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United States v. Herrera.

No. 19-2126. 10/27/2022. D.N.M. Judge Bacharach. Violent Crimes in Aid of Racketeering Act—Suppression of Evidence—Prior Bad Acts—Severance of Counts—Severance of Trials—Continuances—Non-Jurisdictional Constitutional Challenge—Impeachment Evidence—Cumulative Error.

October 24, 2022


The Sindicato de Nuevo Mexico (SNM) is a prison gang that has operated in the New Mexico state prison system for decades. Defendant Baca had headed the SNM, and defendants Sanchez and Herrera (collectively, defendants) had served as mid-level leaders. The government alleged that (1) defendants orchestrated the murder of fellow SNM member Molina and (2) Baca plotted the assassination of two corrections officials to retaliate for their enhancement of security measures after Molina’s murder. As to Molina, Baca allegedly had “paperwork” showing Molina’s cooperation with law enforcement and arranged for passage of the paperwork to other SNM members at a Las Cruces prison where Molina was housed. Herrera was housed in a pod next to Molina’s and allegedly passed the paperwork from Urquizo, who forwarded it to Rodriguez and Sanchez. When the paperwork arrived, SNM members in the Las Cruces prison were to kill Molina. When Sanchez obtained the paperwork, he allegedly organized the killing by obtaining a walker from Perez, ordering Rodriguez to make shanks out of the walker, telling Rodriguez and Martinez to restrain Molina, and ordering Armenta and Montoya to stab Molina.

The district court declared the case complex and ordered the government to disclose materially favorable information. The government responded by producing information long before the trial and supplementing the production right before the trial, during the trial, and even after the trial had ended. Because defendants and many of the government witnesses were in prison, the parties agreed to distribute discovery material through tablets. The government furnished much of the discovery through tablets, which the cooperating witnesses allegedly viewed to coordinate their testimony. After a six-week jury trial, defendants were convicted of conspiring to murder Molina and aiding and abetting that murder. Baca was also convicted of conspiring to murder two corrections officials.

On appeal, defendants argued that the district court should have ordered a new trial because the government waited too long to disclose four items of favorable evidence. Due process requires a new trial if the government suppresses evidence that is material to guilt or punishment. To show a deprivation of due process, a defendant must prove that the evidence was favorable, that the government suppressed it, and that the suppression resulted in prejudice. The prejudice element is satisfied only if the suppressed evidence was material. Here, there was no due process violation because (1) even though it was suppressed, the recording of Rodriguez’s phone call to his mother was not material, given other impeachment evidence against Rodriguez; (2) defendants failed to show that the recordings of Urquizo’s phone calls, which contained three references to what he’d seen on discovery tablets, clearly or obviously constituted a denial of due process; (3) disclosure of the FBI’s typed notes of an interview with Urquizo was made roughly a month after the interview, and they were not material; and (4) the FBI questionnaire about SNM was disclosed before opening statements, and it was immaterial.

Sanchez and Baca argued that the district court erred in allowing introduction of evidence of their prior bad acts. They preserved a general argument for exclusion under FRE 403. Here, the government presented testimony that Sanchez committed assaults in 2005 based on SNM’s practice of retaliating against rival gang members, and this testimony was relevant to show the SNM’s use of violence to exert power over rival gang members. And even if the court erred in allowing introduction of evidence about a murder Baca committed in 1989, the error would have been harmless, given extensive evidence of SNM’s violence and of Baca’s role in that violence.

Sanchez and Herrera argued that the district court erred in refusing to sever Counts 6 and7 (the murder of Molina) from Counts 9 and10 (the conspiracy to murder the two corrections officials). However, Sanchez and Herrera failed to show that this evidence was unfairly prejudicial and improper character propensity evidence, so the district court did not violate Rules 403 and 404(b) in admitting it. Further, FRCP 14 did not require severance, and the district court reasonably concluded that the interest in efficiency outweighed the risk of prejudice to Sanchez or Herrera, so there was no abuse of discretion in the denial of a severance.

Sanchez and Baca also asserted that the district court erred in refusing to sever their trials, alleging prejudice from other codefendants’out-of-court statements, many of which were recorded. However, procedurally, Sanchez and Baca waived the issue by failing to file a pretrial motion for severance of defendants. Substantively, the recordings corroborated other admissible evidence, and Sanchez and Baca did not show actual prejudice that outweighs the expense and inconvenience of separate trials. Further, even if actual prejudice otherwise existed, the district court alleviated the prejudice by issuing limiting instructions, so it properly exercised its discretion to deny severance.

Defendants also argued that the district court erroneously denied their two motions to continue the trial. The first motion was made about two months before trial, after the district court stated that it would disqualify Herrera’s lead counsel because of a conflict of interest. The second motion was made days before the trial was to begin and was based on the government’s delay in disclosures. The district court acted within its discretion in denying the first motion, reasoning that because the trial was still two months away, Herrera’s new legal team would have had enough time to prepare, and Herrera did not directly challenge this reasoning. As to the second motion, the court considered the pertinent factors and reasonably concluded that they weighed against the continuance. Accordingly, the district court properly exercised its discretion.

Defendants further challenged the constitutionality of the Violent Crimes in Aid of Racketeering Act’s (VICAR) “position clause,” which outlaws racketeering activity to maintain or enhance one’s position in an enterprise. This challenge was not jurisdictional; instead, it was based on a defect in the indictment, so defendants needed to raise it in a timely pretrial motion. Here, defendants didn’t file a pretrial motion on the constitutionality of VICAR’s position clause, so they waived the constitutional issue.

Herrera argued that the district court prevented a full and fair defense by prohibiting him from impeaching his own out-of-court statements. However, the district court acted within its discretion when excluding the evidence under FRE 801 and 806.

Lastly, defendants argued that even if the district court had not committed an individual error, the cumulative error doctrine warranted a new trial. Here, even if error had occurred in (1) introducing evidence regarding the 1989 murder and (2) the suppression of Rodriguez’s recorded phone call, the errors would have been harmless, and the outcome would have been the same. Therefore, there was no cumulative error.

The convictions 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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