Case 2:15-cr-04268-JB Document 1204 Filed 06/30/17 Page 1 of 225 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, Plaintiff, vs. No. CR 15-4268 JB 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. MEMORANDUM OPINION AND ORDER1 1In its Sealed Memorandum Opinion and Order, filed June 9, 2017 (Doc. 1187)(“Sealed MOO”), the Court inquired whether the parties had any proposed redactions to protect Case 2:15-cr-04268-JB Document 1204 Filed 06/30/17 Page 2 of 225 THIS MATTER comes before the Court on the: (i) Defendants’ Joint Motion to Sever Defendants Charged with Offenses in Counts 6 & 7, filed December 23, 2016 (Doc. 807)(“Motion to Sever”); (ii) Defendant Santos Gonzales’ Motion for a Severance of Defendant, filed January 27, 2017 (Doc. 858)(“Gonzales’ Motion to Sever”); (iii) Opposed Motion to Sever Counts Four and Five, filed January 31, 2017 (Doc. 868)(“A. Gallegos’ Motion to Sever”); (iv) Defendants Troup and Billy Garcia’s Motion to Sever Counts 1 and 2, filed February 2, 2017 (Doc. 882)(“Troup’s Motion to Sever”); (v) Defendant Javier Alonso’s Motion to Sever Count 3 and to Sever the Trials of Edward Troup and Javier Alonso, filed February 5, 2017 (Doc. 893)(“Alonso’s Motion to Sever”); and (vi) Defendant Santos Gonzales’ Amended Motion for a Severance of Defendant, filed February 7, 2017 (Doc. 901)(“Gonzales’ Amended Motion to Sever”). The Court held a hearing on February 7, 2017; May 9, 2017; and May 19, 2017. The primary issues are whether: (i) severance of Counts 6 and 7 from the fourteen other Counts set forth by the Superseding Indictment, filed April 21, 2016 (Doc. 367)(“Superseding Indictment”) and the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Second Superseding Indictment”), is required or appropriate; (ii) severance of Counts 4 and 5 from the fourteen other Counts set forth by the Superseding Indictment and the Second Superseding Indictment is required or appropriate; (iii) severance of Counts 1 and 2 from the fourteen other Counts set forth by the Superseding Indictment and the Second Superseding Indictment is required or appropriate; (iv) severance of Count 3, or of Defendant Javier Alonso individually, is required or confidential information within the Sealed MOO before the Court publishes a public version. See Sealed MOO at 1 n.1. The Court gave the parties 14 calendar days to provide notice of any proposed redactions. See Sealed MOO at 1 n.1. The parties have not contacted the Court or made any filings within CM/ECF to indicate that they have any proposed redactions. Consequently, the Court is now re-filing the Sealed MOO in an unsealed form. - 2 - Case 2:15-cr-04268-JB Document 1204 Filed 06/30/17 Page 3 of 225 appropriate; or (v) severance of Defendant Santos Gonzales2 is required or appropriate. Because the Court concludes that some severance is appropriate to ensure judicial efficacy, efficiency, and economy during a joint trial for the complex charges the Second Superseding Indictment raises, the Court will order severance in accordance with the Plaintiff United States of America’s proposal at the February 7, 2017, hearing on this matter, wherein the United States suggested two trial groupings. Accordingly, the Court will grant in part and deny in part the: (i) Motion to Sever; (ii) A. Gallegos’ Motion to Sever; (iii) Gonzales’ Motion to Sever; (iv) Troup’s Motion to Sever; (v) Alonso’s Motion to Sever; and (vi) Gonzales’ Amended Motion to Sever. The Court will sever for trial the Superseding Indictment’s Counts 6-12 from its Counts 1-5 and 13-15. The result is a trial for the Superseding Indictment’s Counts 6-12, and another, separate trial for the Superseding Indictment’s Counts 1-5 and 13-15. A Second Superseding Indictment was filed on March 9, 2017, after most of the severance motions were filed, adding an additional Defendant, Brandy Rodriguez, as well as an additional Count 16, both of which will be tried in the Counts 1- 5 and 13-15 grouping. FACTUAL BACKGROUND The Court takes its facts from both the Superseding Indictment and the Second Superseding Indictment. The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, filed October 28, 2016 (Doc. 753). See United States of America v. Angel DeLeon, 2016 WL 7242579 (D.N.M. 2016)(Browning, J.). See also United States v. DeLeon, 2016 WL 3124632 (D.N.M. 2016)(Browning, J.). The Court does not 2The Superseding Indictment and case caption identifies a “Santos Gonzalez.” Superseding Indictment at 1. Gonzales’ briefing, however, identifies a different spelling -- “Santos Gonzales.” Gonzales’ Amended Motion to Sever at 1. The Court will use Gonzales in this Memorandum Opinion and Order. - 3 - Case 2:15-cr-04268-JB Document 1204 Filed 06/30/17 Page 4 of 225 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 crimes that the Sindicato de Nuevo Mexico (Spanish for Syndicate of New Mexico)(“SNM”)3 allegedly committed through its members. Superseding 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.” Superseding 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.” Superseding Indictment at 3. SNM is a violent 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 Superseding Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Superseding Indictment at 3. After the PNM riot, SNM expanded throughout the state’s prison system and has had as many as 500 members. See Superseding Indictment at 3. SNM has approximately 250 members, comprised of “a ‘panel’ or ‘mesa’ (Spanish for table) of leaders who issued orders to subordinate gang members.” Superseding Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders 3Each of the Indictments in this case uses the term “Syndicato.” Superseding Indictment at 1-2. The Court has become aware, however, that the correct spelling of the Spanish translation for the English term “Syndicate” is “Sindicato.” Real Academia Española, Asociación de Academias de la Lengua Española, Diccionario de la Lengua Española, Sindicato (300th ed. 2014). The Court will use Sindicato. - 4 - Case 2:15-cr-04268-JB Document 1204 Filed 06/30/17 Page 5 of 225 outside the prison system. See Superseding Indictment at 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 profit from narcotics trafficking. See Superseding Indictment at 4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults.” Superseding Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Superseding Indictment at 4. If another gang does not abide by SNM’s demands, SNM manages to assault or kill one of the other gang’s members to show its power. See Superseding Indictment at 4. SNM’s rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Superseding Indictment at 4. 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 it superiority over others.” Superseding Indictment at 4-5. 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 Superseding Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Superseding Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Superseding Indictment at 7.