United States v. Baca

447 F.Supp.3d 1149

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, D. New Mexico.

Filed March 20, 2020

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

Theresa M. Duncan, Duncan Earnest, LLC, Albuquerque, New Mexico and Marc M. Lowry, Rothstein Donatelli, LLP, Albuquerque, New Mexico, Attorneys for Defendant Anthony Ray Baca

Christopher W. Adams, The Law Office of Christohper W. Adams, P.C., Charleston, South Carolina and Amy Sirignano, Law Office of Amy Sirignano, P.C., Albuquerque, New Mexico, Attorneys for Defendant Christopher Garcia

Todd Bruce Hotchkiss, Todd B. Hotchkiss, Attorney at Law, LLC, Albuquerque, New Mexico, Attorney for Defendant Manuel Jacob Armijo

Louis E. Lopez, Jr., Louis Lopez Law -- Attorney at Law, El Paso, Texas, Attorney for Defendant Frederico Munoz

Donald F. Kochersberger, III, Business Law Southwest, LLC, Albuquerque, New Mexico, Attorneys for Defendant Sergio Loya Rodriguez

Susan Burgess-Farrell, Barry G. Porter, Burgess & Porter Law, LLC, Albuquerque, New Mexico, Attorneys for Defendant Manuel Benito

Diego R. Esquibel, The Barnett Law Firm, Albuquerque, New Mexico and R. Scott Reisch, Reisch Law Firm, LLC, Denver, Colorado, Attorneys for Defendant Vincent Garduño

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

James Baiamonte, Law Office of James P. Baiamonte Esq., Albuquerque, New Mexico and Ahmad Assed, Ahmad Assed & Associates, Albuquerque, New Mexico, Attorneys for Defendant Daniel Archuleta

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

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

Scott Moran Davidson, The Law Office of Scott M. Davidson, Albuquerque, New Mexico and Billy R. Blackburn, Billy R. Blackburn Law Office, Albuquerque, New Mexico, Attorneys for Defendant Arturo Arnulfo Garcia

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on: (i) the Defendant Anthony Cordova's Ex Parte Motion for New Trial, filed August 14, 2019 (Doc. 1108)("Motion"); (ii) the Ex Parte Supplemental Brief in Support of Ex Parte Rule 33 (B)(1) Motion for New Trial [Doc. 1108], filed September 11, 2019 (Doc. 1120)("Supplemental Brief"); and (iii) the oral motion for a new trial, made at the September 16, 2019 sentencing hearing. The primary issues are: (i) whether the Court should grant the Defendant Anthony Cordova a new trial, because, after trial, Cordova discovered evidence that Defendant Christopher Garcia, whom the United States presented as having a murder-for-hire arrangement with Cordova, told Agent Joseph Sainato of the Federal Bureau of Investigations ("FBI") that Garcia did not ask Cordova to murder Shane Dix and that Garcia never spoke to Cordova regarding Dix' murder after it happened; (ii) whether Garcia waived his privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States of America, because his additional risk of incrimination is neither substantial nor real; and (iii) whether the Court should require the United States to grant Garcia immunity or grant Cordova a new trial and acquit him if the United States does not grant Garcia immunity, because the United States' selective use of immunity violates Cordova's rights under the Due Process Clause of the Fifth Amendment. The Court denies the Motion, because: (i) Garcia's statements are not newly discovered evidence under United States v. Sinclair, 109 F.3d 1527 (10th Cir. 1997), because they are not material, because they are merely impeaching, and because they probably would not change the outcome of the trial; (ii) Garcia did not waive his privilege against self-incrimination under the Fifth Amendment, because his risk of additional incrimination is substantial and real; and (iii) the United States' selective use of immunity does not violate Cordova's due process rights.

FACTUAL BACKGROUND

The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 409 F.Supp.3d 1169 (D.N.M. 2019) (Doc. 1051)("MOO"). The Court incorporates that recitation here.

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

This case deals with the crimes that the ... [Syndicato de Nuevo Mexico] ... 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. See United States v. Garcia, 221 F. Supp. 3d 1275, 1277 (D.N.M. 2016) (Browning, J.).

MOO at 2-4 (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: one four-defendant trial and one seven-defendant trial. The juries of the two trials found eight of the eleven DeLeon Defendants guilty of violating the Violent Crimes in Aid of Racketeering Activity statute, 18 U.S.C. § 1959 ("VICAR"). See DeLeon, No. CR 15-4268, Jury Verdict at 1-3, filed March 12, 2018 (Doc. 1947); DeLeon, No. CR 15-4268, Jury Verdict at 1-5, filed May 25, 2018 (Doc. 2332). Four 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 15-4268, Second Superseding Indictment at 1, filed...