United States v. Baca

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY RAY BACA, a.k.a. "Pup," CHRISTOPHER GARCIA,SERGIO LOYA RORDIGUEZ, a.k.a "Churro," MANUEL BENITO,a.k.a. "Panther," VINCENT GARDUÑO a.k.a. "Fatal," MANDEL LON PARKER,a.k.a. "Chuco," DANIEL ARCHULETA, a.k.a. "Smurf," DANIEL SANCHEZ,a.k.a. "Dan Dan," ANTHONY CORDOVA, a.k.a. "Antone,"and ARTURO ARNULFO GARCIA, a.k.a. "Shotgun," Defendants.

No. CR 16-1613 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 29, 2018

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the United States' Sealed Motion Regarding Attorney Conflict, filed April 30, 2018 (Doc. 599)("Motion"). The primary issue is whether the Court must disqualify Billy Blackburn, who represents Defendant Arturo Arnulfo Garcia, because Mr. Blackburn represented James Garcia -- a potential witness for Plaintiff United States of America -- in a 1995 state-court prosecution for murder, evidence tampering, and firearm possession. The Court will not disqualify Mr. Blackburn, because Mr. Blackburn can continue to represent A. Garcia without violating his continuing ethical duties to J. Garcia as long as Mr. Blackburn does not cross examine J. Garcia. The Court will appoint an additional attorney to represent A. Garcia who can zealously cross examine J. Garcia so that Mr. Blackburn will not have to do so. Even if Mr. Blackburn's prior representation of J. Garcia implicates A. Garcia's constitutional right to the effective assistance of counsel, A. Garcia's knowing and intelligent waiver means that Mr. Blackburn does not need to withdraw from this case. Accordingly, the Court grants the Motion in part and denies it in part, and the Court will not disqualify Mr. Blackburn if the Court can secure an additional attorney for A. Garcia and A. Garcia waives any constitutional issues.

FACTUAL BACKGROUND

The Court takes its background facts from the Superseding Indictment, filed March 9, 2017 (Doc. 372)("Indictment"). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background is largely the United States' version of events and that the Defendants are all presumed innocent.

This case deals with the crimes that the Syndicato de Nuevo Mexico ("SNM") allegedly committed through its members. See Indictment ¶¶ 1, 3, at 1-2. The SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including, murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Indictment ¶ 1, at 2. The SNM constitutes an enterprise "as defined in Title 18, United States Code, Sections 1959(b)(2) and 1961(4), that is, a group of individuals associated in fact that engaged in, and the activities of which affected interstate and foreign commerce." Indictment ¶ 2, at 2. The enterprise is "an ongoing organization whose members/prospects/associates functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise." Indictment ¶ 2, at 2.

The SNM is a prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Indictment ¶ 3, at 2. During the riot,thirty-three inmates were killed, and over 200 were injured. See Indictment ¶ 3, at 2. After the PNM riot, the SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment ¶ 4, at 2. The SNM now has approximately 250 members, and "a 'panel' or 'mesa' (Spanish for table) of leaders who issue orders to subordinate gang members." Indictment ¶ 4, at 2-3. The SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment ¶¶ 3, 5, at 2-3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and the profit from narcotics trafficking. See Indictment ¶ 5, at 3. Members who fail "to show continued loyalty to the gang" may be assaulted or murdered. Indictment at 4. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment ¶ 6, at 3. If another gang does not abide by the SNM's demands, the SNM will assault or kill one of the other gang's members to show its power. See Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment ¶ 7, at 4. The SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Indictment ¶ 7, at 4. "Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], homosexuals, or sex offenders." Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See Indictment ¶¶ 6-8, at 3-4. The SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment ¶ 7, at 4. The SNM's recent activities in aconspiracy to murder high-ranking New Mexico Corrections Department officials inspired the Federal Bureau of Investigation's present investigation. See United States v. Garcia, 221 F. Supp. 3d 1275, 1277 (D.N.M. 2016)(Browning, J.). The other relevant facts giving rise to this case are as follows.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure states that, "[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record." Fed. R. Crim. P. 12(d). There are factual issues involved in deciding the Motion. Accordingly, the Court makes the following findings of fact in accordance with rule 12(d).

1. In June, 1994, J. Garcia shot and killed a man named Tony Lucero; he then hid the handgun that he used. See State v. Garcia, 94-CR-1507, Grand Jury Indictment at 1-2 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court April 30, 2018 (Doc. 599-1); State v. Garcia, 94-CR-1507, Verdict Forms at 1-4 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court April 30, 2018 (Doc. 599-1)("State Verdict").

2. In 1995, a jury convicted J. Garcia of Second Degree Murder, Tampering with Evidence, and Using a Firearm in Commission of Second Degree Murder. See State v. Garcia, 94-CR-1507, Record of Trial at 1 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court April 30, 2018 (Doc. 599-1)("State Trial Record"); State Verdict at 1-4.

3. Mr. Blackburn represented J. Garcia in that case. See State Trial Record at 1.

4. The murder in State v. Garcia was not SNM related, but J. Garcia was a member of a street gang at that time. See United States v. DeLeon, No. CR 15-4268, Transcript ofMotion Proceedings at 16:4-6 (taken April 4, 2018)(Blackburn), filed April 24, 2018 (Doc. 2150)("April Tr.")("[The murder] involves a gang matter, of which wasn't SNM, but for which he went to prison on."); id. at 146:25-147:1 (Blackburn); id. at 147:3-5 (Beck)("[W]e don't take the position that this was an SNM-related murder.").¹

5. The state court imposed a twenty-four year sentence. See State v. Garcia, 94-CR-1507, Judgment, Sentence and Commitment at 2 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court April 30, 2018 (Doc. 599-1).

6. In this case, Mr. Blackburn represents A. Garcia. See CJA 20: Appointment of Attorney Billy R. Blackburn for Arturo Arnulfo Garcia by District Judge James O. Browning, filed March 10, 2017 (Doc. 375)(text-only order).

7. The United States intends to call J. Garcia as a trial witness. See Motion at 2.

8. J. Garcia will not waive any conflicts of interest that arise as a result of Mr. Blackburn's present representation of A. Garcia. See April Tr. at 279:19-20 (Court).

9. Scott Davidson -- A. Garcia' second court-appointed attorney -- may be privy to confidential information relating to Mr. Blackburn's 1995 representation of J. Garcia.

10. The Court plans to appoint a third attorney -- Laura Udall -- to represent A. Garcia and cross examine J. Garcia.

11. The United States believes that more than ten years have passed since J. Garcia was released from confinement for his 1995 conviction and that rule 609(b) of the Federal Rules of Evidence consequently renders evidence of that conviction inadmissible to attack J. Garcia'scharacter for truthfulness, so the United States does not plan on eliciting that conviction during J. Garcia's direct examination.

12. When calling witnesses who are convicted criminals in United States v. DeLeon, the United States has consistently offered their convictions into evidence during its direct examinations. See, e.g., United States v. DeLeon, No. CR 15-4268, Transcript of Trial Proceedings at 10:12-11:10 (taken February 16, 2018)(Castellano, Martinez), filed April 3, 2018 (Doc. 2035)("I want to go over some of your criminal history with you."); United States v. DeLeon, No. CR 15-4268, Transcript of Trial Proceedings at 9:24-10:1 (taken February 8-9, 12, 2018)(Armenta, Castellano), filed April 3, 2018 (Doc. 2036)("Now, how many convictions do you have for drug trafficking?"); United States v. DeLeon, No. CR 15-4268, Transcript of Trial Proceedings at 18:15-18 (taken February 14, 2018)(Archuleta, Beck), filed April 3, 2018 (Doc. 2037)("Is this your judgment, sentence, and commitment when you were sentenced for...