also objected that C. Garcia could not have forgiven a drug debt without words, but the Court interjected that such a statement would not be hearsay. See July 3 Tr. at 55:10-22 (Morrissey, Court). The Court indicated that it would likely admit Montoya's story, but not the murder's description. See July 3 Tr. at 56:9-14 (Court).

         In turning to statement 21, the United States agreed with the Court that C. Garcia was the correct declarant. See July 3 Tr. at 56:16-18 (Castellano). The United States continued, stating that the Court should admit statements 21, 22, and 23. See July 3 Tr. at 56:20-57:4 (Castellano, Court). The United States clarified that Morales made statement 23. See July 3 Tr. at 57:4-5 (Castellano). The United States further summarized that statements 24, 25, and 26 are admissible and attributed in the James Proffers to the correct declarants. See July 3 Tr. at 57:11-23 (Court, Castellano). The United States explained that, for statement 26, it would introduce statements about a gun that C. Garcia gave to Montoya for Dix's murder and about C. Garcia's initial solicitations of Montoya for the murder. See July 3 Tr. at 58:2-23 (Castellano, Court). The Court indicated that it would further analyze those statements. See July 3 Tr. at 58:24-59:1 (Court).

         The United States noted that statement 27 is a statement against interest, and notes that statement 28 and other statements that C. Garcia made to Montoya and A. Cordova, support its reliability. See July 3 Tr. at 59:4-60:1 (Castellano). A. Cordova agreed to the statements' admission. See July 3 Tr. at 60:4-5 (Morrissey). The United States returned to the statements, noting that statement 28 is admissible and that statement 29 is admissible as A. Cordova's and Montoya's comments while negotiating a drug deal with Dix, which they used as an opportunity to follow him. See July 3 Tr. ...


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