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United States v. Deleon

United States District Court, D. New Mexico

January 1, 2020

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 Acting Under Authority Conferred by 28 U.S.C. § 515 Albuquerque, New Mexico --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 Albuquerque, New Mexico --and-- Sarah M. Gorman Albuquerque, New Mexico Attorneys for Defendant Angel DeLeon

          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

          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

          Ray Velarde El Paso, Texas --and-- Steven Lorenzo Almanza Las Cruces, New Mexico 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

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendant Billy Garcia's Motion in Limine Regarding Alleged Bad Acts, filed October 10, 2017 (Doc. 1308)(“B. Garcia's First Motion”); (ii) Defendant Edward Troup's Motion in Limine Regarding Alleged Bad Acts, filed November 30, 2017 (Doc. 1504)(“Troup's First Motion”); (iii) Defendant Rudy Perez' Opposed Motion to exclude references to and Evidence of Unrelated “Enterprise” Acts, filed December 1, 2017 (Doc. 1512)(“Perez' First Motion”); (iv) Defendant Daniel Sanchez' Motion in Limine to Prohibit Government from Making Statements or Arguments that Improperly Suggest that Propensity Character Inferences Can or Should be Made from Extrinsic Act Evidence, filed December 1, 2017 (Doc. 1519)(“Sanchez' First Motion”); (v) Defendant Daniel Sanchez' Motion in Limine to Prohibit the Government From Introducing Evidence of Alleged “Bad Acts, ” filed December 1, 2017 (Doc. 1530)(“Sanchez' Second Motion”); (vi) Defendant Christopher Chavez' Motion in Limine Regarding Alleged Bad Acts, filed December 1, 2017 (Doc. 1531)(“Chavez' First Motion”); (vii) Defendant Allen Patterson's Motion in Limine Regarding Alleged Bad Acts, filed December 1, 2017 (Doc. 1532)(“Patterson's First Motion”); (viii) Defendant Anthony Ray Baca's Motion in Limine to Prohibit Government from Introducing Evidence of Alleged “Bad Acts, ” filed December 4, 2017 (Doc. 1538)(“Baca's First Motion”); (ix) Defendant Anthony Ray Baca's Motion in Limine to Prohibit Government Attorneys from Using Rule 405, 608 or 609 Character Evidence Without Judicial Approval, filed December 4, 2017 (Doc. 1539)(“Baca's Second Motion); (x) Defendant Carlos Herrera's Motion in Limine Regarding Alleged Bad Acts, filed December 7, 2017 (Doc. 1549)(“Herrera's First Motion”); (xi) Defendant Christopher Garcia's Motion in Limine to Prohibit the Government From Introducing Evidence of Alleged “Bad Acts, ” filed December 8, 2017 (Doc. 1555)(“C. Garcia's First Motion”); (xii) Defendant Rudy Perez' Motion in Limine Regarding Alleged Bad Acts, filed December 9, 2017 (Doc. 1558)(“Perez' Second Motion”); (xiii) Defendant Joe Gallegos' Motion in Limine to Prohibit the Government from Introducing Evidence of Alleged “Bad Acts, ” filed January 3, 2018 (Doc. 1602)(“J. Gallegos' First Motion”); (xiv) Defendant Daniel Sanchez' Second Motion In Limine To Prohibit Government From Introducing Evidence Of Alleged “Bad Acts” Based On Government's January 22, 2018 “Bad Act” Disclosure, filed January 24, 2018 (Doc. 1684)(“Sanchez' Renewed Motion”); (xv) Defendant Rudy Perez' Second Motion in Limine Regarding Alleged Bad Acts, filed January 24, 2018 (Doc. 1686)(“Perez' Renewed Motion”); (xvi) Defendant Carlos Herrera's Motion in Limine To Exclude Purported Rule 404(b) Evidence, filed January 24, 2018 (Doc. 1687)(“Herrera's Renewed Motion”); (xvii) Defendant Anthony Ray Baca's Renewed Motion In Limine To Prohibit Government From Introducing Evidence Of Alleged “Bad Acts”, filed January 25, 2018 (Doc. 1702)(“Baca's Renewed Motion”); (xviii) the United States' Motion in Limine Regarding Edward Troup, filed March 12, 2018 (Doc. 1976)(“First U.S. MIL”); and (xix) The United States' Sealed Motion In Limine To Admit Evidence Intrinsic To The Crimes Charged And Notice Of Other Crimes Or Bad Acts Pursuant To Rule 404(B), filed April 15, 2018 (Doc. 2114)(“Second U.S. MIL”). The Court held hearings on December 19, 2017; January 26, 2018; March 12, 2018; and April 3, 2018. The primary issue is whether the Plaintiff United States of America's proposed prior-acts evidence is permissible under rules 403 and 404(b) of the Federal Rules of Evidence to prove the enterprise element under18 U.S.C. § 1959 (“VICAR”), or whether such evidence is permissible for another purpose, such as to prove the SNM enterprise and its purpose, or as evidence intrinsic to the charged offenses. The Court concludes that the United States does not offer the First Trial Defendants' prior acts as character evidence under rule 404(b) of the Federal Rules of Evidence. Instead, the United States' prior-acts evidence is largely relevant, and not unfairly prejudicial under rule 403 of the Federal Rules of Evidence, to prove VICAR's enterprise element. The Defendants are correct, however, that some of the United States' proffered prior-acts evidence are irrelevant to this case. The Court concludes that the same holds true for the second trial, with the exception of Troup's, B. Garcia's, and A. Garcia's threats against the United States' witnesses, which are admissible under rule 404(b) of the Federal Rules of Evidence. Further, the Court concludes that the United States may not make propensity arguments or ask the jury to draw such inferences. Finally, the Court concludes that the United States may impeach any of the Defendants' character witnesses by asking questions about the Defendants' prior acts, provided that the United States has a good faith basis that the act occurred, and provided that the United States does not ask hypothetical questions pertaining specifically to the allegations in Counts 6-12 of the Second Superseding Indictment.

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

         This case deals with crimes that the Syndicato de Nuevo Mexico (“SNM”) allegedly committed through its members. 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 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 itself 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 D. 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 Frank Castillo 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, Martinez, Baca, Defendant Mauricio Varela, D. 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, D. 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.).

         RELEVANT PROCEDURAL HISTORY

         Early on in this case's litigation, the Defendants suspected that the United States would introduce a litany of their prior acts under a rule 404(b) exception. The Court, to assuage the Defendants' concerns, directed the United States to disclose a list of Defendant's prior bad acts which the United States may seek to admit at trial, whether under rule 404(b) or some other rule. See Transcript of Hearing at 249:21-250:18 (taken March 14, 2018)(Court), filed April 3, 2018 (Doc. 2028)(“March 14 Tr.”). The United States produced a letter for each Defendant with such a list, and each Defendant then responded by filing a series of motions aimed at excluding these prior acts as violative of rule 404(b) of the Federal Rules of Evidence. The Court also managed a series of motions and objections, on relevancy grounds, to the United States' proposed introduction of the Defendants' prior acts to prove VICAR's enterprise and racketeering elements. The Court ultimately decided each prior act individually, but, to safeguard the Defendants' rights, directed the United States to approach the bench at trial, before admitting any prior act, to satisfy for the Court and the Defendants that the United States had a proper foundation tying each prior act to the SNM.

         1.B. Garcia's First Motion.

         On May 22, 2017, the United States gave B. Garcia a comprehensive list of his prior acts which the United States may seek to introduce at trial. See Letter from James Tierney to Cori Ann Harbour Valdez and Patrick Burke (dated May 22, 2017), filed October 10, 2017 (Doc. 1308-1)(“First B. Garcia Notice”). That list includes a series of acts ranging from 1974 to 2007:

On or about June 13, 1974, Billy Garcia assaulted an officer.
On or about July 4, 1980, Billy Garcia was arrested for a DWI.
On or about August 13, 1980, Billy Garcia committed residential burglary.
On or about September 8, 1982, Billy Garcia committed armed robbery with a deadly weapon.
On or about March 14, 1986, Billy Garcia committed larceny.
On or about October 6, 1987, Billy Garcia committed armed robbery.
On or about December 7, 1987, Billy Garcia committed unlawful taking of a motor vehicle.
On or about December 6, 1990, while in the custody of NMCD, Billy Garcia was placed into Maximum Security Housing based on involvement in predatory type behavior.
On or about February 25, 1992, while in the custody of NMCD, Billy Garcia threatened a correctional officer.
On or about October 7, 1992, while in the custody of NMCD, Billy Garcia refused orders of a correctional officer.
On or about November 2, 1992, while in the custody of NMCD, Billy Garcia refused orders of a correctional officer, and assisted another inmate in destroying contraband.
On or between 1993 to 1998, Billy Garcia sponsored the admission of several people into the SNM.
On or about November 3, 1993, while in the custody of NMCD, Billy Garcia violated conditions of work release.
On or about December 3, 1993, while in the custody of NMCD, Billy Garcia tested positive on his breath.
On or about February 8, 1994, while in the custody of NMCD, Billy Garcia refused to submit to a urinalysis test.
On or about May 5, 1995, Billy Garcia assaulted officers, while causing a disturbance during a heroin overdose.
On or about February 17, 1996, Billy Garcia committed armed robbery.
On or about June 11, 1996, Billy Garcia committed great bodily harm and great bodily harm/injury of human by a vehicle.
On or about May 10, 1997, while in the custody of NMCD, Billy Garcia assaulted a correctional officer.
On or about June 4, 1997, while in the custody of NMCD, Billy Garcia possessed drugs and drug paraphernalia.
On or about September 15, 1999, while in the custody of NMCD, Billy Garcia refused to submit to a urinalysis test.
On or about March 14, 1999, while in the custody of NMCD, Billy Garcia refused to be restrained or removed from his cell and chemical agents were used to regain his compliance.
On or about May 20, 2003, while in the custody of NMCD, Billy Garcia possessed contraband items.
On or about November 14, 2003, Billy Garcia assaulted an officer.
On or about November 2, 2006, Billy Garcia committed aggravated battery with a deadly weapon, reckless driving and criminal damage.
On or about September 20, 2007, while in the custody of NMCD, Billy Garcia stated “I have no love for him, and I never had any love for him, ” regarding Gerald Archuleta

         First B. Garcia Notice at 1-3.

         B. Garcia responded with his First Motion, and argued that the United States' list is overly broad and contains many acts which are irrelevant to this case. See B. Garcia's First Motion at 2.

         B. Garcia notes that the list includes “acts committed as long as 43 years ago and range from a DWI to violating the conditions of work release to robbery and burglary.” B. Garcia's First Motion at 2. B. Garcia also attacked the list's lack of specificity, noting that “the list includes amorphous allegations such as that on ‘December 6, 1990, while in the custody of the NMCD, Billy Garcia was placed into Maximum Security Housing based on involvement in predatory type behavior' and that Mr. Garcia ‘tested positive on his breath.'” B. Garcia's First Motion at 2 (quoting First B. Garcia Notice at 1-2).

         B Garcia questions how these acts could fit into any rule 404(b) exception. See B. Garcia's First Motion at 2. B. Garcia also complains that the United States has not given any theory that ties the acts to “a fact of consequence” in this case so that B. Garcia can prepare his defense. B. Garcia's First Motion at 2. B. Garcia asserts that the United States Court of Appeals for the Tenth Circuit has “‘developed a rigorous criteria for admitting evidence of other crimes, wrong or acts pursuant to Rule 404(b), '” and that the United States cannot satisfy that test. B. Garcia's First Motion at 2-3 (quoting United States v. Biswell, 700 F.2d 1310, 1317 (10th Cir. 1983)). “Finally, ” B. Garcia argues, “even if the trial court determines that the other acts evidence satisfies the criteria for admission under Rule 404(b), it must balance the evidence's probative value and prejudicial effect under Fed.R.Evid. 403.” B. Garcia's First Motion at 4. B. Garcia does not, however, weigh in on how the Court should conduct such balancing.

         2.The United States' Response to B. Garcia's First Motion.

         The United States responded to B. Garcia's First Motion on October 30, 2017. See United States' Response to Defendant Billy Garcia's Motion in Limine Regarding Alleged Bad Acts, filed October 30, 2017 (Doc. 1385)(“B. Garcia Response”). The United States begins by asserting that B. Garcia's prior acts “are intrinsic to the charged [VICAR] offenses for which the defendant is facing trial, and thus do not implicate Federal Rule of Evidence 404.” B. Garcia Response at 1.

         The United States further argues that it “intends to offer as evidence [B. Garcia's] alleged bad acts at trial as evidence of [his] involvement with and allegiance to the SNM.” B. Garcia Response at The United States first provides a list of elements that it must prove to convict B. Garcia under VICAR:

First[:] The existence of an “enterprise” as defined in 18 U.S.C. § 1959 (b)(2);
Second[:] The charged enterprise engaged in, or its activities affected, interstate or foreign commerce;
Third[:] The charged enterprise engaged in “racketeering activity” as defined in 18 U.S.C. §§ 1959(b)(1) and 1961(1);
Fourth[:] The defendant committed one of the following crimes . . . or conspired or attempted to commit one of these crimes . . . which crime violated state or federal law: murder, kidnapping, maiming, assault with a dangerous weapon, assault resulting in serious bodily injury, threatening to commit a crime of violence; and,
Fifth[:] The crime of violence was committed either: (1) as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from the charged enterprise, or (2) for the purpose of gaining entrance to or maintaining or increasing position in the charged enterprise.

         B. Garcia Response at 2 (citing 18 U.S.C. § 1959). The United States asserts that the “evidence will show that SNM constituted an association-in-fact enterprise that was dedicated to selling drugs and using violence to protect its activities and reputation within the New Mexico Penal system.” B. Garcia Response at 2-3. As to B. Garcia's role, the United States asserts that it will prove that he “was a member of the SNM enterprise, and that he, as a leader/member/associate, shared the common purpose of carrying out unlawful activities in furtherance of the enterprise.” B. Garcia Response at 3.

         The United States also observes that it must “prove that Defendant Billy Garcia committed the violent crimes as consideration for something of value or to increase or to maintain his position in the enterprise.” B. Garcia Response at 3. The United States argues that it need not prove that B. Garcia's “‘sole or principal motive'” was to increase his standing in the SNM. B. Garcia Response at 3 (quoting United States v. Smith, 413 F.3d 1253, 1277 (10th Cir. 2005)). Instead, the United States argues, it must “‘only establish'” that B. Garcia's violent crimes amounted to an “‘integral aspect of his membership in the enterprise.'” B. Garcia Response at 3 (quoting United States v. Kamahele, 748 F.3d 984, 1008 (10th Cir. 2014)). To prove this element, the United States asserts that “[g]eneral testimony as to the expectation of or importance of violence to a criminal enterprise, coupled with a specific violent act, will satisfy” VICAR's motive requirement. B. Garcia Response at 3 (citing United States v. Phillips, 239 F.3d 283, 845 (7th Cir. 2001)). The United States maintains that it will introduce B. Garcia's prior acts “to establish at least one of three things: that [he] was an SNM member; that the [SNM] engaged in racketeering activity; and that the Defendant was motivated for the purpose of gaining entrance to or maintaining or increasing position in the enterprise.” B. Garcia Response at 4.

         The United States turns to its intrinsic-acts argument. The United States argues that B. Garcia's prior acts are intrinsic to the VICAR elements listed above and so are excepted from rule 404 altogether. See B. Garcia Response at 4. The United States does not identify whether all of B. Garcia's prior acts are intrinsic to the VICAR offenses or whether the United States chose those elements specifically because they are intrinsic, but relates that “‘evidence is . . . intrinsic to the crime charged if both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged.'” B. Garcia Response at 4 (quoting United States v. Arney, 248 F.3d 984, 992 (10th Cir. 2001)).

         The United States also argues that B. Garcia's acts are admissible under rule 404(b). The United States avers that the Tenth Circuit “takes an inclusive -- rather than exclusive -- approach” to rule 404(b), meaning that “evidence of other crimes of acts should be admitted ‘except that which tends to prove only criminal disposition.'” B. Garcia Response at 5 (quoting United States v. Tan, 254 F.3d 1204, 1208 (10th Cir. 2001))(emphasis in original). As to the 404(b) exception under which the United States would admit B. Garcia's prior acts, the United States asserts that B. Garcia's prior acts prove that he “was in company of other SNM members, recruited SNM members, was in altercations with rival gangs, and admitted to being a member of the SNM.” B. Garcia Response at 6. The United States notes that it must prove that B. Garcia committed the crimes charged in this case for a particular purpose, and so his “plan, motive, knowledge of the enterprise, and intent are thus relevant . . . and [his] prior acts are probative on those issues.” B. Garcia Response at 6.

         Last, the United States asserts that B. Garcia's prior acts are not unfairly prejudicial. See B. Garcia Response at 6-7. The United States notes that “unfair prejudice must do more than ‘damage the Defendant's position at trial.'” B. Garcia Response at 6-7 (quoting United States v. Tan, 254 F.3d at 1211). Instead, the United States asserts that “evidence is only unfairly prejudicial if ‘it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.'” B. Garcia Response at 7 (quoting United States v. Tan, 254 F.3d at 1211-12)(emphasis in B. Garcia Response). The United States asserts, without analysis, that, in B. Garcia's case, “the probative value of the evidence is not outweighed by any risk of unfair prejudice.” B. Garcia Response at 7. The United States also suggests that a limiting instruction can cure any prejudice which the prior acts cause. See B. Garcia Response at 7. The United States concludes by requesting that the Court admit B. Garcia's prior acts at trial. See B. Garcia Response at 7.

         3. Troup's First Motion.

         On May 22, 2017, the United States gave Troup a comprehensive list of his prior acts that the United States would introduce at trial. See Letter from Maria Armijo to Cori Ann Harbour-Valdez and Patrick Burke (dated May 22, 2017), filed November 30, 2017 (Doc. 1504-1)(“First Troup Notice”). That list included a range of Troup's alleged, prior acts:

On or about March 7, 1994, while in the custody of NMCD, Edward Troup assaulted inmate M.R. with a weapon, a homemade sharpened instrument (shank).
On or about September 13, 1995, while in the custody of NMCD, Edward Troup assaulted inmate R.P. without a weapon.
On or about December 4, 1995, while in the custody of NMCD, Edward Troup assaulted inmate M.G. with a weapon, a homemade sharpened instrument (shank).
On or about March 14, 1997, Edward Troup committed larceny and possessed a firearm.
On or about June 28, 2000, Edward Troup committed a parole violation.
On or about November 22, 2001, Edward Troup transferred a stolen motor vehicle.
On or about December 26, 2001, Edward Troup committed burglary, conspired to commit burglary, larceny and received/transferred a stolen vehicle.
On or about June 16, 2004, while in the custody of NMCD, Edward Troup assaulted inmate D.S. by throwing feces on the inmate.
On or about October 22, 2009, while in the custody of NMCD, Edward Troup threatened correctional officers.
On or about March 25, 2010, while in the custody of NMCD, Edward Troup threatened correctional officers and contributed to a disturbance.
On or about January 28, 2010, while in the custody of NMCD, Edward Troup verbally assaulted a correctional officer and possessed contraband items.
On or about May 24, 2011, Edward Troup contacted James Garcia and discussed SNM business.

         First Troup Notice at 1-2.

         Troup responded with his First Motion, contesting the authority by which the United States could introduce these acts at trial. See Troup's First Motion at 2. Troup argues that these acts “reach[] as far back as 23 years ago . . . and include[] acts which could not conceivably be admissible for any purpose such as committing a parole violation and that Mr. Troup contributed to a disturbance, verbally assaulted a correctional officer, and [] possessed contraband items.” Troup's First Motion at 2. Troup notes that these prior acts “cannot be used to show he had a propensity to commit the crime charged.” Troup's First Motion at 2 (citing United States v. Moran, 504 F.3d 1135, 1145 (10th Cir. 2007)). Troup also argues that the prior acts must be relevant and “close in time to the crime charged, ” but acknowledges that “there is no absolute rule regarding the number of years that can separate offenses.'” Troup's First Motion at 3 (quoting United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir. 1983)). Troup asserts that the United States' proffered list of bad acts “are not timely.” Troup's First Motion at 3.

         Troup anticipates that “the government may attempt to claim that Mr. Troup's prior bad acts will not be offered to prove his bad character.” Troup's First Motion at 4. Troup contends that these acts are not “probative of the government's VICAR allegations” because it is “illogical for the government to argue that the alleged bad acts are intrinsically related to the crime charged here.” Troup's First Motion at 4. Troup immediately pivots to argue, however, that “‘Rule 404(b) only applies to evidence of acts extrinsic to the charged crime.'” Troup's First Motion at 4 (quoting United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994)). Troup continues that his “alleged bad acts are completely irrelevant to the crime charged here.'” Troup's First Motion at 4.

         4.Perez' First Motion

         Perez filed his First Motion, and indicated that “[a]ll defendants join.” Perez' First Motion at 1. Perez notes that the United States “initially brought four cases related to SNM's alleged federal criminal activity” and “also charged additional defendants in one-off cases that are related to this case[.]” Perez' First Motion at 1-2. Perez acknowledges that the United States “must prove that ‘an enterprise [existed and] engaged in racketeering activity'” and that individual enterprise members furthered the enterprise's purposes. Perez' First Motion at 2 (quoting United States v. Feliciano, 223 F.3d 102, 116-17 (2d Cir. 2000)). Perez argues that the United States “should be precluded from making any references to or from introducing evidence related to the three other SNM cases, to Counts 1-5 and 13-16 of this indictment, and to other unrelated acts and one-off cases.” Perez' First Motion at 2.

         Perez interprets rule 403 of the Federal Rules of Evidence, and argues that the “only relevant racketeering activity” is that which occurred “‘during the time period relevant to the indictment.'” Perez' First Motion at 2 (quoting United States v. Pimentel, 346 F.3d 285, 299 (2d Cir. 2003)). Perez asserts that, even if the Court concludes that acts “unrelated to Counts 6-12” are relevant to those Counts, “any probative value of evidence of acts pertaining to Counts 1-5, 13-16, or the other SNM-related cases would be ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]'” Perez' First Motion at 3 (quoting Fed.R.Evid. 403). Perez asserts that these other acts' admission into evidence would “very likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter.” Perez' First Motion at 3 (citing United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999)).

         5. Sanchez' First Motion.

         Sanchez filed his First Motion on December 1, 2017. See Sanchez' First Motion at 1. Sanchez states that the “defendants jointly move for an order to prohibit the government from making statements or arguments that improperly suggest that propensity character inferences can or should be made from extrinsic act evidence.” Sanchez' First Motion at 1. Sanchez argues that the evidence that the United States will use to prove the SNM conspiracies to “assault inmate Romero and to murder Corrections' Secretary [Greg] Marcantel and STIU Administrator [Dwayne] Santestevan [sic] is susceptible to interpretation by the jury as character evidence of defendant Anthony Baca's propensity to order alleged SNM gang members to perpetrate violent acts.” Sanchez' First Motion at 1-2. Sanchez also asserts that the jury may interpret the Marcantel and Santistevan conspiracy evidence as proof of SNM members' propensity to follow “Baca's orders to commit violent acts.” Sanchez' First Motion at 2.

         Sanchez characterizes the rule against character evidence as grounded in a policy of preventing the jury's prejudice against the defendant. See Sanchez' First Motion at 2-3. Sanchez argues that rule 404(b), “[b]y it's [sic] plain language, ” is “not limited to ‘a defendant's' character.” Sanchez' First Motion at 2 (quoting Huddleston v. United States, 485 U.S. 681, 685-686 (1988)). Sanchez therefore asserts that the Court should extend rule 404(b)'s reach to other, uncharged individuals involved with SNM. See Sanchez' First Motion at 2 (citing United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004)). Sanchez does not specify the individuals whose acts he seeks to exclude from evidence.

         Sanchez then returns to his argument that the Court should sever Counts 6-7. See Sanchez' First Motion at 3. Sanchez disagrees with the Court's preliminary ruling from the bench rejecting his request that the Court sever Counts 6-7 from Counts 8-12. See Sanchez' First Motion at 3 n.1. Sanchez reiterates that request's arguments, that the United States' evidence for Counts 8-12

is not otherwise admissible against Sanchez; creates the serious risk of unfair prejudice based on the likelihood that the jury will make the propensity character inferences at issue here, regardless of the Court's limiting instructions; and unfairly and prejudicially buttresses the credibility of cooperators the government will use to attempt to prove Counts 6-7.

         Sanchez' First Motion at 3. Accordingly, Sanchez argues that, even if the Court denies his severance request, the United States should “not be permitted to use evidence of Counts 8-12 to encourage fact-finders to make improper and prejudicial propensity inferences with that evidence in evaluating the truth of the charges in Counts 6-7.” Sanchez' First Motion at 3. “If the evidence is admitted at a joint trial to prove that SNM is engaged in racketeering activity, ” Sanchez argues, “then the use of that evidence should be strictly limited to that narrow purpose and none other.” Sanchez' First Motion at 3-4. Sanchez then summarizes his request: the Court should prohibit the United States “from making statements or arguments that suggest that propensity character inferences can or should be made from the evidence it presents in its attempt to prove Counts 8-12 and applied to the jury's consideration” of Counts 6-7. Sanchez' First Motion at 4.

         6. Chavez' First Motion.

         The United States, responding to the Court's instruction that it provide each of the Defendants with a list of prior acts it would seek to introduce, provided Chavez his list on November 30, 2017. See Letter from Maria Armijo to Orlando Mondragon and John Granberg (dated May 22, 2017), filed December 1, 2017 (Doc. 1531-1)(“First Chavez Notice”).

         Chavez also attaches the United States' proffered list:

On or about August 3, 1994, Christopher Chavez committed battery against a household member, criminal damage to property, assault and failure to appear.
On or about June 16, 1995, Christopher Chavez possessed crack cocaine.
On or about July 20, 1995, Christopher Chavez committed criminal damage to public property, conspiracy to commit criminal damage to public property, and unauthorized graffiti.
On or about September 5, 1995, Christopher Chavez committed unlawful taking of a motor vehicle, receiving or transferring a stolen motor vehicle, larceny of a firearm, possession of burglary tools, tampering with evidence and conspiracy to commit a felony.
On or about October 1, 1996, Christopher Chavez committed unlawful taking of a motor vehicle, unauthorized graffiti personal or real property and parole violation.
On or about February 3, 1998, Christopher Chavez committed unlawful taking of a motor vehicle, unauthorized graffiti personal property or real property and probation violation.
On or about May 31, 1998, while in the custody of NMCD, Christopher Chavez tested positive for drugs.
March 20, 1999, Christopher Chavez committed unlawful taking of a motor vehicle, aggravated assault, contributing to the delinquency of a minor, possession of burglary tools and resisting/evading/obstructing an officer.
On or about April 1, 1999, Christopher Chavez committed unlawful taking of a motor vehicle, aggravated assault upon an officer, contributing to the delinquency of a minor, resisting/evading/obstructing an officer and reckless driving.
On or about June 6, 1999, Christopher Chavez possessed a destructive device.
On or about June 25, 1999, Christopher Chavez received and transported a stolen motor vehicle and conspired.
On or about August 13, 2000, while in the custody of NMCD, Christopher Chavez possessed drug paraphernalia.
On or about September 13, 2000, while in the custody of NMCD, Christopher Chavez along with SNM member Enrique Roybal assaulted inmate A.M.
On or about October 8, 2000, while in the custody of NMCD, Christopher Chavez possessed marijuana.
On or about October 15, 2000, while in the custody of NMCD, Christopher Chavez tested positive for drugs.
On or about December 21, 2000, Christopher Chavez committed aggravated assault with a deadly weapon and conspiracy.
On or about October 25, 2001, Christopher Chavez committed aggravated battery and was charged with habitual offender.
On or about March 17, 2006, while in the custody of NMCD, Christopher Chavez tested positive for drugs.
On or about October 31, 2009, Christopher Chavez committed burglary/breaking and entering, conspiracy and tampering with evidence.
On or about March 28, 2010, Christopher Chavez committed a narcotic violation and tampering with evidence.
On or about June 13, 2010, Christopher Chavez attempted to conceal his identity.
On or about July 10, 2010, Christopher Chavez committed burglary/breaking and entering, conspiracy and larceny. paraphernalia and committed tampering with evidence.
On or about September 10, 2010, Christopher Chavez committed a narcotic violation.
On or about March 27, 2011, Christopher Chavez committed burglary/breaking and entering and larceny.
On or about March 29, 2011, Christopher Chavez committed aggravated battery on a police officer and aggravated fleeing of a police officer.
On or about January 3, 2012, while in the custody of NMCD, Christopher Chavez possessed marijuana.
On or about April 22, 2014, Christopher Chavez committed aggravated battery on an officer and aggravated fleeing of an officer.

         First Chavez Notice at 1-3.

         Chavez responded to the United States' notice of “intent to introduce a laundry list of 28 bad acts.” Chavez' First Motion at 2. Herrera joins his co-Defendants in asserting that introducing these bad acts to the jury violates the rules against character evidence. See Chavez Motion at 2 (citing Fed.R.Evid. 404(b)(1). Chavez also disputes these acts' relevance, noting that the list includes “acts committed as long as 23 years ago and range from concealing identity to drug possession.” Chavez' First Motion at 2. Chavez asserts that the United States “‘must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts.'” Chavez' First Motion at 2 (quoting United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir. 1988)). Chavez asserts that “the Tenth Circuit has ‘developed rigorous criteria for admitting evidence of other crimes, wrongs or acts pursuant to Rule 404(b) [and has] held that the government first bears the burden of demonstrating how the proffered evidence is relevant to an issue in the case.'” Chavez' First Motion at 2 (quoting United States v. Biswell, 700 F.2d 1310, 1317 (10th Cir. 1983)). Chavez complains that the United States “has not offered an evidentiary hypothesis by which a fact of consequence in this prosecution may be inferred from any one or more of the other bad acts” which the United States intends to introduce. Chavez' First Motion at 3. Chavez alleges that the United States will introduce his prior acts “solely to prove [his] criminal disposition.” Chavez' First Motion at 3. Chavez further argues, consistent with his co-Defendants, that, should the Court conclude that the prior acts satisfy rule 404(b), the Court should nonetheless exclude the prior acts as unfairly prejudicial and so in violation of rule 403. See Chavez' First Motion at 4 (citing United States v. Cuch, 842 F.2d at 1176).

         7. Patterson's First Motion.

         Patterson filed his First Motion on December 1, 2017, and requested that the Court “prohibit the admission of any and all other bad acts evidence the Government may seek to introduce against him pursuant to Rule 404(b).” Patterson's First Motion at 2. Patterson asserts that he “has yet to be provided a list of Rule 404(B) [sic] prior bad acts, but given that Mr. Patterson has lived a life relatively free from crime, one can surmise that any alleged bad acts would relate mainly to occasional disciplinary actions in his prison file.” Patterson's First Motion at 2. Patterson then admits that he “has been convicted of two crimes in his life: Attempted Murder in 1996 (the offense which found him in the custody of the Department of Corrections) and DWI, a misdemeanor, in 2011.” Patterson's First Motion at 2. Patterson asserts that neither of those crimes “involve prison gang activity and serve no other lawful and relevant reason for admission under Rule 404(b).” Patterson's First Motion at 2. Patterson then proposes stipulating, “for purposes of trial, [] that he was lawfully committed to the New Mexico Department of Corrections at the time the sole act charged against him in this matter occurred.” Patterson's First Motion at 2-3.

         As support for his First Motion, Patterson argues that the United States “bears a heavy burden in seeking admission of other bad acts evidence.” Patterson's First Motion at 3. Patterson agrees with his co-Defendants that the United States must provide an “evidentiary hypothesis” tying each prior act with a relevant fact in the trial, and that the United States must, before introducing such evidence, “firmly establish that the prior act fits into one of the rule 404(b) exceptions.” Patterson's First Motion at 3. Patterson also agrees that rule 403 dictates that each prior act be “reasonably close in time to the crime charged” and, even then, may be excluded as unfairly prejudicial depending on each act's probative value. Patterson's First Motion at 3-4 (citing Fed.R.Evid. 403).

         8. Baca's First Motion.

         On November 30, 2017, the United States gave Baca a comprehensive list of his prior acts which the United States may seek to introduce at trial. See Email from Maria Armijo to Theresa Duncan and Marc Lowry (dated November 30, 2017), filed December 4, 2017 (Doc. 1538-1)(“First Baca Notice”). The list includes a range of acts spanning several decades:

On or about August 7, 1982, Anthony Ray Baca committed voluntary manslaughter.
On or about October 15, 1982, Anthony Ray Baca committed battery on a peace officer.
On or about August 17, 1987, Anthony Ray Baca committed conspiracy to receiving stolen property.
On or about August 24, 1987, Anthony Ray Baca committed conspiracy to receive stolen property.
On or about January 1, 1988, Anthony Ray Baca committed armed burglary, aggravated burglary and aggravated battery.
On or about June 22, 1989, while in the custody of the NMCD, Anthony Ray Baca and another SNM Gang member murdered another inmate.
In or about December 2009, Anthony Ray Baca, sent a covert message to SNM member Jonathan Gomez, AKA “Baby G” instructing him to assault another inmate.
On or about December 15, 2009, while in the custody of the NMCD, Anthony Ray Baca possessed heroin.
On or about December 28, 2009, while in the custody of the NMCD, Anthony Ray Baca possessed heroin and attempted to destroy it when discovered by a correctional officer; other SNM Gang members obstructed the correctional officer.
Prior to March 2014, while in the custody of the NMCD, Anthony Ray Baca ordered the murder of SNM Gang member J.M. because the gang had paperwork indicating J.M. had cooperated with law enforcement.
On or about October 22, 2015, Anthony Ray Baca said that he wanted K. S., from Las Cruces, hit because he was a suspected informant and owed SNM Gang member Carlos Hererra [sic] a.k.a. “Lazy” $800 for drugs.
On or about October 22, 2015, Anthony Ray Baca, said that SNM member Benjamin Clark, a.k.a. “Cyclone, ” had provided Anthony Ray Baca with Suboxone. Anthony Ray Baca complained that the drugs provided had been “short, ” resulting in other SNM Gang members not receiving their share of the drugs. A dispute within the SNM resulted, and SNM member L. M., a.k.a. “Psycho, ” was hit by SNM member A. E., a.k.a. “Ace.” On or about October 22, 2015, Anthony Ray Baca, said that SNM member Carlos Hererra [sic] and J. R., a.k.a. “BB, ” had made mistakes and both members would be hit.
On or about October 23, 2015, Anthony Ray Baca, said that he approved the SNM Gang hit on D.S.
On or about October 23, 2015, Anthony Ray Baca said that he had ordered SNM members in Las Cruces to hit rivals. SNM member J.B., a.k.a. “Greedy, ” hit a Burqueño and asked Anthony Ray Baca if he could be rewarded with a purple heart.
On or about October 23, 2015, Anthony Ray Baca, said that victim J.M. and SNM member Jerry Montoya were close friends. Anthony Ray Baca told Montoya that he needed to hit J.M.
On or about October 24, 2015, Anthony Ray Baca, said that SNM member R. B. was an informant, and he ordered SNM members F. Q., a.k.a., “Football Fred, ” and Leonard Lujan to hit him.
On or about October 24, 2015, Anthony Ray Baca, stated that he was brought into the gang after he assaulted another inmate on orders from SNM member D. S., Sr.
On or about October 24, 2015, Anthony Ray Baca, said that it would be best to hit NMCD officials D.S. and A.V. because they were the ones telling G.M. lies about the SNM Gang.
On or about October 24, 2015, Anthony Ray Baca, said he is sure he wanted the NMCD officials hit and said the worst thing that could happen to the gang is that they would be sent out of state.
On or about October 24, 2015, Anthony Ray Baca, said that he wanted research to be done on where NMCD officials lived. Anthony Ray Baca said that it would be easier to hit the NMCD officials if they lived off the prison grounds.
On or about November 11, 2015, while in the custody of the NMCD, Anthony Ray Baca participated in a recorded conversation with his girlfriend, where he advised his girlfriend to pass a message to another SNM Gang member to have an inmate killed. Anthony Ray Baca also instructed his girlfriend to smuggle narcotics to him in the prison so that he could distribute them to other inmates and told his girlfriend to pass a message to another SNM Gang member about an alliance between the SNM Gang and the Sureños Gang.
On or about November 11, 2015, Anthony Ray Baca requested Christopher Garcia to assist the SNM Gang in a “mission.” On or about November 15, 2015, Christopher Garcia and Anthony Ray Baca used coded language to discuss the acquisition of firearms for the ·SNM Gang. Christopher Garcia agreed to obtain a “couple” of guns and said that he already had firearms on hand.
On or about November 18, 2015, Christopher Garcia used coded language to tell Anthony Ray Baca that he would plant a firearm at a secret location to be retrieved by another SNM Gang member.
On or about November 19, 2015, while in the custody of the NMCD, Anthony Ray Baca ordered another SNM Gang member to threaten the family of a cooperating witness in a murder investigation.
On or about November 26, 2015, Christopher Garcia and Anthony Ray Baca used coded language to discuss a firearm that was to be provided to another member of the SNM Gang.
On or about November 29, 2015, Christopher Garcia supplied another person with a firearm to be used in the murder ·of G.M., according to the instructions of Anthony Ray Baca.
On or about November 30, 2015, Christopher Garcia used coded language to tell Anthony Ray Baca that he had provided a gun to another member of the gang to be used on the mission to kill G.M.

         First Baca Notice at 1-4.

         Responding, Baca filed his First Motion on December 4, 2017. See Baca's First Motion at 1. Baca states that the “other defendants in this case join this motion and the Government opposes it.” Baca's First Motion at 4. Baca begins by noting that the United States notified him that it intends to “introduce evidence of nearly 30 alleged bad acts.” Baca's First Motion at 1. Baca observes that some of the proffered acts occurred “more than 35 years ago” and that he committed some acts “years before the government alleges [he] joined the SNM.” Baca's First Motion at 1. Further, Baca notes, the United States “also lists acts committed by people other than Mr. Baca, ” such as the allegation that “SNM member Benjamin Clark, a.k.a Cyclone, had provided Anthony Ray Baca with Suboxone.” Baca's First Motion at 1. “Finally, ” Baca argues, “many of the alleged bad acts are the subject of this case, such as the allegation that Mr. Baca ordered the murder of Javier Molina as alleged in Counts 6 and 7 of the Second Superseding Indictment.” Baca's First Motion at 2.

         Baca asserts that the United States seeks to use these prior acts as character evidence in violation of rule 404(b) of the Federal Rules of Evidence. See Baca Motion at 2. Baca accordingly asserts that the “burden is on the government to show, at a pretrial evidentiary hearing if necessary, that its 404(b) evidence is admissible.” Baca's First Motion at 2 (citing United States v. Biswell, 700 F.2d at 1317). Baca also asserts that the “‘Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts.'” Baca's First Motion at 2 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985)). Baca argues that such a hypothesis must place the prior acts as an exception to rule 404(b), such as “‘intent, knowledge, motive,' or one of the enumerated exceptions, ” and the prior act “must have real probative value, not just possible worth; and must be reasonably close in time to the crime charged.'” Baca's First Motion at 3 (quoting United States v. Cuch, 842 F.2d at 1176). Baca asserts that the 404(b) exceptions require that the prior acts have occurred recently, and argues that “many of the bad acts the Government seeks to introduce are over thirty years old, ” and so, accordingly, are “far too remote in time to be relevant to any fact at issue in this case.” Baca's First Motion at 2-3.

         Baca avers that the United States has not offered such an “evidentiary hypothesis by which a fact of consequence in this prosecution may be inferred from any one or more of the other bad acts” which the United States offers. Baca's First Motion at 3. According to Baca, the absence of such a hypothesis, along with the United States' includion “all of Mr. Baca's prior convictions -- including for offenses committed long before he allegedly became a member of the SNM” -- renders it “apparent that the Government is seeking to introduce these bad acts solely to show Mr. Baca's purported criminal disposition, including an inference that he is more likely to have committed the charged criminal conduct due to those acts.” Baca 's First Motion at 3.

         “Finally, ” Baca argues, “even if this Court were to determine that the other acts evidence satisfies” rule 404(b), the Court “must balance the evidence's probative value and prejudicial effect under” rule 403 of the Federal Rules of Evidence. Baca Motion at 4. Baca quotes at length from United States v. Kendall:

[e]ven relevant evidence should be excluded under Rule 403 ‘if its probative value is substantially outweighed by the danger of unfair prejudice.' While trial courts have discretion in striking the balance between probative value and unfair prejudice, . . . they must be particularly sensitive to the potential prejudice that is always inherent in evidence of an accused's prior uncharged crimes or wrongs. . . . Although Rule 403 provides broad umbrella protection from unfair or undue prejudice, the specific provision in Rule 404(a) prohibiting evidence of uncharged crimes to show bad character or tendencies toward criminality not only reflects the special danger of other crimes evidence but should alert trial courts to be particularly careful in admitting such evidence.

         Baca Motion at 3 (quoting United States v. Kendall, 766 F.2d at 1436)(alterations in Motion). Baca asserts that “[a]ny balancing test would dictate that” the United States' proffered bad acts “should be inadmissible in this case.” Baca Motion at 4.

         9. Baca's Second Motion.

         Baca filed his Second Motion on December 4, 2017. See Baca's Second Motion at 1. Baca states that “the other defendants in this case have joined the motion.” Baca Second Motion at 1. Baca requests, “[p]ursuant to the Due Process Clause of the Fifth Amendment to the United States Constitution, ” that the Court prohibit the United States “from introducing, under Fed.R.Evid. 404, 405, 608, [and] 609, impermissible character evidence to the jury, ” and further requests that the Court “limit, for potential character witnesses for the defense, the scope of any cross examination so that the questioner cannot ask hypothetical question[s] of the witness that may, as the basis of the question, assume that any defendant is guilty.” Baca's Second Motion at 1. Baca states that “the United States has indicated . . . that with regard to Fed.R.Evid. 609, this motion is not opposed, ” but that, “concerning character evidence to be used at trial under Fed.R.Evid. 404, 405, and 608 . . . this motion is opposed.” Baca's Second Motion at 1.

         Baca notes that the United States alleges that Baca is an SNM leader, and so Baca “presumes that the United States may be tempted to present reputational or character evidence related to Mr. Baca's alleged leadership role in” SNM, “as well as other enterprise traits like the continuity of the enterprise's associations[.]” Baca's Second Motion at 2. Baca asserts that this evidence would violate the rules against character evidence, and so urges the Court to prohibit the United States “from introducing such evidence to the jury, like Mr. Baca's purported leadership status, in the form of reputation or opinion evidence from the witnesses at this trial.” Baca's Second Motion at 2. Baca also requests that,

should any defendant use a character witness for any trait that is allowed under Fed.R.Evid. 404[a](2)(A), the Court should prohibit the United States from asking any questions in the form of hypothetical questions that are based on the assumption that any defendant is guilty of any offenses alleged in the indictment.

         Baca's Second Motion at 2.

         As grounds for Baca's Second Motion, Baca notes that the Court has “broad discretion to control cross-examination” and may “prohibit hypothetical questions that assume the guilt of any defendant.” Baca's Second Motion at 2. Baca points to United States v. Polsinelli, in which the Tenth Circuit “reversed a defendant's conviction for drug distribution when the prosecution asked the defense character witness if his opinion about the defendant would change if the witness knew that the defendant had distributed drugs.” Baca's Second Motion at 2-3 (citing United States v. Polsinelli, 649 F.2d 793, 796-97 (10th Cir. 1981)). Baca contends that the Tenth Circuit held in United States v. Polsinelli that “hypothetical questions that assumed guilt violated the due process rights of the defendant, not simply the rules of evidence.” Baca's Second Motion at 2 (citing United States v. Polsinelli, 649 F.2d at 797). Accordingly, Baca seeks an order prohibiting the United States from “introducing reputation and opinion testimony . . . without first seeking judicial approval . . ., and to prohibit the prosecution from using guilt-assuming questions as part of any cross-examination of a defense character witness.” Baca's Second Motion at 3.

         10. Herrera's First Motion.

         On November 30, 2017, the United States gave Herrera a comprehensive list of his prior acts which the United States may seek to introduce at trial. See Letter from Maria Armijo to Michael Davis and Carey Bhalla (dated November 30, 2017), filed December 6, 2017 (Doc. 1549-1)(“First Herrera Notice”). The list includes a range of acts:

         Herrera attaches the United States' proffered list of his prior acts to his First Motion:

On or about September 24, 1991, while in a detention home, Carlos Herrera was arrested for possession of contraband.
On or about November 16, 1991, Carlos Herrera was arrested for criminal trespass.
On or about January 12, 1994, Carlos Herrera was arrested on an outstanding warrant for auto theft.
On or about January 18 and 19, 1994, Carlos Herrera, attempted to contact a victim/witness through a third party and threatened the witness's life.
On or about March 14, 1994, Carlos Herrera was arrested for aggravated battery and resisting/eluding officers.
On or about June 29, 1994, Carlos Herrera was arrested for aggravated assault on a police officer and aggravated battery on a police officer.
On or about September 8, 1994, while in the custody of NMCD, Carlos Herrera threatened to ...

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