United States v. Deleon

308 F.Supp.3d 1229

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

No. CR 15–4268 JB

United States District Court, D. New Mexico.

Signed April 18, 2018

Fred Federici, Attorney for the United States, Acting Under Authority Conferred by 28 USC § 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

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

Russel 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, Attorneys for Defendant Eugene Martinez

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

John L. Granberg, Granberg Law Office, El Paso, Texas and Eduardo Solis, El Paso, Texas, Attorneys for Defendant Christopher Chavez

Nathan D. Chambers, Nathan D. Chambers, LLC, Denver Colorado and Noel Orquiz, Deming, New Mexico, Attorneys for Defendant Javier Alonso

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, Attorney 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

Jacqueline K. Walsh, Walsh & Larranaga, Seattle, Washington and Ray Velarde, El Paso, Texas, Attorneys for Defendant Timothy Martinez

Joe Spencer, El Paso, Texas and Mary Stillinger, El Paso, Texas, Attorneys for Defendant Mauricio Varela

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

George A. Harrison, Las Cruces, New Mexico, Attorney 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, McElhinney Law Firm, LLC, 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, Albuquerque, New Mexico, Attorneys for Defendant Rudy Perez

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

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

Angela Arellanes, Albuquerque, New Mexico, Attorneys for Defendant Shauna Gutierrez

Jerry A. Walz, Walz and Associates, Albuquerque, New Mexico, Attorneys for Defendant Brandy Rodriguez

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGETHIS MATTER comes before the Court on Defendant Billy Garcia's opening statement at trial on April 12, 2018. During that opening statement, B. Garcia displayed a PowerPoint Slide regarding Defendant Robert Martinez'¹ murder conviction:

Shortly after B. Garcia displayed that slide, the United States asked the Court if it could approach the bench. Out of the jury's earshot, the United States argued that the details of the offense underlying R. Martinez' murder conviction—as opposed to the conviction itself—are not admissible to show R. Martinez' character for truthfulness under rule 609 of the Federal Rules of Evidence. B. Garcia replied that he was not trying to use the facts underlying R. Martinez' murder conviction under Fed. R. Evid. 609. See Realtime Trial Transcript at 837:22–24 (held April 12, 2018)(Castle)("Tr.")("[W]e're offering it not because we're saying it's a [conviction.] [I]n fact the Court will see there is nothing about his conviction.").² B. Garcia argued, instead, that he was offering the details that his PowerPoint slide contains to attack R. Martinez' character for truthfulness:

We're talking about the level of dishonesty and this talks about his character for dishonesty, how much he's manipulated evidence in that case to try [to] hide his own guilt. That's what we're saying Mr. Martinez is doing in this case is he's manipulating evidence in other words his testimony ... to get out of his responsibility. So this is a man who ... takes his own clothes off and puts the victim's clothes on then puts it all in a car then torches the car to get away with the murder just like I think the Government is going to argue happened in the Burns matter, and show consciousness of guilt but this is a person who has shown a history of trying to get away with his crimes like the crime against Mr. Santistevan and Mr. Marcantel by trying to fool everyone and so we believe it's evidence of mis[conduct and] dishonesty.

Tr. at 837:24–838:19 (Castle). The Court gave an oral ruling ordering B. Garcia to take down the slide, but permitting B. Garcia to use R. Martinez' murder conviction and not the facts underlying that conviction contained on B. Garcia's PowerPoint slide, because "that would be much more information than we would normally give the jury to evaluate [under rule 609,] which is usually [just] the fact of conviction and what it is and maybe the date or something like th[at]." Realtime Transcript of Hearing (held April 12, 2018)(Court).

Under rule 608, Garcia can attack R. Martinez' credibility with reputation and opinion testimony regarding R. Martinez' character for truthfulness, see Fed. R. Evid. 608(a), but "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character," Fed. R. Evid. 608(b). Notwithstanding that extrinsic evidence prohibition, the Court "may, on cross examination, allow" specific instances of a witness' conduct "to be inquired into if they are probative of the character for truthfulness or untruthfulness." Fed. R. Evid. 608(b)(2). "Such inquiry is within the discretion of the trial court subject to rule 403." United States v. Morales–Quinones, 812 F.2d 604, 613 (10th Cir. 1987). Even when the Court permits inquiry under rule 608(b), however, witnesses may invoke their privilege against self-incrimination. See Fed. R. Evid. 608(b) ("By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness."). Further, parties asking questions about a witness' specific instances of conduct probative of truthfulness cannot evade rule 608's extrinsic-evidence restrictions by using extrinsic evidence to contradict the answers they receive, because extrinsic evidence is not ordinarily admissible to impeach a witness by contradiction on a collateral matter.³ See United States v. Warledo ("It is fundamental that it is not permissible to impeach a witness on a collateral or irrelevant matter elicited on cross-examination."). See also United States v. Walker, 930 F.2d 789 (10th Cir. 1991) ("A matter has been held to be collateral if it could not have been introduced in evidence for any purpose independent of the impeachment.").

In contrast, rule 609 of the Federal Rules of Evidence permits extrinsic evidence when "attacking a witness's character for truthfulness by evidence of a criminal conviction." Fed. R. Evid. 609(a). Extrinsic evidence of a criminal conviction, however, is not the same thing as extrinsic evidence of the facts underlying a conviction, and rule 609 permits the former and not the latter. See United States v. Albers, 93 F.3d 1469, 1480 (10th Cir. 1996) (stating that rule 609 evidence " 'should be confined to a showing of the essential facts of convictions, the nature of the...