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United States v. Cordova.

No. 20-2007. D.N.M. Per Curiam. Violent Crime in Aid of Racketeering Activity—Motions for New Trial—Sufficiency of the Evidence—Alleged Government Misconduct—Newly Acquired Evidence—Admissibility of Partially Inaudible Recording.

February 10, 2022

In 2015, law enforcement uncovered a plot by members of the Syndicato de Nuevo Mexico gang (SNM) to murder the New Mexico Secretary of Corrections and other public officials. A federal task force investigated those threats and unresolved homicides with suspected SNM ties. One of those homicides was the 2005 murder of Dix, a member of a rival street gang. The investigation led authorities to defendant. Following an interview with defendant, the government obtained a federal indictment charging him with two counts for Dix’s murder: (1) committing a violent crime in aid of racketeering activity (VICAR murder), and (2) using and carrying a firearm during the VICAR murder. A jury convicted defendant on both counts. By special verdict, as an element of the VICAR murder, it found that defendant’s “general purpose in committing murder was as consideration for a promise or agreement to pay anything of pecuniary value from the charged enterprise.” Defendant’s two post-trial motions for a new trial were denied. The court sentenced defendant to the statutory minimum term of life in prison.

Defendant argued on appeal that the district court erred in denying his first motion for new trial because (1) there was insufficient evidence to support the fourth element of the VICAR murder charge—that defendant murdered Dix as consideration for receipt of value from an enterprise engaged in racketeering activity, and (2) it wrongly held that the government’s failure to disclose an FBI agent’s impressions of defendant during their interview was not prejudicial. First, the government presented sufficient circumstantial evidence at trial from which a jury could find beyond a reasonable doubt that defendant made an agreement with SNM member Garcia to murder Dix, including testimony from four SNM members that Garcia solicited them to murder Dix, offering money, drugs, and debt forgiveness; and SNM member Montoya’s testimony that Garcia gave both him and defendant guns for the murder, and that he saw Garcia give defendant cash and drugs on the same night he also paid Montoya for the murder. Further, the government presented sufficient evidence from which a jury could find beyond a reasonable doubt that in making the agreement with defendant, Garcia acted on behalf of SNM, including an SNM member’s testimony that SNM “greenlighted” the murder of Dix for speaking against SNM and for shooting Garcia in 2004. Second, a defendant seeking a new trial based on a discovery violation must show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material. Here, the undisclosed evidence was not a crucial part of the government’s case and therefore was not material. Further, the witness testimony against defendant was substantial, and defendant’s re-cross and impeachment of the FBI agent weakened the testimony.

Defendant also argued that the district court erred in denying his second motion for a new trial, which was based on Garcia’s post-trial interview in which he stated that “he never asked” defendant to murder Dix, which was newly discovered evidence. However, based on the weight of other evidence and incriminating statements Garcia made in the post-trial interview, defendant failed to show that the newly discovered evidence would have probably produced an acquittal at a new trial. Accordingly, the district court did not abuse its discretion in denying the motion.

Lastly, defendant argued that the district court erred in admitting the largely unintelligible one-minute portion of the recording of Montoya and Garcia’s conversation as well as Montoya’s recollections of the conversation. Recordings objected to as unintelligible may be admitted unless the unintelligible portions render the recording untrustworthy. Here, several key words were audible, and defendant had the opportunity to attack the recording’s limitations. Therefore, the district court did not abuse its discretion.

The convictions, the orders denying the motions for a new trial, and the evidentiary ruling admitting the recording and related testimony were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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