Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Deleon

United States District Court, D. New Mexico

November 18, 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.

          Fred Federici Attorney for the United States and 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

          Susan M. Porter and Sarah M. Gorman Albuquerque, New Mexico Attorneys for Defendant Angel DeLeon

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

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

          Russell 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 Attorney for Defendant Eugene Martinez

          Joseph E. Shattuck Marco & Shattuck Law Firm Albuquerque, New Mexico and Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson

          Eduardo Solis El Paso, Texas and 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, Attorney at Law Denver, Colorado and Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso

          Laura E. Udall Cooper & Udall Law Offices Tucson, Arizona and 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

          Pedro Pineda Las Cruces, New Mexico and León Encinias León Felipe Encinias, Attorney at Law Albuquerque, 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

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

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

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney 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 CJM Law Firm 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 Law Office of Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez

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

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

          Keith R. Romero Keith R. Romero, Attorney and Counselor at Law Albuquerque, New Mexico Attorney for Paul Rivera

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez

          Jerry A. Walz Alfred D. Creecy Samuel Winder Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff United States' Notice of, and Motion in Limine to Admit Gang Expert Witnesses' Testimony, filed October 6, 2017 (Doc. 1299)(“Motion”). The Court held a hearing on November 27, 2017. The primary issues are: (i) whether the Court should allow Plaintiff United States of America to call gang expert witnesses, to testify about Syndicato de Nuevo Mexico (“SNM”); and (ii) if the Court allows such expert testimony, whether the Court should limit the proposed expert witnesses' testimony. The Court concludes that it will admit the gang experts' testimony to the extent that the gang experts describe gangs generally but will preclude testimony specifically about snm. Accordingly, the Court grants the Motion in part and denies it in part.

         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 facts that the Court provides 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 the truth. The Court recognizes that the factual background largely reflects the United States' version of events.

         This case deals with crimes that SNM allegedly committed through its members. See Indictment at 2. SNM, through its members, operates in the District of New Mexico, and its members engage in acts of violence and other criminal activities, “including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking.” Indictment at 2. The 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.

         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 assaulted and raped twelve correctional officers after taking them hostage. Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 inmates 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, including “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 to members 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: primarily the control and profit of 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 intimidates and influences smaller New Mexico Hispanic gangs to expand its power. See Indictment at 4. If another gang does not follow 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 in beatings and stabbings within the prison system. See Indictment at 4. SNM 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 generates income by having its members and associates traffic drugs and extort narcotic traffickers. See Indictment at 8. SNM members' recent conspiracy to murder high-ranking New Mexico Corrections Department (“NM Corrections Department”) Officials inspired the Federal Bureau of Investigation's (“FBI”) present investigation. See 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. See Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753)(“MOO”). Molina was J. Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility (“Southern New Mexico”). See MOO at 6, 2016 WL 7242579, at *3. The New Mexico Third Judicial District Attorney's Office accused J. 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 J. 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 J. 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, [1] Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, [2] and Defendant Daniel 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) defines 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.” 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, T. 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, Timothy Martinez, Baca, Varela, Sanchez, Herrera, and R. 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 conspiracy to murder charge. 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.)[3] -- 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).[4] There is also a separate prosecution of C. Garcia for drug crimes, see United States of America 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

         The FBI's SNM investigation resulted in this case as well as three other cases before the Court. See United States v. Varela, No. CR 15-4269; United States v. Garcia, No. CR 15-4275; and United States v. Baca, No. CR 16-1613. On June 9, 2017, the Court severed Counts 6-12 from Counts 1-5 and 13-16 in United States v. Deleon. See United States v. DeLeon, No. CR 15-4268, 2017 WL 3054511 (D.N.M. June 30, 2017)(Browning, J.). This decision creates two trials. Defendants Sanchez, Baca, Herrera, and Perez will be tried in the first trial; Defendants J. Gallegos, Troup, B. Garcia, Patterson, A. Garcia, and A. Gallegos will be tried in the second trial. Other Defendants listed in the Indictment have agreed to plea deals with the United States. The parties agree to begin the first trial on January 29, 2018. See Fourth Scheduling Order at 2, filed July 7, 2017 (Doc. 1205).

         1. The Motion.

         The United States filed the Motion on October 6, 2017. See Motion at 1. The United States notes that it will call Ronald Martin, Chris Cupit, and Sergio Sapien (“gang experts”) at trial, and summarizes their proposed testimony. Motion at 1-6. The United States says Martin will testify generally about prison gang activity and more specifically about: (i) the SNM's “history, culture, codes of conduct, methods of operation and communication, and behavior”; (ii) “specific membership and affiliation of the Defendants and the Victims in SNM”; (iii) prison weapons and New Mexico Corrections Department sanctions for gangs; and (iv) the SNM's rules and requirements for participation in violent crimes. Motion at 1-2. The United States then describes the proposed testimony in greater detail, discussing SNM's history, goals, iconography and the gang's “means and methods.” Motion at 5. See id. at 2-6.

         The United States describes the gang experts and their qualifications. See Motion at 6-9. First, Martin is a Sergeant at the NM Corrections Department. See Motion at 6. He has worked in the Security Threat Intelligence Unit (“STIU”) for eleven years. Motion at 6. He investigates prison-related drug trafficking and prison gangs -- specifically, the California Sureno prison gang. See Motion at 7. The United States argues that “Sergeant Martin's experience demonstrates specialized knowledge that is central to this trial, and essential to the United States' burden to prove beyond a reasonable doubt the VICAR charges that it brings against the Defendants in this case.” Motion at 7. The next proposed witness, Cupit, also works for the NM Corrections Department's STIU. See Motion at 7. He has worked for the STIU for six-and-a-half years as an Institutional Investigator helping to classify prison gangs, identify their members, and investigate their activity. See Motion at 7-8. The United States says Cupit “is a recognized expert in his field of prison gangs; he has provided prison gang training and seminars to all levels of corrections and to law enforcement agencies.” Motion at 8. The final proposed witness, Sapien, has worked for the NM Corrections Department for seventeen-and-a-half-years. See Motion at 8. He has worked with the STIU for over three years, and he also has provided gang training and seminars to law enforcement and corrections agencies. See Motion at 9. He has certified prison security threat groups, identified members, and otherwise investigated prison gangs. See Motion at 9.

         The United States concludes its brief with a discussion of the applicable law. See Motion at 9-11. The United States argues that the Court should “exercise its ‘special gatekeeping obligation'” to the gang experts' testimony, because they “have ‘a reliable basis in knowledge and experience' in their field.” Motion at 10 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). The United States notes that the Court has “‘broad discretion'” in assessing expert's reliability, Motion at 10 (quoting United v. Velarde, 214 F.3d 1204, 1208 (10th Cir. 2000)), and it argues that the proposed testimony does not fall “within ‘the narrow range of opinions still prohibited under Rule 704” of the Federal Rules of Evidence, Motion at 10 (quoting United States v. Richard, 969 F.2d 849, 855 (10th Cir. 1992)). The United States ends by arguing that the gang experts' testimony is admissible, because “there are no novel scientific principles at play and adequate assurances of reliability are set forth above.” Motion at 11.

         2. The B. Garcia Response.

         B. Garcia responds, and Defendants J. Gallegos, Troup, Chavez, A.A. Garcia, Rodriguez, Sanchez, Baca, C. Garcia, Herrera, Perez, and A. Gallegos join B. Garcia's response. See Response and Objection to Government's Proposed Gang Expert Evidence (DOC. No. 1299) on Sixth Amendment Confrontation and Evidentiary Grounds at 1-2, filed October 17, 2017 (Doc. 1337)(“B. Garcia Response”). B. Garcia notes that, according to the United States, the gang experts will give just one opinion -- that the SNM is an enterprise. See B. Garcia Response at 3. The rest of their testimony, B. Garcia argues, will be a “compilation of factual information that these officers and others have collected from testimonial statements from other gang intelligence officers and from inmates during investigative interviews.” B. Garcia Response at 3. B. Garcia says, ordinarily, expert testimony is not based on testimonial statements, but here, the gang experts' testimony “is entirely built on anecdotal evidence which, in reality, is almost entirely derived from reports from other law enforcement officers or out-of-court statements made by gang members to law enforcement during the course of investigations.” B. Garcia Response at 3. B. Garcia insists that this testimony violates the Confrontation Clause in the Sixth Amendment to the Constitution of the United States of America See B. Garcia Response at 4.

         B. Garcia notes that there “is no ‘forensic' or ‘expert' exception to the Confrontation Clause.” B. Garcia Response at 5 (citing Bullcoming v. New Mexico, 564 U.S. 647 (2011)(“Bullcoming”); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)(“Melendez-Diaz”)). B. Garcia also discusses gang expert cases from the United States Court of Appeals for the Tenth Circuit and the United States Court of Appeals for the Second Circuit. See B. Garcia Response at 5-7 (citing United States v. Garcia, 793 F.3d 1194 (10th Cir. 2015)(Hartz, J.); United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)(“Mejia”). He argues that these two cases

make clear that “[w]hen an expert's bailiwick is only “internal expertise” of the investigation at hand and the expert does no more than “disgorge . . . factual knowledge to the jury, ” the expert is “no longer aiding the jury in its factfinding [but is] instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense.”

B. Garcia Response at 6 (quoting United States v. Garcia, 793 F.3d at 1213; Mejia, 545 F.3d at 191). B. Garcia states that, in the Tenth Circuit, gang expert testimony based on out-of-court or testimonial gang member and victim statements is inadmissible, along with gang expert testimony about a defendant's status in a gang. See B. Garcia Response at 7. He argues that the United States' assurances that the expert information is not offered for the truth of the matter asserted are “not credible” in many cases, B. Garcia Response at 7, and that the Confrontation Clause will bar the gang experts' testimony about “the crime base, or the ‘enterprise,' ‘racketeering,' ‘enterprise engaged in, or its activities affected, interstate or foreign commerce' elements or the mens rea element of ‘for the purpose of gaining entrance to or maintaining or increasing position in an enterprise.'” B. Garcia Response at 8 (quoting 18 U.S.C. § 1959(a)).

         B. Garcia also warns the Court about the dangers of an expert witnesses testifying to his or her lay observations. See B. Garcia Response at 8-10 (citing and quoting United States v. Vera, 770 F.3d 1232 (9th Cir. 2014); United States v. Sandoval, 680 Fed.Appx. 713 (10th Cir. 2017); Mejia, 545 F.3d at 190-91, 202). He notes that a district court “must exercise its gate-keeping responsibilities in defining the proper bounds of such expert testimony, particularly where the challenged witness is offering a hybrid of expert and lay opinion, drawing not only from training and experience, but percipient facts, and facts obtained from witnesses who are unavailable at trial.” B. Garcia Response at 10 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)(“Daubert”); United States v. Freeman, 498 F.3d 893 (9th Cir. 2007)). B. Garcia also notes that different evidentiary rules govern lay and expert witnesses' testimony. See B. Garcia Response at 11.

         B. Garcia next turns to rule 404(b) of the Federal Rules of Evidence. See B. Garcia Response at 11. He argues that the gang experts' proposed foundation violates this rule, because the United States will use evidence of “other crimes, wrongs, or acts” to “prove the ‘character of a person in order to show action in conformity therewith.'” B. Garcia Response at 11 (quoting Fed.R.Evid. 404(b)). He notes that the gang experts' evidence concerning how the SNM's members acted in the past may be used to explain how the Defendants behaved “during the charged period of time.” B. Garcia Response at 11.

         B. Garcia then discusses why he believes each specific piece of evidence about which the gang experts will testify either derives from testimonial statements and/or violates rule 404(b). See B. Garcia Response at 12-22. B. Garcia objects to all proposed gang expert testimony. See B. Garcia Response at 23. He concludes that, if the Court does not carefully control and limit the testimony, it “could easily descend to a discussion of specific events recounted by others, with the proposed experts merely adding ‘unmerited credibility' to the sources, and summarizing evidence in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.