United States v. Baca

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

No. CR 16-1613 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 26, 2019

MEMORANDUM OPINION AND ORDER¹

THIS MATTER comes before the Court on the Defendant Anthony Cordova's Motion for New Trial, filed August 21, 2018 (Doc. 903)("Motion"). The primary issues are: (i) whether the Court should grant Defendant Anthony Cordova ("A. Cordova") a new trial, because the Jury'sverdict² entered against A. Cordova which A. Cordova alleges goes against the weight of the evidence, because of the alleged unreliability of several witnesses³ -- Mario Montoya, Richard Gallegos, Billy Cordova, Steven Morales, and Federal Bureau of Investigation ("FBI") Special Agent Brian Acee; because the recorded conversation between Eric Duran, Defendant Chris Garcia, and Defendant Anthony Baca shows nothing more than that C. Garcia knew A. Cordova; because no physical evidence connects A. Cordova to the Dix murder; and because no evidence connects the Dix murder to the Syndicato de Nuevo Mexico ("SNM"); (ii) whether the Court should grant A. Cordova a new trial, because Plaintiff United States of America has not shown that the SNM engaged in racketeering acts or interstate commerce on or about the time of the Dix murder; (ii) whether the Court should grant A. Cordova a new trial for an alleged violation of the Fifth Amendment to the Constitution of the United States, because the United States commented during the United States' closing argument that, during a conversation at Central New Mexico Community College ("CNM")⁴, A. Cordova remained silent in response to Acee's commentsabout the SNM and M. Montoya (the "CNM conversation")⁵; (iii) whether the Court should grant A. Cordova a new trial, because the United States allegedly violated rule 16 of the Federal Rules of Criminal Procedure by not disclosing the CNM conversation's substance and by not disclosing,until June 18, 2018, the Federal Bureau of Investigation 302 Report, filed August 21, 2018 (Doc. 903-9)("CNM 302 Report"); (iv) whether the Court should grant A. Cordova a new trial, because the United States allegedly violated Brady v. Maryland, 373 U.S. 83 (1963)("Brady"), and Giglio v. United States, 405 U.S. 150 (1972)("Giglio"), by not disclosing the CNM conversation's substance and not revealing that Acee did not record the CNM conversation's full substance in the CNM 302 Report; and (v) whether the Court should grant A. Cordova a new trial for the United States' alleged prosecutorial errors in concealing from A. Cordova information about the CNM conversation, mischaracterizing at trial A. Cordova's silence, delivering a short closing argument and a long rebuttal, investigating the Dix murder in a manner not intended to ensure justice, and mischaracterizing evidence about M. Montoya and C. Garcia's November 29, 2015, conversation. The Court denies the Motion, because: (i) despite A. Cordova's contentions, the weight of the evidence supports the verdict; (ii) A. Cordova cannot use the Fifth Amendment to protect his silence in the CNM conversation, because A. Cordova did not invoke the right to silence during the conversation; (iv) the United States' late disclosure of the CNM 302 Report and its nondisclosure of Acee's comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments violate rule 16, but the violations are harmless; (v) the United States' failure to disclose that Acee excluded from the CNM 302 Report his comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments does not violate Brady and Giglio, because nondisclosure is not prejudicial; and (vi) the United States committed prosecutorial error by Acee's comments regarding M. Montoya during the CNM conversation and of A. Cordova's silence in response to those comments, and the United States did not commit prosecutorial error in characterizingA. Cordova's silence, structuring its closing, investigating the Dix murder, or characterizing M. Montoya and C. Garcia's November 29, 2015, conversation, but all of the alleged errors are harmless.

FACTUAL BACKGROUND

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

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

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

The SNM is a prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Indictment ¶ 3, at 2. During the riot, thirty-three inmates were killed, and over 200 were injured. See Indictment ¶ 3, at 2. After the PNM riot, the SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment ¶ 4, at 2. The SNM now has approximately 250 members, and "a 'panel' or 'mesa' (Spanish for ["]table["]) of leaders who issue orders to subordinate gang members." Indictment ¶ 4, at 2-3. The SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment ¶¶ 3, 5, at 2-3.

Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and the profit from narcotics trafficking. See Indictment ¶ 5, at 3. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment ¶ 6, at 3. If another gang does not abide by the SNM's demands, the SNM will assault or kill one of the other gang's members to show its power. See Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment ¶ 7, at 4. The SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Indictment ¶ 7, at 4. "Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], homosexuals, or sex offenders." Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See Indictment ¶¶ 6-8, at 3-4. The SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment ¶ 7, at 4. The SNM's recent activities in a conspiracy to murder high ranking New Mexico Corrections Department ["NM Corrections Department"] officials inspired the Federal Bureau of Investigation's [("FBI")] present investigation. SeeUnited States v. Garcia, 221 F. Supp. 3d 1275, 1277 (D.N.M. 2016)(Browning, J.).

MOO at 2-4, 2018 WL 5980443, at *1 (alterations added).

PROCEDURAL BACKGROUND

The FBI's SNM investigation resulted in this case and three other cases before the Court. See United States v. DeLeon, No. CR 15-4268 ("DeLeon"); United States v. Varela, No. CR 15-4269; and United States v. Garcia, No. CR 15-4275. United States v. Varela and United States v. Garcia did not go to trial, but the Court held two trials in DeLeon. In the end, the Court held one four-defendant trial and one seven-defendant trial. Across the two trials, the juries found eight of the eleven DeLeon Defendants guilty of violating the Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. § 1959 ("VICAR"), statute. See DeLeon, No. CR 15-4268, Jury Verdict at 1-3, filed March 12, 2018 (Doc. 1947); DeLeon, No. CR 15-4268, Jury Verdict at 1-5, filed May 25, 2018 (Doc. 2332).

On April 21, 2016, a Grand Jury returned the original indictment in this case. See Original Indictment at 1, filed April 21, 2016 (Doc. 2). On March 9, 2017, a Grand Jury returned the Indictment, which superseded the original indictment See Indictment at 1. Several DeLeon Defendants are charged in this case -- Baca, C. Garcia, Defendant Daniel Sanchez, and Defendant Arturo Arnulfo Garcia. Compare Indictment at 1, with DeLeon, No. CR...